Full Judgment Text
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PETITIONER:
MOHINDER SINGH & ANR.
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT05/03/1974
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION:
1974 AIR 873 1974 SCR (3) 519
1974 SCC (4) 285
ACT:
Indian Penal Code, Ss.409, read with s.109--Whether
conviction could be sustained on oral evidence in the face
of negative written evidence-Illiteracy How far benefit
could be given.
HEADNOTE:
The complainant who was Sarpanch of gram panchayat asked the
second appellant, his predecessor, to make over the records
of the gram-panchayat, transfer its accounts and hand over
the money belonging to the gram panchayat to him. The
second appellant put him off. When be made a complaint to
higher authorities the second appellant transferred some
amount to the complainant, but not the whole of it. The
complainant filed a suit in Civil Court for recovery of the
balance and rendition of accounts in respect of the unpaid
amount which was also large. The suit of the complainant
for rendition of accounts,was dismissed by the Civil Court,
accepting the evidence of the second appellant and his plea
that the accounts between the parties had been settled., The
complainant filed a complaint alleging that the first
appellant, an advocate and the second appellant had made him
sign an official receipt of the gram panchayat with its
official seal affixed on the receipt and took it without
making the payment of money to him. The second appellant
was tried for offences under sections 409, 461 read with 109
and 474 Indian Penal Code and the first appellant under
s.409 read with s.109, section 467 read with s.109 Indian
Penal Code and were convicted and sentenced to various terms
of imprisonment and fine. The High Court confirmed their
conviction and sentences. Before the trial court the
complainant led oral evidence to prove that the appellants
had taken advantage of his illiteracy and a trick was played
upon him by them.
Allowing the appeals to this Court,
HELD: There are clear infirmities in the prosecution case.
It is not possible to sustain the conviction of the accused.
Oral evidence which runs counter to an admission contained
in writing signed by a party in the very nature of things is
a very weak piece of evidence and cannot be accepted without
a grain of salt. In the face of the finding of the Civil
Court it would be incongruous to convict the second
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appellant on the basis that the amount of the Gram Panchayat
was still due from him. The complainant may be illiterate
but there must be a limit up to which the benefit of
illiteracy can be extended to him. The fact that the
complainant was illiterate could not induce the court to
ignore the infirmities in his evidence or to fill in lacunae
in the prosecution case.[524B-C,525B-D,526A-B]
This fact would also not justify the benefit of the doubt
being given to the prosecution instead of to the accused.
[526B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 221
of 1970 A-S 47 of 1971.
Appeals by special leave from the judgment and order dated
the 8th October, 1970 of the Punjab and Haryana High Court
at Chandigarh in Criminal Appeals Nos. 374 and ’76 of 1970.
Nuruddin Ahmad and U.P. Singh, for the appellants:
N. N. Goswamy and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
KHANNA, J.-Surat Singh and Mohinder Singh Advocate were
tried in the court of Additional Sessions Judge Karnal for
various
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offences. The learned Additional Sessions Judge convicted
Surat ,Singh under section 409 Indian Penal Code, section
467 read with section 109 Indian Penal Code and section 474
Indian Penal Code and sentenced him to undergo rigorous
imprisonment for a period of Iwo years and to pay a fine of
Rs. 25,000 or in default to undergo rigorous imprisonment
for a further period of eight months on the first count, to
undergo rigorous imprisonment for a period of one year on
the second count and rigorous imprisonment for a period of
one year on the third count. Mohinder Singh accused was
convicted under section 409 read with section 109 Indian
Penal Code and section 467 read with section 109 Indian
Penal Code and was sentenced to undergo rigorous
imprisonment for a period of two years and to pay a fine of
Rs. 25,000 or in default to undergo rigorous imprisonment
for a further period of eight months on the first count and
to undergo rigorous imprisonment or a period of one year on
the second count. The substantive sentences of imprisonment
in the case of each of the two accused were ordered to run
concurrently. It was also directed that out of the fine, if
realised, Rs. 46,875 should be paid to the Gram Panchayat
Neemwala. On appeal the Punjab and Haryana High Court
affirmed the decision of the trial court. By special leave
Mohinder Singh has filed criminal appeal No. 221 of 1970
while Surat Singh has filed criminal appeal No. 47 of 1971.
This judgment would dispose of both the appeals.
The prosecution case is that prior to the year 1961, four
villages, namely, Seonsar, Hailwa, Neemwala and Ramgarh Ror
had a common Gram Panchyat known as Gram Panchyat Seonsar.
Surat Singh accused was the Sarpanch of the Gram Panchyat.
Ram Kishan was then a member of the Gram Panchyat and he
represented village Ramgarh Ror. Each of the other three
villages was also represented by a Panch. In 1957-58 the
Government acquired large areas of shamlat land of villages
Ramgarh Ror, Seonsar and Hailwa for the purpose of
establishing a big forest plantation. The shamlat land of
these villages had already vested in the Panchyat under the
Punjab Village Common Lands (Regulation) Act. On the
acquisition of those lands, the Government paid compensation
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amounting to Rs. 3,51,844. Out of that amount, Rs. 1,68,844
represented the compensation for the acquisition of shamlat
land in village Ramgarh Ror. Surat Singh in his capacity as
Sarpanch of the Gram Panchyat received those amounts and the
compensation for each of the villages Was kept distinct and
separate, so that the benefit of the money should accrue
only to the respective villages. The compensation amount of
Rs. 1,68,800 relating to Ramgarh Ror was invested as follows
(i) Rs. 1,00,000 deposited in the Kaithal Mandi Post Office
(ii) Rs. 50,000 deposited in the Reserve Bank of India New
Delhi
(iii)Rs. 18,800 deposited in the Central Co-operative Bank
Kaithal
The Gram Panchyat of Seonsar continued to function up to the
beginning of 1961. Some amounts out of the compensation
deposited were withdrawn for being spent for those villages.
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In the beginning of 1961 the Government split the area of
Gram Panchyat Seonsar into two separate areas and
constituted two Gram Panchyats. In this new arrangement the
’Gram’ Panchyat Seonsar functioned only for two villages,
namely, Seonsar and Hailwa. For villages Neemwala and
Ramgarh Ror a new Gram, Panchyat known as- Gram Panchyat
Neemwala. was constituted. After the formation of the new
Panchyat Ram Kishan PW was elected Sarpanch of Gram Panchyat
Neemwala, while Surat Singh continued, as Sarpanch of Gram
Panchyat Seonsar. After the.elections Ram Kishan as
Sarpanch of Gram Panchyat Neemwala made a demand and for the
custody of the Panchyat,record relating to the two; villages
Neemwala Land Ramgarh Ror and also ’asked for the payment of
the amount standing in the account of village Ramgarh Ror.
Surat Singh accused, however, put off Ram Kishan PW. Ram
Kishan thereupon made an application to the higher
authorities. Surat Singh accused thereafter transferred the
deposit of Rs. 1,00,000 in the name of Ram Kishan as
Sarpaanch of the new Panchyat. No steps were, however,
taken by Surat Singh accused to transfer the remaining
amount. As Surat Singh did not
not render accounts, Ram Kishan PW consulted Mohinder Singh
Advocate accused and on the latter’s advice filed a suit for
rendition of the accounts against Surat Singh in the Court
of Sub Judge at Kaithal. Mohinder Singh accused was also
engaged by Ram Kishan PW a,,; his counsel in that case. Ram
Kishan then learnt that Mohinder- Singh accused had good
relations with Surat Singh and he, therefore, requested
Mohinder Singh for his help, for the return of the balance
of the amount- lying with Surat Singh. On the advice given
by Mohinder Singh, Ram Kishan got passed resolution DB/1 by
Gram, Panchyat Neemwala on May 14, 1963 whereby Rao Kishan
was authorised on behalf of the Panchyat to receive the
amount due from Gram Panchyat. Seonsar. Ram Kishan also
handed over memorandum PWI/A which had been issued by the
Reserve Bank of India for the deposit of Rs. 50,000 to
Mohinder Singh accused. Ram Kishan thereafter made enquiries
from Mohinder Singh about the amount of Rs. 50,000 but on
each occasion Ram Kishan was put off by Mohinder Singh by,
saying that the amount had not been transferred and th as as
it was done, he would get in touch with Ram Kishan. As the
payment of the amount was being delayed and some funds were
needed’ for the school building, Ram Kishan talked to
Mohinder Singh in the first week of December 1963 about the
payment of Rs. 6,000 which ’was due as interest. Mohinder
Singh then told Ram Kishan to come to his office on December
13, 1963 with the receipt book of the Panchayat and its
official seal. Mohinder Singh, also mentioned that he would
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send for Surat Singh accused on that: day and would secure
the payment of the interest amount of Rs. 6 000 as well as
of the principal amount if the same too was received.
On December 13,1963 at about 10 a.m. , it is stated , Ram
Kishan PW accompanied by Mussadi went to the Office of
Mohinder Singh accused with the official receipt book and
seal of Neemwala Panchayat. Both the accused were, present
in the office. Mohinder Singh accused then called a- boy
aged about 14 or 15 years and got something written
5-M 45 Sup CI/75
522
on the official receipt book which had been brought by Ram
Kishan. Rant Kishan knows only Landa character and is
otherwise illiterate. Mussadi too is illiterate. Both Ram
Kishan and Mussadi kept sitting at some distance smoking
Hookah. Ram Kishan was then called by Mohinder Singh
accused and his signatures were obtained on receipt DA as
well as counterfoil Pi of that receipt. The official seat
of the Gram Panchayat was also taken from Ram Kishan and was
affixed both on the receipt and the counterfoil thereof
under the signatures of Ram Kishan. Receipt DA was torn off
from the receipt book by Mohinder Singh accused and was
handed over to Surat Singh accused. When Ram Kishan
protested that the receipt had been taken from him without
his being handed over any money, he was assured by Mohinder
Singh accused that he would be taken to the bank and paid
the money there. Ram Kishan, Mussadi and the two accused
then went to Cooperative Bank Kaithal. The clerk on duty in
the bank told Mohinder Singh that the sum of Rs. 6,000 on
account of interest could not be paid in cash without
sanction but he would transfer the amount in the name of
Gram Panchyat Neemwala from the account of Gram Panchyat
Seonsar by a book entry. The amount of Rs. 6,000 in this
way transferred to the account of Gram Panchyat Neemwala.
Surat Singh accused then went away, while Ram Kishan,
Mussadi and Mohinder Singh went to the office of Mohinder
Singh. At the office Ram Kishan demanded back the receipt
from Mohinder Singh as the amount had not been paid in cash.
Ram Kishan was, however, told by Mohinder Singh that the
receipt was with Surat Singh. Mussadi PW was then sent to
call Surat Singh but the latter declined to come. Mohinder
Singh told Ram Kishan that he need not worry. Mohinder
Singh also wrote the word "Cancelled" on the counterfoil PI.
Mohinder Singh further promised to get the original receipt
back from Surat Singh. Ram Kishan and Mussadi then came
back to the village. Some days later a fresh election was
held and Mehar Chand became the Sarpanch of Neemwala
Panchyat.
According further to the prosecution case, about a month
after the fresh elections Ram Kishan learnt from an overseer
of Block Samiti Chika that Surat Singh had withdrawn the
amount of Rs. 50,000 from the bank and was giving out that
he had paid that money to Ram Kishan and got a receipt from
Ram Kishan for that amount. Ram Kishan at first did not
attach much importance to that talk but when the rumour
persisted, Ram Kishan learnt on enquiry that the amount had
already been withdrawn by Surat Singh accused some months
earlier. Ram Kishan then made a complaint to the District
Magistrate Karnal on June 12, 1964 praying that a case might
be registered against the accused under sections 120B, 409,
467, 468 and 471 Indian Penal Code. A case was thereafter
registered against the accused.
During the investigation of the case it transpired that an
amount of Rs. 46,875 which was lying in deposit with the
Reserve Bank of India in the account of Gram Panchyat
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Seonsar was sent on July 12, 1963 by bank draft to Surat
Singh. The aforesaid amount was credited in the account of
Surat Singh with the Co-operative Bank Kaithal
523
on July 18, 1963. The same day, i. e. July 189 1963 Surat
Singh withdrew the amount of Rs. 46,875 from the bank by
means of a cheque. It further transpired during the
investigation that receipt DA which was got signed from Ram
Kishan was for an amount of Rs. 46,875 and that the said
receipt before the date July 18, 1963. Writing marked A
was also made on copy DR of resolution DB/1. The writing
was as under:
"Rs. 46,875 received.
Receipt accordingly issued.
Thumb Impression, Ram Kishan
Sarpanch, Neemwala
18-7-63."
The charge which was framed against Surat Singh was that he
had committed criminal breach of trust in respect of Rs.
46,875 while that framed against Mohinder Singh was that he
had abetted the commission of the above offence. There were
also charges against the two accused about their having
forged the writing& purporting to be receipts issued by Ram
Kishan in respect of the amounts of Rs. 46,875. Surat Singh
was further charged for keeping in his possession the forged
receipts for fraudulent and dishonest use of the same.
At the trial Surat Singh accused, admitted that a sum of Rs.
of village 844 had been received as compensation for
acquistion of the land age Ramgarh Ror. Surat Singh further
admitted that out of that amount, Rs. 50,000 had been
deposited n the Reserve Bank of India. it was not disputed
by Surat Singh that the Gram Panchyat Seonsar had been split
into two Panchyats. According to Surat singh, he withdrew
on July 18, 1963 Rs. 46,875 found due on the basis of
deposit certificate of the value of Rs. 50,000 and he paid
the same amount to-Ram Kishan PW as per receipt Ex. A. on
DU as well as the official receipt DA. Surat Singh denied
having gone to the office of Mohinder Sin on December 13,
1963.The allegation that the receipts were
fabricated or that any amount had been misappropriated by
Surat Singh were denied by him.
Mohinder Singh accused admitted having filed a suit as
counsel of Gram Panchyat Neemwala against Surat Singh.
Mohinder Singh denied the other allegations against him
Mohinder Singh expressed ignorance about the withdrawal of
money from the being by Surat Singh on July 18, 1963:
Likewise the allegation that Rath Kishan and Mussadi had
visited his office on 1 December 13, 1963 was denied by
Mohinder Singh. Mohinder Singh also denied that the word
"Cancelled" on counterfoil PI of receipt DA was in his hand.
The trial Court, as mentioned earlier, accepted the
prosecution allegations and convicted and sentenced :he two-
accused as above. On appeal the High Court affirmed the
judgment of the trial court.
524
In a peal before us Mr. Nuruddin, learned council for the
appellants has taken us through the evidence on record and
has contended that the amount of Rs. 46,875 after being
withdrawn from the bank On July 18, 1963 was paid by Surat
Singh to Ram Kishan. It is further contended that Ram
Kishan instead of accounting for ’that amount has falsely
involved the two accused in this case. As against that,-
Mr. Goswami on behalf of the state has supported the
judgments of the High Court and the trial court and has
urged that no case has been made for interference with the
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view taken by those courts.
We have given the matter our consideration and find that
there are glaring infirmities in the prosecution case and as
such, it is not possible to sustain the conviction of the
accused. It is in the evidence of Kitab Singh (PW 4) who
was posted as an official in the Kaithal Co-operative Bank
that on July 18, 1963 Surat Singh withdrew the amount of Rs.
46,875 from that bank after that amount had been transferred
from the Reserve Bank of India New Delhi. The accused have
brought on the record receipt DA., It is a printed receipt
in Hindi in the prescribed form. The necessary particulars
have been filled in this receipt. The receipt is dated July
18, 1963 and according to it, Rs. 46,875 were received by
Ram Kishan PW from Surat Singh Sarpanch Seonsar. This
receipt admittedly bears the signatures of Ram Kishan in
Landa character and also bears the seal of Gram Panchayat
Neemwala. In addition to receipt DA, the accused have
produced another receipt about the payment of Rs. 46,875 by
Surat Singh to Ram Kishan. This receipt is on copy DB of
resolution DB/1 which had been passed by Gram Panchayat
Neemwala on May 14,1963. Ram Kishan PW was authorised by
this resolution to re the amount of Rs. 50,000 which. had
been deposited in the Reserve Bank of India and to issue a
receipt after receiving that amount, Copy Ex. DB is
admittedly in the hand of Mukand Lal (PW 13), who was the
Secretary of Panchayat Neemwala and is signed by him. The
receipt is in the form of writing A wherein it is recited
that Rs. 46,875 had been received by Ram Kishan and he had
also issued a receipt in token of his having received that
amount. The writing is dated July 18, 1963. The accused
examined Gian Parkash Sharma (DW 3) Finger Print Expert,
whose evidence shows that the thumb impression on writing
marked A tallied with the admitted thumb impression of Ram
Kishan PW. Ram Kishan PW also did not deny that the thumb
impression underneath writing marked A was his own.
According to him, the thumb impression might be his own.
There is an addition evidence on the record that the writing
marked A was in the hand of Chaudhry Daryao Singh, who was
the Manager of Co-operative Bank in July, 1963. Chaudhry
Daryao Singh is now dead, but the fact that the writing
marked A on Ex. DB is in the hand of. Chaudhry Daryao
Singh is proved by the testimony of Kitab Singh’(PW 4), who,
was incharge of the Co-operative Bank, as well as by that of
Nihal Singh (DW 1), who is a first cousin of Daryao Singh
deceased and is familiar with his handwriting. The receipt
DA as well as the writing marked A on which were signed and
thumb marked by Ram Kishan PW show that Surat Singh
immediately after withdrawing the amount of
525
Rs. 46, 875 from the Co-operative Bank on July 18, 1963
paid that amount to Ram Kishan PW. The case of the
prosecution is that though Ram Kishan issued those receipts,
he did not receive the amount of Rs. 46,875. It is alleged
that advantage was taken of the illiteracy of Ram Kishan and
a. trick was played upon him by giving him the assurance
that those writings related to the amount of Rs. 6,000. It
is further alleged that though the two receipts bore the
date July 18, 1963, they were in fact prepared on December
13, 1963. The prosecution in support of the above
allegation has examined Ram Kishan (PW 1) and Mussadi (PW
2). We find ourselves unable to accept the statements of
Ram Kishan and Mussadi in this respect. Oral evidence which
runs counter to an admission contained in writing signed by
a party in the very nature of things is a very weak piece of
evidence and cannot be accepted without a grain of salt. It
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seems difficult to believe that Ram Kishan signed the
official receipt as well as the other receipt on copy DB of
the resolution without receiving the amount in question.
Even if Ram kishan knew only Landa character, he could not
be unaware of the fact that receipt Ex. DA was not for an
amount of Rs. 6,000, in which sum there are only four
numerals, but for a much bigger amount consisting of five
numerals.
There is another circumstance which militates against the
case of the prosecution that it was sometime in 1964 that
Ram Kishan came to Know that a trick had been played upon
him and that he had been made to issue on December 13,
1963 a receipt dated July 18, 1963 for an amount of Rs.
46,875 without receiving that amount. The official
receipt book from which receipt DA had been issued remained
with Ram Kishan when he returned to his village after
receipt DA had been handed over to Surat Singh. The
said receipt book contained counterfoil PI of receipt DA
which had been handed over to Surat Singh. The trial court
has found that the said counterfoil bore the date July 18,
1963 and was for an amount of Rs. 46,875. Ram Kishan must
have shown that counterfoil to the Secretary of the Gram
Panchayat or some other literate person after his return
to the village and, as such, could not have remained
unaware of the fact that the receipt which he had issued
was dated July 18, 1963 and was for an amount of Rs. 46,875.
There was all the more reason for Ram Kishan to show the
counterfoil to someone because, according to him, he had
insisted upon obtaining a writing regarding the
cancellation of the receipt, counterfoil of which was PI. It
is difficult to believe that Ram Kishan after coming
to know on December 13, 1963 that a receipt of Rs.
46,875.dated July 18, 1963 had been obtained from him would
have kept quiet for a number of months thereafter. The
counterfoil PI when produced in court by Ram Kishan shows
that the date July 18, 1963 had been scored off and
contained the. date December 19, 1963. Likewise, the amount
of Rs. 46,875 had been scored off and in its place, the
amount of Rs. 6,000 had been mentioned in the counterfoil.
The scoring off of the date and the amount mentioned on the
counterfoil Ex. PI and their substitution by the new date
and amount must plainly have been done by someone at the
instance of Ram Kishan. If the conscience of Ram Kishan was
clear, it is not explained as to why he
526
got the date and amount scored off and got inserted another
date and amount. Ram Kishan may be illiterate but there
must be a limit up to which the benefit of illiteracy can be
extended to him. The fact that Ram Kishan is illiterate
cannot induce the court to ignore the infirmities in his
evidence or to fill in lacunae in the prosecution case.
In any case, this fact would not justify the benefit of the
doubt being given to the prosecution, instead of to the
accused.
An attempt was made by the prosecution to show that the
receipt book from which receipt DA was issued had been
purchased on October 24,1963 from Harish Chander (PW 10), as
per cash memo PWI/D. This cash memo, however, relates to
the sale of receipt book No. 9. There can be hundreds of
such receipt books and it is admitted by Harish Chander that
he cannot say whether the cash memo relates to the receipt
book from which receipt DA had been issued or to some other
receipt book. It, therefore, cannot be said to have been
proved that receipt book from which receipt DA was issued
had been purchased on October, 1963.
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There are also some other circumstances which create a doubt
about the correctness of the prosecution allegations. It is
admitted by Ram Kishan PW that long before he made a
complaint to the District Magistrate, he came to know that
Surat Singh was representing that he had paid the amount of
compensation which was lying in deposit with the, Reserve
Bank of India to Ram Kishan and that Surat Singh was in
possession of receipt for the payment of that amount. Surat
Singh also mentioned in a suit brought by him in August 1964
against Ram, Kishan that he had paid the amount of Rs.
46,875 to Ram Kishan as per receipt dated July 18, 1963. It
would, therefore, follow that Surat Singh has always been
taking the stand that he had paid the amount of Rs. 46,875
to Ram Kishan on July 18, 1963 as per receipt issued by the
latter and that the plea taken by him at the trial was not
the result of an afterthought.
Another fact which may also be mentioned in the above
context that a suit was brought in September 1962 by Ram
Kishan PW on behalf of Gram Panchayat Neemwala against Gram
Panchayat Seonisar though Surat Singh accused for rendition
of account. in,respect of the assets of Gram Panchayat
Neemwala. In that suit the plea of Surat Singh was that the
account between the parties had been settled. Evidence was
also led by Surat Singh to that effect. The court accepted
this evidence and held as per judgment dated October 19,
1963 that the accounts between the parties had been,settled.
The, plaintiff’s suit was accordingly dismissed, In the face
of that finding of the civil Court, it would appear to be
incongruous to convict Surat Singh on the basis that the
amount of Gram Panchayat Neemwala was still due from him.
5Z7
We thus find that the prosecution case suffers from glaring
infirmities. In fact, there are some circumstances which
lend credence to the plea of the accused. It is, in our
opinion, not possible to sustain the conviction of the
accused on the material brought on record. We accordingly
accept the appeals, set aside the conviction of the accused
and acquit them.
Before parting with this case, we would like to refer to one
aspect. A huge amount belonging to the Gram Panchayat
Neemwala is alleged to have been misappropriated by someone.
The case of the prosecution is that misappropriation of the
amount was facilitated by the illiteracy of the Sarpanch of
the Gram Panchayat. It may, therefore be necessary that
some salutary directions are issued or rules, made so that
because of the illiteracy of a Sarpanch the funds of the
Panchayat are not embezzled or used for any purpose other
than that of the Panchayat.
P.B.R.
Appeals allowed
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