Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1769 OF 2014
RAJESH GUPTA … APPELLANT
VERSUS
STATE THROUGH
CENTRAL BUREAU OF INVESTIGATION … RESPONDENT
O R D E R
This appeal has been filed questioning the validity of
the judgment passed on 25.3.2014 in Criminal Appeal No.
89 of 2009 by the High Court of Delhi confirming the
judgment dated 24.1.2009 passed by Special Judge,
Central District02, Delhi in C.C. No. 195 of 2001
convicting the appellant for the offences under Sections 7
& 13 (2) read with Section 13(1)(d) of the Prevention of
Signature Not Verified
Digitally signed by
Rachna
Date: 2022.04.20
17:43:31 IST
Reason:
Corruption Act, 1988 (for short “PC Act”) and the order of
sentence dated 27.1.2009 whereby for the offence under
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Section 7 of PC Act, the appellant was sentenced to 2 years
rigorous imprisonment with a fine of Rs. 15,000/ and in
default, further simple imprisonment for 30 days and for
the offence under Section 13(2) read with Section 13(1)(d) of
PC Act, rigorous imprisonment for 2½ years and fine of Rs.
15,000/, in default, simple imprisonment for 30 days.
Both the sentences were directed to run concurrently.
2. The appellant is an accused in a corruption case
under the PC Act. As per prosecution allegations, the
appellant, who was the Assistant Commissioner of Income
Tax, Circle 20(1) at the concerned point of time demanded
and accepted the bribe of Rs.15,000/ from the
complainant PW3 Madhu Bala in regard to scrutiny of her
case, which was pending with the appellant.
3. The Trial Court, vide judgment dated 24.1.2009,
concluded that on 7.3.2000, the appellant, while working
as public servant (Assistant Commissioner of Income Tax,
Circle 20(1)), demanded bribe from the complainant PW3
Madhu Bala and in pursuance of his demand, accepted
bribe/illegal gratification of Rs. 15,000/ from her on
9.3.2000 in his office (cabin/chamber). Thus by corrupt
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and illegal means, he abused his position as a public
servant and obtained pecuniary advantage for himself. The
appellant was found guilty for the charge under Sections 7
& 13(2) read with Section 13(1)(d) of PC Act. The High
Court relying upon the testimony of PW3Madhu Bala, who
was able to identify the conversation Exb. P2 (cassette)
from the transcript though found inaudible and without
proof of nontampering the same, concluded that the
demand was proved. On the point of acceptance, relying
upon the version of PW3 Madhu Bala, who was said to put
Rs. 15,000/ in a note sheet towards visitors side of the
table underneath a dakpad and in reference to the CFSL
report, proved the acceptance of bribe demanded by the
appellant. In addition, drawing presumption under Section
20 of PC Act, confirmed the findings of the Trial Court and
the sentence so awarded. Aggrieved by the said judgments,
this appeal has been filed.
4. We have heard Mr. V. Giri, learned senior
counsel for the appellant and Ms. Aishwarya Bhati, learned
Additional Solicitor General, appearing for the respondent
at length and have perused the record.
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5. In a case of corruption under the PC Act, what
is essentially required to be proved is demand of money or
illegal gratification by the accused, as well as acceptance
and recovery of the same from the accused with motive. In
the present case, as per the prosecution, the demand by
the appellant from the complainant is alleged to be on four
occasions. Twice on 07.03.2000 and again twice on
09.03.2000. On the first occasion on 07.03.2000, according
to the complainant, the demand is said to have been made
by the appellant through the Chartered Accountant
namely; Mr. Rajiv Jain, according to whom, the appellant
had demanded a sum of Rs.50,000/ for settlement of the
case in favour of the complainant. Again on the said date
itself, i.e. 07.03.2000, when she visited the office of the
appellant along with her employee (Mr. Krishan Kumar),
the demand made initially from her was of Rs.75,000/,
which is said to have been reduced to Rs.50,000/.
6. The complainant then approached Central
Bureau of Investigation (CBI) through some highlevel
connection of her (whose name she did not disclose), and
then on 09.03.2000 she visited the office of the CBI and
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met the concerned Officer (Mr. Awasthi) who, after talking
to her, advised her to speak to the appellant on phone with
regard to the matter of closing her scrutiny case, for which
the alleged demand of money was made by the appellant.
The complainant made the call to the appellant and the
telephone conversation between the complainant and the
appellant accused is said to have been recorded, in which
admittedly the offer of money was being made by the
complainant to the appellant when she said that she would
give only Rs.15,000/ to which no acknowledgement or
acceptance from the side of the appellant was there, except
that the appellant agreed to meet the complainant in his
office in the evening at about 04.00 p.m. The said
conversation has been produced before the Court as
Exb.P2.
7. The second incident on 09.03.2000 is said to be
when the complainant went to the office of the appellant at
about 04.00 p.m., accompanied by two independent
witnesses, being Constable Babita Kapoor, who was not
examined and PW5B.S. Chauhan (shadow witnesses), who
were both independent government officers, having been
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asked by the officials of the CBI to accompany the
complainant so that they could be witnesses of the alleged
illegal demand and gratification being handed over to the
appellant. However, the said two independent shadow
witnesses did not go inside the chamber of the appellant
when the alleged demand and transaction of money is said
to have taken place. It is the case of the prosecution that
the complainant had gone there alone inside the chamber
of the appellant, which was a shared room in which there
was a partition and other officers namely; PW6N.C. Swain,
DCIT and PW10T. Kipgen, ACIT were also present on the
other side of the partitioned room. The complainant had
been given a MicroCassette Recorder with a CreditCard
Type Transmitter and the shadow witness PW5B.S.
Chauhan was given the earpiece to the CreditCard
Transmitter to listen and record the conversation between
the appellant and the complainant. The said conversations
have been produced as Exb. P1 and P3. The currency
notes, which were to be handed over by the complainant to
the appellant, were laced with phenolphthalein powder. The
complainant is said to have placed currency notes, totaling
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Rs.15,000/, on the visitor side of the office table of the
appellant, wrapped in a piece of paper, which was then
covered with the dak pad. There is no allegation of the
money having been handed over personally to the appellant
or kept inside the drawer of his table.
8. The complainant is said to have then gone out
of the office of the appellant and thereafter the officers of
the CBI entered and conducted the trap proceedings. They
checked the appellant in person and also the drawers of his
office table and his briefcase, but did not find any money,
which was later recovered from the visitors side of the table
underneath the dak pad, which was only on the indication
of complainant after she was called again in chamber . The
phenolphthalein test of the appellant was conducted by
asking the appellant to dip his hands in Sodium Carbonate
solution, but the colour of the solution did not change pink.
However, still the water which was collected and sent for
CFSL examination, and in such examination report, traces
of phenolphthalein are said to have been found. While the
complainant was in the chamber of the appellant, the
conversation was to be recorded by her and also through
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the Credit Card Transmitter, but she skipped to push the
button of recorder, therefore, it could not be recorded. The
other two officers namely; PW6Mr. N.C. Swain, Dy. CIT
and PW10Kipgen, ACIT, who were in the same room with a
partition, did not support the allegation of demand and
acceptance of bribe by the appellant. It was in these facts
that the appellant is said to have been made accused and
convicted in the case.
9. As regards the alleged demand at the pretrap
stage, it is said to have been made first time on 07.03.2000
through the Chartered Accountant namely, Mr. Rajiv Jain
and second time when complainant visited the office of the
appellant on the same date i.e. 7.3.2000 along with her
employee, Krishan Kumar. To prove the said two demands
on 7.3.2000, neither Rajiv Jain, Chartered Accountant nor
Krishan Kumar (employee of the complainant) have been
examined in the Court. It is to be observed that before the
accused is called upon to explain the foundational fact of
demand and acceptance, it must be proved by the
prosecution by cogent evidence. The testimony of the
complainant, who is an interested or partisan witness with
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the success of trap, must be tested in the same way as that
of any other interested witness. Except the testimony of
PW3 Madhu Balal, no other material has been brought on
record to prove the said demand. Therefore, in our
considered view, pretrap demand on 7.3.2000 has not
been proved by the prosecution, which is a foundational
fact of the case. In our view, the finding recorded by the
Trial Court to prove the pretrap demand i.e. on 7.3.2000 is
without any evidence on record and based on erratic
evaluation, which is mechanically confirmed by the High
Court.
10. At pretrap stage, the third demand, as alleged,
was made on 9.3.2000 on the basis of a telephonic
conversation recorded in the office of CBI. As per the
testimony of PW3Madhubala, second cassette Exb P2 is
the conversation recorded in the office of CBI. The
transcript is in the shape of a statement of complainant
under Section 161 Cr.P.C.. The said recording Exb. P2 was
inaudible when played in the court during the statement of
PW3 Madhu Bala. As per her request, it was replayed,
then only PW3 could identify part of the conversation
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taking clue from the transcript. About some part of the
recording in the statement, she said that her car became
out of order and she offered about Rs. 15,000/, but she
could not gather other dialogue spoken by the accused,
Rajesh Gupta clearly, except to agree for meeting the
appellant at 4 P.M. The net conclusion is that the said
conversation was inaudible, as has rightly been observed
by the High Court in paragraph 48 of the impugned
judgment.
11. The argument of the counsel for the appellant
has substance that transcript cannot be produced in the
form of a statement of the complainant under Section 161
Cr.P.C. because it was a conversation with the accused and
cannot be her own version. At the same time, from the
evidence brought on record, the said statement in the
shape of transcript was of 11.6.2001, whereas the alleged
incidence occurred 15 months prior thereto i.e. on
9.3.2000. The accused applied to the Trial Court to supply
the transcript of the conversation, if any, prepared in the
office of CBI, but at the time of hearing of the said
application, the Public Prosecutor made a statement
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before the Court on 1.4.2002 and said that no transcript
was prepared from the audio cassette Exb. P2, hence could
not be supplied to the accused by Court, and his
application for supply of transcript was disposed of on the
basis of the statement made at the Bar by the Public
Prosecutor. Had the transcript, if any, been with the
prosecution on 11.6.2001, there was no reason for the said
statement having been made before the Court. Thus, the
said transcript, on the basis of which the clue is taken by
the appellant while hearing the inaudible cassette Exb. P2
in the Court, was highly doubtful which, in our view,
cannot be relied upon. It is not out of place to observe that
conversation of complainant and appellant in the office of
CBI was recorded on the aid and advise of Mr. Awasthi and
entire setup for recording was arranged by him, but he
was not produced as a witness by prosecution to prove the
same.
12. On the issue of evidentiary value and credibility
of the recording in the cases of trap, the law is wellsettled
in the case of 1985
Ram Singh vs. Col. Ram Singh
(Suppl) SCC 611, wherein this Court held that tape
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recorded statement is admissible in evidence if the voice of
the speaker is identified by the maker of the record and
other persons recognizing his voice. In case, the maker is
unable to identify the voice, strict proof would be required
to determine whether or not, the said voice is of alleged
speaker. The accuracy of the taperecorded statement
must be proved by the maker of the record by satisfactory
evidence, direct or circumstantial. The possibility of
tampering with, or erasure of any part of the taperecorded
statement must be totally excluded. The voice of the
particular speaker must be clearly audible and must not be
lost or distorted by other sounds or disturbances,
otherwise, the transcript as prepared, is inadmissible in
evidence.
13. In view of the above discussion, it is clear that
the pretrap recording made in the office of CBI and
produced as Exb. P2 and stated by PW3 Madhu Bala in her
statement with the clue of transcript is not testified with
the touchstone of the law laid down in the case of Ram
(supra). As apparent from the record, the finding
Singh
recorded by the High Court that the said cassette is
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inaudible, PW3 Madhu Bala, during playing of the cassette
in the court, stated about some of the portion of the
recording looking to the transcript. Once the preparation of
the transcript itself is in question, as discussed above, clue
cannot be taken from the same and the inaudible cassette
cannot be relied upon. Therefore, in the opinion of this
Court, the pretrap recording for demand in the office of
CBI vide Exb. P2 on 9.3.2000 has not been proved.
14. The shadow witness PW4Virendra Prasad was
present at the time of conversation of the complainant and
the appellant on 9.3.2000 in CBI office. In his Court
statement, he said that the offer was made by the
complainant to the appellant and no demand at the
instance of the appellant was made. While, analyzing the
testimony of this witness, the Trial Court has rightly
observed that from the testimony of PW4, it is clear that no
money was demanded by the appellant/accused. The other
shadow witness PW5 B.S. Chauhan, who heard about the
talk and was present in the office of CBI states that the
complainant had given offer of Rs. 50,000/ but there was
no positive response showing demand on behalf of the
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appellant. He said in examinationinchief that “ aajao
dekh lege ”, but in crossexamination, it is specifically
stated by him that there was no demand of money from the
side of the appellant/accused. After due appreciation of
the aforesaid, it is clear that the conversation Exb. P2 is
inaudible and not proved. The said conversation which
was tried to be explained on the basis of the transcript is
inadmissible in evidence and that too in a statement
recorded under Section 161 Cr.P.C. of the complainant.
The transcript dated 11.6.2001 is doubtful, more so in view
of the Trial Court order dated 1.4.2002 when it was
recorded that there was no transcript avaibable. Thus, in
reference to inadmissible transcript, no inference or even
the preponderance of probability of demand can be
established.
15. The fourth demand, as alleged, was on 9.3.2000
in the office of the appellant at the time of trap. In this
regard, the complainant was advised to accompany PW5
B.S. Chauhan and lady Constable Babita Kapoor. As per
the testimony of PW3 Madhu Bala, it is clear that PW5 B.S.
Chauhan and lady Constable Babita Kapoor did not
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accompany her to the chamber, which initially she said was
out of their own will, but later she stated that she herself
asked them not to accompany her otherwise the accused
would not accept the bribe. Therefore, at the time of the
trap, it is only the complainant who went inside the
chamber of the accused. She went in the chamber along
with MicroCassette Recorder and a Credit Card Type
Transmitter, the earpiece of which was with PW 5 B.S.
Chauhan. As per the testimony of the complainant, it is
clear that she skipped to start the MicroCassette Recorder,
which she was having at the time of trap. Therefore, there
is no recording of the conversation between the accused
and the complainant during trap on 9.3.2000 and its
transmission in the Credit Card Transmitter was also not
possible. Further the Court has rightly found that both
these exhibits Exb. P1 & P3 were inaudible as admitted in
the statement of PW3 Madhu Bala itself.
16. In view of the above discussion, except for the
testimony of PW3 Madhu Bala (complainant), there is no
corroborative evidence of demand, either on 7.3.2000 or
9.3.2000. The law is wellsettled by the judgments of this
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Court in
Panna Damodar Rathi vs. State of
Maharashtra (1979)4 SCC 526 and Ayyasami vs. State
(1992)1SCC304, whereby it has been
of Tamil Nadu
clarified that the sole testimony of the complainant, who is
the interested witness, cannot be relied upon without
having corroboration with the independent evidence.
17. For an offence under Section 7 of PC Act, the
demand of illegal gratification is a sine qua non to prove the
guilt. Mere recovery of currency notes cannot constitute an
offence under Section 7 of PC Act, unless it is proved
beyond reasonable doubt that accused voluntarily accepted
the money, knowing it to be a bribe. The proof of
acceptance of illegal gratification can follow only if there is
proof of demand.
18. In view of the foregoing, there is no iota of
evidence by which the demand can be proved. Thus, the
conclusion of the Trial Court and the High Court to prove
the demand is based on surmises and erratic approach
ignoring the legal position as enunciated, which cannot be
sustained on the facts of the case.
19. Reverting to the issue of acceptance of demand,
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it is not out of place to refer the judgment of
Meena (Smt)
w/o Balwant Hemke vs. State of Maharashtra (2000)5
SCC 21 wherein this Court held that mere recovery of the
currency notes and positive result of the phenolphthalein
test is not enough in the peculiar circumstances of the case
to establish guilt of the appellant. The charge must be
proved beyond reasonable doubt. In absence of proving the
recovery from the person or the drawer of the table or
acceptance of the currency notes by accused with relevant
material on record in furtherance to the proved demand,
the guilt cannot be proved. In the case at hand, the
currency notes were found on the table underneath dak
pad towards the visitors side. According to the
prosecution, the currency notes were laced with
phenolphthalein powder. As per the testimonies of PW3
Madhu Bala, PW4Virendra Prasad and PW5B.S.
Chauhan, it is clear that the recovery of currency notes was
made after calling PW3Madhu Bala again in the chamber
of the appellant by the trap party and on her indication
that the money was lying at that particular place. When
the hands of appellants were dipped in the solution of
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sodium carbonate, the colour did not change into pink. It
is merely alleged that the said currency notes were wrapped
in a notesheet on which the traces of the finger prints of
the appellant were found, which is treated as acceptance by
the appellant. In addition to the aforesaid, the note sheet
paper, in which the currency notes were wrapped, on being
dipped in the solution of sodium carbonate turned pink.
After evaluation of the evidence, it is to be observed, safe
seizure of the solution of sodium carbonate has not been
brought on record. Merely the note sheet, in which the
money was wrapped, on dipping in the Sodium Carbonate
solution turned pink, traces of which were found in CFSL
report, is not sufficient to prove the guilt of the appellant,
in particular, when the currency notes laced with
phenolphthalein powder were found towards the visitors
side on the table and not recovered from the person or
drawer of his table and the solution in which the hands of
appellant were dipped, did not turn pink. In the facts and
circumstances of the case, in our opinion, the evidence so
brought is not cogent and sufficient to prove the acceptance
of bribe by the accused/appellant.
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20. On the said issue, the judgments of this Court
in (2014)13 SCC
B. Jayaraj vs. State of Andhra Pradesh
55 C.M. Girish Babu vs. CBI (2009) 3 SCC 779 are
relevant, whereby this Court has clearly spelt out that the
recovery shall follow the proof of demand. The
presumption under Section 20 of PC Act can be drawn only
when the demand is proved and the money is voluntarily
accepted, knowing the fact that the said money has been
delivered by way of bribe. In absence of proof of demand
for illegal gratification and mere possession or recovery of
the currency notes is not sufficient to constitute such
offence. It is clarified that presumption under Section 20
PC Act can be drawn only after demand and acceptance of
illegal gratification is proved beyond reasonable doubt. In
our considered opinion, the findings as recorded by the
Trial Court and the High Court, drawing presumption
under Section 20 of the PC Act, are completely perverse in
law. There is no evidence to prove the demand and the
acceptance. The theory of preponderance of probabilities,
as applied in this case, is not sustainable and the finding of
the High Court is liable to be setaside.
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21. As per the discussion made hereinabove, it is
clear that the concurrent findings recorded by the Trial
Court, and affirmed by the High Court, are not based on
due appreciation of the material brought on record in the
right perspective. In fact, it is a case in which no cogent
evidence is available to prove the guilt of the accused for an
offence under Sections 7 & 13(2) read with Section 13(1)(d)
of PC Act. As per discussion made above, in the case at
hand, the concurrent findings in the judgments of the
Courts below cannot dissuade this Court from interfering in
a case like this where the findings of conviction have been
recorded merely on conjectures and erratic evaluation of
evidence. The Court is always having an obligation of
judicial conscience to correct the errors where the same are
manifest. In our considered opinion, the judgments of the
Courts below suffer from serious infirmities and manifest
error. There is no proof of demand at pretrap stage or
during trap. The Courts must not overlook the
fundamental principle of ignorance of accused till the
charge levelled against the appellant is established beyond
reasonable doubt. Therefore, in our view, the conviction of
21
the appellant has not been proved and the evaluation is
based on conjectures and erratic evaluation.
22. As such, we set aside the concurrent judgments
of the Trial Court as well as of the High Court and hold the
appellant to be not guilty of the charges against him.
Consequently, the appeal stands allowed. The appellant is
honourably acquitted.
..………..……...........J.
(VINEET SARAN)
…………..................J.
(J.K. MAHESHWARI)
New Delhi,
March 29, 2022.
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ITEM NO.18 COURT NO.9 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1769/2014
RAJESH GUPTA Appellant(s)
VERSUS
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION Respondent(s)
([TO BE TAKEN UP IMMEDIATELY AFTER FRESH MATTERS FOR FURTHER
ARGUMENTS.]
IA No. 41955/2021 - EARLY HEARING APPLICATION)
Date : 29-03-2022 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE VINEET SARAN
HON'BLE MR. JUSTICE J.K. MAHESHWARI
For Appellant(s) Mr. V. Giri, Senior Adv.
Mr. Mehul M. Gupta,Adv.
Ms. Ranjeeta Rohtgi, AOR
Ms. Samten Doma, Adv.
Mr. Shrirang Varma, Adv.
Ms. Pragya Bhagel, Adv.
For Respondent(s) Ms. Aishwarya Bhait, ASG
Ms. Arunima Dwivedi, Adv.
Mr. Mohd Akhi, Adv.
Mr. Sughosh Subramanyam, Adv.
Mr. Amit Sharma, Adv.
Mr. Raghav Sharma, Adv.
Ms. Poornima Singh, Adv.
Mr. Manvendra Bhati, Adv.
Mr. Arvind Kumar Sharma, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed reportable order.
The operative part of the signed reportable order reads as under:
“21.As per the discussion made hereinabove,
it is clear that the concurrent findings
recorded by the Trial Court, and affirmed
by the High Court, are not based on due
appreciation of the material brought on
record in the right perspective. In fact,
23
it is a case in which no cogent evidence is
available to prove the guilt of the accused
for an offence under Sections 7 & 13(2)
read with Section 13(1)(d) of PC Act. As
per discussion made above, in the case at
hand, the concurrent findings in the
judgments of the Courts below cannot
dissuade this Court from interfering in a
case like this where the findings of
conviction have been recorded merely on
conjectures and erratic evaluation of
evidence. The Court is always having an
obligation of judicial conscience to
correct the errors where the same are
manifest. In our considered opinion, the
judgments of the Courts below suffer from
serious infirmities and manifest error.
There is no proof of demand at pre-trap
stage or during trap. The Courts must not
over-look the fundamental principle of
ignorance of accused till the charge
levelled against the appellant is
established beyond reasonable doubt.
Therefore, in our view, the conviction of
the appellant has not been proved and the
evaluation is based on conjectures and
erratic evaluation.
22.As such, we set aside the concurrent
judgments of the Trial Court as well as of
the High Court and hold the appellant to be
not guilty of the charges against him.
Consequently, the appeal stands allowed.
The appellant is honourably acquitted.”
Pending application(s), if any, stands
disposed of accordingly.
(ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR)
(COURT MASTER (SH) (BRANCH OFFICER) AR-CUM-PS
(Signed reportable order is placed on the file)