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Dharmendra Nath Shastri Vs. Rex Through Sheoraj Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1949All353; 1949CriLJ550
AppellantDharmendra Nath Shastri
RespondentRex Through Sheoraj Singh
Excerpt:
- - while this may be true, it is also true that the case set up by the complainant would be clearly covered by clause (l) of section 464, which, along with the opening words of the section, reads as follows: a person is said to gain wrongfully when such person retains wrongfully of well as when such person ooquii'03 wrongfully. a person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property. it may be that the accused, with the best of intentions and in order only to present his case in a more complete form before the court, had quite honestly added a new plot to those already bhown by him in his plaint. further, it is well settled that it is not incumbent upon the crown to prove that any.....mushtaq ahmad, j.1. the application in criminal revision no. 97 of 1948 was filed by sheoraj singh against an order of the learned sessions judge, mearut, dismissing his appeal against an order of a first class magistrate of meerut by which the latter had convicted him under b. 465, penal code, ana sentenced him to rs. 100 fine.2. the prosecution of the applicant was started on the complaint of one dharmendra nath shastri, a teacher in sanskrit at the meerut college, the accused sheoraj singh being then an inspector in the traffic police there.3. on slat may 1944, the applicant was allotted by the house controller a half portion, including the ground and first floors, of a house, no. 301, boundary road, meerut, belonging to the complainant dharmendra nath shastri at a monthly rent of rs......
Judgment:

Mushtaq Ahmad, J.

1. The application in criminal Revision no. 97 of 1948 was filed by Sheoraj Singh against an order of the learned Sessions Judge, Mearut, dismissing his appeal against an order of a First Class Magistrate of Meerut by which the latter had convicted him under B. 465, Penal Code, ana sentenced him to Rs. 100 fine.

2. The prosecution of the applicant was started on the complaint of one Dharmendra Nath Shastri, a teacher in Sanskrit at the Meerut College, the accused Sheoraj Singh being then an Inspector in the Traffic Police there.

3. On Slat May 1944, the applicant was allotted by the House Controller a half portion, Including the ground and first floors, of a house, No. 301, Boundary Road, Meerut, belonging to the complainant Dharmendra Nath Shastri at a monthly rent of Rs. 100.

4. The House Control Order prevailing at Meerut admittedly prohibited tenants from sub-letting any portion of their tenancy except with the permission of the House Controller.

5. On 6th September 1945, the complainant applied to the House Controller for permission to eject the accused on the ground that he had caused various kinds of damage to the house and had also sublet a portion of it and that the complainant himself required the house for the use of his family. Pending this application, on 6th December 1945, the complainant made another application to the House Controller complaining that the accused had sublet a portion of the houBe to one Som Gupta and another portion to one Thakur Komal Singh, a head clerk in the Central Excise, and thereby contravened E. 18, Meerut House Control Order, 1945, and rendered him Belf liable to punishment under Rule 22 thereof.

6. On 11th January 1946, notice was issued to the accused to show cause against the above applications on 3lst January 1946. On this date the accused filed a written statement before the House Controller, Meerut.

7. The main controversy in the case with which we are concerned in this revision is whether the said written statement was a writing of which Ex. l (p. 10 of the paper book) is a copy, as alleged by the complainant, or whether it was Ex. A (page 12 of the paper book), as alleged by the accused. Th6 Courts below, finding that the accused had originally filed a document of which Ex. l was a copy, held that he had subsequently replaced that document by substituting Ex. A and thereby committed an offence under Section 468, Penal Code.

8. As already mentioned the application in revision No. 97 of 1948 is directed against the order of the learned Sessions Judge affirming the applicant's conviction by the Magistrate, am the application in the connected Revision no. 1383 of 1947 is by the complainant Dharmendra Nath Shastri asking for an enhancement of the sentence of Rs, 100 imposed by the Courts below and also for expunction of a certain passage towards the end of the judgment of the trying Magistrate.

9. In view of the last mentioned application asking for an enhancement of the sentence passed on the accused, we have permitted his counsel to address us also on the merits of the case under Section 439 (6), Criminal P. C.

10. The learned Counsel foe the accused has challenged the conviction as not justified by the evidence on the record and also as vitiated by certain errors of law. We propose to deal with the question of fact on the basis of the evidence and then to deal with the points of law raised on behalf of the accused.

11. Apart from the oral evidence relied upon by the prosecution there are certain documents on the record on a consideration of which along with the oral evidence, the Courts below found that the offence with which the accused was charged had been fully established. Two of these documents were the complainant's applications, one of 6th September and the other of 6th December 1945, already mentioned above.

12. As also mentioned by us, the prosecution case was that the accused had really filed a writing on 31st January 1946, as his written statement, of which the document Ex. l was a copy, whereas the accused claimed that he had never filed any such writing and that his written statement had from the very beginning been what was known as Ex. A. On behalf of the complainant it was suggested that the writing Ex. A had been substituted by the accused after Komal Singh had handed over a slip on 13fch February 1946, to the inspecting officer, deputed to inspect the site on the complainant's application dated 12fch February 1946, in which slip Eomal Singh had declared that he had been paying rent to Sheoraj Singh accused and that it was to contradict this assertion of Komal Singh that the accused had put in the writing Ex, A by removing his original written statement of which Ex. 1 was a copy.

13. A useful test would be furnished by comparing the allegations in the complainant's applications dated the 6th September and the 6th December 1945 referred to above with the writing Ex. 1 and also with the writing Ex. A, as by bat process we shall be in a position to judge as to which of these two writings, Ex. l relied upon by the complainant or Ex. A relied upon by the accused, can be taken to be a relevant or effective answer to those two applications of the com. plflinant. Another test is furnished by an affidavit (Ex. P 4) filed by the complainant on lath February 1946, a comparison of which with the aforesaid writings, Exs. 1 and A, would also enable us to arrive at a definite conclusion on the question as to which of these writings, Ex. 1 or Ex. A, had really been filed by the accused as his reply, [After discussing the evidence in the light of the above test his Lordship proceeded.]

14. On a consideration of the documents and oral evidence referred to above, we have come to the conclusion that the accused had never filed the writing Ex A on 31st January 1946 as his written statement in the proceedings before the House Controller but that the writing actually put in by him then was one of which Ex. 1 is a copy, and in this view we are entirely in agreement with the Courts below.

15. learned Counsel for the accused has raised a number of law points as vitiating the prosecution and we proceed to deal with these now.

16. The first point argued was that no charge of forgery could be made out under Section 468, Penal Code, as the writing Ex. A which is the subject of the chargo was not a 'document', as defined in S, 29, Penal Code. That definition runs as follows:

The word 'document' denotes any matter expressed or described upon any substance by means of lottery, figures or marks or by more than one of those means intended to be used or which may be used as evidence o{ that matter.

Mr. Pathak, appearing for the accused, contendedtbat as the writing, Ex. A could not by itself be evidence of the truth of its contents, it could not be a 'document within the meaning of Section 29', Penal Code. The word evidence' occurring in this section precedes the words 'of that matter' and the word 'matter' as occurring in the opening portion of the section is qualified by the words 'expressed or described upon any aubatanco by means of letters,' etc. This means that the mat-her contemplated by this section is what is expressed or described upon any substance, and the question is whether such a matter can be evidence of its existence. It is obvious that the matter expressed or described upon any substance would certainly be the evidence of the fact that that matter exists, though it may not by itself be a proof of the truth of the contents of that matter. The contention raised by the learned Counsel for the accused is evidently based on a confusion of thought, inasmuch as it assumes that the word 'evidence' in s, 29, Penal Code, implies evidence of the truth of the matter expressed and not merely of its existence. The word 'evidence' or the word 'evident' only means 'that which can be seen with the naked eye'. It is not necessarily synonymous with the word 'proof'. When the question is whether a oertain writing was filed in certain proceedings, the production of the writing was obviously the evidence of the fact of that writing having been produced, though it may not be any evidence of the truth of the contents of that writing. In Madapusi Srinivasa Ayyangar v. Queen, & Mad. 393 at p. 895, it was remarked that:

The term 'evidence' in its ordinary cense signifies-that which makes apparent the truth of a matter in question. It is no doubt more frequently applied to proof by a judicial tribunal, but it is not necessarily confined to this sense,

16a] The actual meaning of the word 'evidence' would depend on the question as to what is the matter of which evidence is in question. Is it the existence of a writing, if the question has arisen in connection with that, or is it the truth of the subject of the writing? In the present case the question obviously comes within the former and not within the latter; that question being what was in fact the writing which the accused had filed before the House Controller on 3lsfc January 1946. There is no question as to whether the contents of that writing were true or false. And on the question as to what that writing was, the production of the writing would onrtainly be evidence within the meaning of 8, 29, Penal Code. Ws, therefore, hold that the contention that the writing ex. a, which is the subject of the charge, is not a 'document' within this section or within section 463 is incorrect.

16b] The next point argued was that the charge levelled by the prosecution being one only of a substitution of a fresh writing in place of the writing originally existing it did not come within the offence charged, such a case not being one of an alteration of a document within Clause (2) of B. 464. Penal Code. While this may be true, it is also true that the case set up by the complainant would be clearly covered by Clause (l) of Section 464, which, along with the opening words of the section, reads as follows:

A person is said to make a false document who dishonestly or fraudulently makes...a document. . . with the intention of causing it to be believed that such decament...wag made...at a time at which ho knows that it was not made....

If therefore, the writing, Ex, A was not in exiatenca on Slat January 1946, on which date the accused filed his written statement, but had come into existence later and was shoved into the file of the House Controller, as if it had been there since 81st January 1946 and was really the written statement originally filed by him it would be obviously covered by the said clause of Section 404. We, therefore, reject this contention also.

17. It was next most vehemently argued by the learned Counsel for the accused that the conduct attributed to him could not be regarded as covered by the word 'dishonestly' or the word 'fraudulently' in Clause (l) of Section 464, Penal Code. Section 24 of the code defines the term 'dishonestly' as follows:

Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly.

18. The words 'wrongful gain' are defined in Section 28 of the Code as 'gain by unlawful means of property to which the person gaining is not legally entitled,' and the words 'wrongful loss' are defined in the same section as 'loss by unlawful means of property to which the person losing it is legally entitled,'

19. Again, the expressions 'gaining wrong-fully' and 'losing wrongfully' are defined in this section as follows:

A person is said to gain wrongfully when such person retains wrongfully of well as when such person ooquii'03 wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property.

20. It would be seen at once that actual acquisition of property in the one case or actual loss of it in the other is not an essential element but that mere wrongful retention of property is enough to come within the words 'gaining wrongfully' and merely being wrongfully kept out of property is covered by the expression 'losing wrongfully'. We shall have to see how far these elements are present in the case we are deciding so as to bring it within the mischief of a. 464 of the Code.

21. The word 'fraudulently,' however, is defined in Section 25 of the Code as follows:

A person is said to do a thing fraudulently if he does that thing with intent to defraud, but not otherwise.

22. We shall have to consider the meaning of the word 'fraud' in the above definition with reference to the facts of this case in order to see whether it comes within the scope of that word.'

23. A number of eases were relied upon on behalf of the accused, and in particular those of Emperor v. Bisheshwar Dayal, IO05 a. w, N. 93 : (2 cr. L.J. 234), of Manika Asari and another v. Emperor, A, I. B. (2) 1915 Mad. 826 : (16 or. l. j. 246) and of Surendra Nath Ghosh v. Emperor, 38 cal. 75 : (71. c. 629).

24. In the case first cited a mukhtar, who was appearing for the plaintiff in an ejectment suit before a revenue Court, in open Court, but without the permission of the Court or even of the officer of the Court in whose custody the record was, took the plaint in the case and altered it so as to represent the plaintiff as claiming ejectment of the defendant from one field more in addition to those mentioned originally in the plaint. It did not appear whether the plaintiff was or was not entitled to eject the defendant from that field, but inasmuch as the alteration was made openly and the prosecution had not established that it was made fraudulently or dishonestly, it was hold that on these facts the mukhtar could not properly be convicted of an offence under Section 464 of the Code. It is obvious that the element of secrecy betraying a desire for wrongful gain or wrongful loss without anybody's knowledge was completely absent in this case. It may be that the accused, with the best of intentions and in order only to present his case in a more complete form before the Court, had quite honestly added a new plot to those already Bhown by him in his plaint.

25. As regards the second case in Manika Asari v. Emperor, A. I. R; (2) 1915 Mad. 826 : (16 Cr. L. J. 246), referred to above, it was held-there that:

An intention to defraud maan3 something more than mere deceit. The object for which the deceit is practised must be considered. The advantage intended to be secured must be something to which the party perpetrating the deceit is not entitled either legally or equitably.

It was thus the title of the accused to the property in connection with which the act was committed, and not the mode in which he had committed the act, that was taken to be the criterion.

26. This was a single Judge case and came to be considered in a later Bench decision of the same Court in Sivananda Mudali v. Emperor : AIR1926Mad1072 and was expressly dissented from in that case. The learned Judges there held as follows:

In order to constitute forgery the document need not be intended to support a false claim or a false title. If, in order to support a true claim or a genuine title, a false document is created, it is a forgery. Whether a document is a false document or cot does not depend upon the adjudication of the Court on the olaim or title which is intended to be propped up by the false document.

27. The learned Judges in this ease further pointed out that the reasoning in the earlier case overlooked the difference between 'dishonest. ly' and 'fraudulently' and that in order to do a thing dishonestly there must be intention to cau3e wrongful loss or wrongful gain of property, but in order to do a thing fraudulently it is not necessary that there should be the intention to cause wrongful loss or wrongful gain of property.

28. In the last ease, Surendra Nath Ghosh v, Emperor, 38 cal. 75 : (7 I.C. 629), cited on behalf of the accused it was held that:

The expression 'intended to defraud' implies conduct coupled with an intention to deceive and thereby to injure. The word 'defraud' involves two conceptions, namely deceit and injury to the parson deceived, that is an infringement of some legal right possessed by him but not necessarily deprivation of property.

This was a case in which, there being a difference o opinion between two learned Judges who had heard it first, the matter was referred for opinion to a third Judge who laid down the law in the words just quoted.

29. Now this case also came to be reviewed in a later decision of the same Court in Emperor v. Mohit Kumar Mukerji A.I.R. (13) 1926 cal. 89 : (27 cr. L. j. 177), in which the above dictum was not accepted by Page J., who re-marked that:

With great respect I am unable to accept the view that the term 'fraudulently' in S, 471, Penal Code, necessarily connects deceit and injury to the person deceived. It may, but it need not, do so. In point of fact more often than not it happens that the intention of the accused is to deceive one person in order to injure or defraud another. Further, it is well settled that it is not incumbent upon the Crown to prove that any particular person was defrauded, or, indeed, that in the circumstances of the case it was possible that any person could have been defrauded.

The learned Judge accepted the enunciation of the law by Banerji J., in Queen Empress v. Mohammad Said Elian, 21 all. 113:(1998 A. W. N. 197), that an offence was committed under Section 471, whenever a document known or believed by the accused to have been forged was used as genuine with the intention that some person thereby should be deceived and by means of that deception either an advantage had accrued to the person so using the document or injury had befallen some other person or persons. Quoting from Stephen's History of the Criminal Law of England (vol. II, page 121) it was emphasised that:

The practical test as to the fraudulent character of deception for criminal purposes is this. Did the author of the deceit derive any advantage from it which ha could not have had if the truth had been known? If so, it is hardly possible that the advantage should Dot have had the equivalent of any loss or risk of loss of someone else. If so, there was fraud.

30. The net result so far as the cases cited by the learned Counsel for the accused, therefore, is that while the first of them does not in any way improve his position the last two were expressly disapproved in the later decisions of the same Courts.

31. A number of decisions were also cited on behalf of the complainant and we now proceed to notice them seriatim, In Queen-Empress v, Soshi Bhushan, w all. 210 : (1893 A. w. N. 96), it was held that where a document had been fabricated with the intention that the accused should by the use of it deceive a college authority and obtain admission to a second year law class to which he would not have been otherwise entitled to be admitted, he was guilty of an offence of forgery. The essence of the offence was pointed out to be the intention of the accused to deceive another person and thereby to obtain an advantage or a privilege which, without such deception, could not have been obtain, ed, this advantage being in respect of anything which the accused regarded to be a valuable right, even though the same might not refer to a property.

32. The next case relied upon by the complainant's counsel was that of Queen-Empress v. Mohammad Said Elian, 21 ALL. 113 : (1898 A. W. N. 197), to which reference has already been made by us as containing an enunciation of the law which was accepted by Page J. in Emperor v. Mohit Kumar Mukerji A.I.R. (13) 1926 cal. 89 at p. 92 : (27 Or. L. J. 177). Banerji J. quoted the opinion of Sir James Pitzjames Stephen in his History of the Criminal Law of England (vol. u, page 121) as follows:

Whenever the words 'fraud' or 'intent to defraud' of 'fraudulently' occur; in the definition of a crime, two elements at least are essential to the commission of the crime, namely, first, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an Intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy...This intent is very seldom the only 01 the pticoipal intention entertained by the fraudulent person whose principal object in nearly every case is his own advantage....A practically conclusive test as to the fraudulent character of a deception for criminal purposes is this. Did the author of the deceit derive any advantage from it which should not have been had if the truth had been known? If so, it is hardly possible that the advantage should not have had an equivalent in loss of risk of load to someone else and if so, there was fraud.

Stressing the last sentence in the above passage the learned Judge laid down that:

Where, therefore, there is an intention to deceive and by meana of the deceit to obtain an advantage, there is fraud, and if a document is fabricated with such intent, it is a forgery,

33. The principle enunciated in the above passage was also the basis of the decision in Emperor v. Ali Hasan, 28 ALL. 358 : (8 Or. L. j. 249), where the test adopted was the advantage which the forgerer aimed at securing by means of the deceit employed by him in obtaining that object.

34. Eeliance was also placed by the learned Counsel for the complainant on a Bench decision of the Patna High Court in Mahesh Chandra Prasad and another v. Emperor A.I.R. (30) 1943 pat. 393 : (45 or. L.J. 292) in which the judgment of the Court was delivered by Shearer J, That, if We may Bay so with respect, is a very instructive and enlightening judgment on the points we are here considering, and it was held that where the accused, in order that he might successfully practise the fraud, persuades or bribes some clerk in the office of the Munsif to permit him to have access to the record and makes an interpolation in the list of documents filed and to insert a document on the record, he is guilty under Section 466, Penal Code. The learned Judge considered the scope of the observations in Sir James Stephen's History of the Criminal Law of England, as already quoted, and expressed the view that the word 'injury' was not confined to its technical and restricted sense of an actionable wrong but in its wider and more popular sense it also implied harm to an individual or to the community at large. He took care further to remark that Sir James Stephen had specifically disclaimed any intention of attempting to construct a definition which would meet every case which might be suggested so that a person could be guilty of the offence of forgery even if the deception which be practised did not expose him, after it had been discovered, to an action for damages'. The ratio decidendi was held to be whether, if the deception which the person had practised had succeeded, harm was likely to have ensued to the community at large or to certain individuals of the community. On the facts arising in that case it was ruled that the intention of the accused was 'to deceive the Court into the belief' that the disputed document had been put in along with the original application and that the 'advantage which the accused expected to gain thereby was to obtain a decision based on a ground which he could not otherwise put forward.'

35. Lastly, the complainant's counsel relied on Mg. Ko Gyi v. Emperor A.I.R. (23) 1986 Bang. 380 : (37 Or. L. J. 1059) where a school teacher altered the dates in a diary, required to be kept and regularly filled in accordance with the circular issued by the School Board, with a view of disguising the fact that on certain dates the diary had not been kept and thus escaping the penalty which is in the form of loss of pay. It was held on these facts that there was such an intention on the part of the teacher to obtain an advantage to himself and a corresponding disadvantage to the School Board as would constitute fraud, and the teacher was guilty of an offence under Section 465 of the Code. In that case also the diotum in Sir James Stephen's History of the Criminal Law in England was considered and explained by the Court which remarked that the words therein found that 'it is hardly possible that that advantage should not have had an equivalent in loss or risk of loss to some one else' had not been sufficiently taken into, account in some of the decisions bearing on the point.

36. The position which, therefore, follows from the foregoing considerations is that the words 'gaining wrongfully' or 'losing wrong, fully', as defined in Section 28 of the Code, need not be confined only to the actual acquisition or to the actual deprivation of property and would cover also case of wrongful retention of property in the one case and wrongfully being kept out of property in the other. Again, the element of actual loss to any member of the community should not be conceived as essentially included in the meaning of the word 'fraudulently' as defined in Section 25 of the Code, it being enough that the accused had aimed at an advantage by deception which, if it would have succeeded would have secured the same to him, such advantage being always regarded as having an equivalent in loss or risk of loss to some other member or members of the community.

37. Applying these principles, we have now to see how far they affect the accused in the pre-sent case. If the accused had substituted a fresh writing subsequently prepared for the writing which he had originally filed as his defence in the proceedings before the House Controller, he, of course, is the best person to explain the object for which he had done this, We have already held that the accused in fact did this, and the only question which we have to consider in the light of the law, as above stated, is whether in doing so he had been guilty of something which could be covered either by the word 'dishonestly' or the word 'fraudulently' occur-ring in Clause (l) of Section 464, Penal Code, It cannot be denied that the accused by replacing his original reply in a stealthy manner did aim at something which he thought he had not sufficiently brought out in his original reply. This he did in a secret and clandestine manner, evading the notice both of the House Controller and also of his landlord. We have already seen that the matter which the accused wanted specifically to introduce by hi3 new reply 'was that Komal Singh was really not his subtenant, thereby repudiating what Komal Singh had himself given out, when he presented his slip of 13th February 1946, and also denying the complainant's allegation in his affidavit of 9th February 1916, that Komal Singh was really the accused's sub-tenant. He had further, by his new reply, sought to explain the manner in, and the channel through, which Komal .Singh's rent was realised, namely that the accused himself received it as a matter of facility in the first instance but eventually paid it on to the complainant.

38. In seeking to bring on the record his new writing as if it had been there from the very outset the accused surely wanted the House Controller to assume that that was really his original defence in the proceedings before him. He also wanted the complainant to believe this, although he knew that this was, as found by us in this judgment, a totally false and dishonest position. The advantage which the accused expected to gain thereby was that be would be allowed to retain the house as a tenant, based on a ground which he could not otherwise put forward. The equivalent loss to the complainant was that he would be kept out of the house which otherwise might not have been the case.

39. We think that the conduct of the accused, as proved from the evidence on the record, clearly cornea within the dutches of the law and he is guilty of making a false document both 'dishonestly' and 'fraudulently' within the meaning of Section 464, Penal Code.

40. In this view we uphold his conviction and dismiss his application in revision.

41. In the application in criminal Revision No. 1822 of 1947 filed by the complainant two points only have been raised, (l) that a certain passage towards the end of the judgment of the learned Magistrate should be expunged, and (2) that the sentence passed on the accused be enhanced. On the first point we think that the learned Magistrate went a little out of his way in making references to Shakespeare'g poetry in support of a particular point which he wanted to emphasise. We think that there was no occasion for this poetic flavour being allowed to creep into the judgment. The learned Magistrate could have certainly done without it. We do not, however, think it necessary to order its expunction, although we do not approve of it as a necessary or desirable observation.

42. As regards the question of sentence, we are of opinion that the accused was guilty of grave misconduct in removing his original writ-ten reply from the record of the House Controller and substituting a fresh one in its place in a manner unnoticed by that officer and his clerks and by everybody else. He was a responsible officer in the Traffic Police of Meerat and should have known and realised the seriousness of his act. An offence of forgery in respect of a document forming part of the record of a government official is by itself a serious offence and we are unable to take a light view of it in the present case. We, however, think that the possible effect of the accused's conviction in the present case on his prospects of survive is also a consideration which we should not overlook. In the circumstances we are of the opinion that we should not further aggravate that contingency by sending him to prison. But at the same time-we definitely think that a sentence of only Rs. 100 as fine passed by the Magistrate wag too inadequate. We, therefore, enhance this amount to Bs, 200 as fine to be paid by the accused.

43. Accordingly, while refusing the prayer for expunction of the passage objected to by the complainant, we allow his application in revision to this extent that instead of the sentence of Rs. 100 fine imposed by the Magistrate, we subsection a sentence of Rs. 200 fine.


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