Sunday, 4 December 2016

Whether appellate court can not impose more fine than fine which can be imposed by magistrate?


Coming to the next question of imposition of
fine to the tune of Rs.1,00,000/- (Rupees one lakh)
Section 28 of Cr.P.C. provides for imposition of sentences
by High Courts and Sessions Judges, as authorised by law
Section 29 prescribes that a Magistrate of the First Class
may, interalia, impose fine not exceeding Rs.10,000/-
(Rupees ten thousand) along with sentence of
imprisonment for an term not exceeding three years or
both. The Appellate Authority, as prescribed under 386(a)
of Cr.P.C. may impose sentence, according to law. Thus,
the Appellate Authority exercises the same jurisdiction
while examining a case for an offence punishable under
Section 365 IPC, which is triable by a Magistrate, First
Class, who does not have power to impose fine exceeding 
Rs.10,000/- (Rupees ten thousand). Accordingly,
imposition of fine of Rs.1,00,000/- (Rupees one lakh) is
without jurisdiction and as such it needs modification by
way of reducing it to Rs.10,000/- (Rupees ten thousand).

35. Resultantly, I modify and reduce the fine
amount from Rs.1,00,000/- (Rupees one lakh) to
Rs.10,000/- (Rupees ten thousand), 
HIGH COURT OF SIKKIM : GANGTOK
Kashikant Jha Vs. State of Sikkim
(Criminal Appellate Jurisdiction)
S.B. : HON’BLE MR. JUSTICE S. K. AGNIHOTRI, JUDGE
Crl.Rev.P.No.01 of 2015
Dated:20th June 2016.
Citation:2016 CRLJ 4003Sikkim


1. Questioning the legality and the validity of the
judgment dated 05.02.2015 rendered in Criminal Appeal Cr.Rev.P.No.01 of 2015 2
Kashikant Jha Vs. State of Sikkim
No.06 of 2014 by the Court of Sessions Judge, Special
Division-II, at Gangtok, East Sikkim, the instant Criminal
Revision Petition under Provisions of Section 397 of the
Code of Criminal Procedure, 1973 (for short “Cr.P.C.”)
read with Section 401 of the Cr.P.C. is filed.
2. The case of the prosecution is that on a
complaint made by one Mr. Madhav Sharma S/o of Mrs.
Bishnu Maya Sharma, that he had received a forged
marks statement, purported to have been issued by the
Central Board of Secondary Examination (CBSE), Delhi
from the convict/petitioner, herein, which was
surrendered to the Vigilance Police, Gangtok and on the
basis of the said complaint a search warrant was issued
under the authority of Chief Judicial Magistrate (East &
North) at Gangtok, on 19th September, 2001.
3. On 20th September, 2001, a search of the
convict’s/petitioner’s residence at Tadong, Gangtok, was
conducted, wherefrom, total (61) sixty one documents
were seized, most of the said documents were of
photocopies of the marks statement, admit cards etc of
the various students. One photocopy of the admit card of
Madhav Sharma was also obtained. On the same day,
shop-cum-business premise owned by Mrs. Meena Jha,
wife of the convict/petitioner was also raided, wherefrom,
in total (60) sixty documents were recovered and seized,
all containing admit cards, statement of marks of various
persons. One admit card no.284 issued by the North
Bengal University, in favour of the convict/petitioner for
B.Ed Examination 1993 and also marks statement of the
B.Ed Examination 1993 indicating him as passed and one
more statement of marks of B.Ed 1995 from the same
University wherein he was found failed, were also seized
and recovered. Consequent thereupon, a Vigilance P.S.
case No.RC-19/2001 dated 22.09.2001 under Section
468/120 B, of the Indian Penal Code (for short “IPC”) was
registered. On completion of the investigation, it
transpired that the convict/petitioner had forged marks
statement of Madhav Sharma which was marked as
(Exhibit P-16).
4. It was also noticed that the marks stated in the
forged marks statement of Madhav Sharma was of one
Mingma Doma Sherpa of Tathangchen Secondary School,
Gangtok, East Sikkim and not of Madhav Sharma. In the
investigation, it was also found that the convict/petitioner
had forged the other marks statements of one Navin 
Dhakal of CBSE Class XII examination, Purna Kumar
Sharma of Bihar Education Examination Board, Class X
examination and Dhaka Devi Sharma of Bihar Education
Examination Board, Class X along with other incidental
documents. The charge sheet was filed in the Court of the
Judicial Magistrate, First Class, in Vigilance Case No. 04
of 2009 for trial for offences punishable under Sections
467/468/474 of IPC and under Section 109 of IPC read
with Section 467/468/474 of IPC.
5. The Learned Judicial Magistrate held that the
offence under Section 109 read with Sections 467/468 of
IPC was not made out and as such the convict/petitioner
was acquitted of the said offence. However, the
convict/petitioner was held guilty and convicted for the
offence under Sections 467, 468 and 474 of the IPC. He
was sentenced to undergo simple imprisonment for one
year and to pay a fine of Rs.5,000/- (Rupees five
thousand) under Section 467 IPC, in default of the
payment of fine, to undergo further simple imprisonment
for three months. Under Section 468, he was sentenced
to undergo simple imprisonment for six months and to
pay a fine of Rs.2,000/- (Rupees two thousand), in
default, to undergo further simple imprisonment for one 
month and further, under Section 474 IPC, he was
sentenced to undergo simple imprisonment of one year
and to pay a fine of Rs.5,000/- (Rupees five thousand) in
default, to undergo further simple imprisonment for three
months. All the sentences were to run concurrently.
6. Being aggrieved, the convict/petitioner
preferred the appeal, being Crl. Appeal No.6/2014, in the
Court of Sessions Judge, Special Division-II at Gangtok,
East Sikkim.
7. The Learned Sessions Judge, Special Division-II
at Gangtok, East Sikkim, examining all the facts of the
case upheld the findings in respect of recovery and
seizure of documents as mentioned in property seizure
memo (Exhibit P-5) holding that the said premises was
the shop-cum-residence under the occupation of wife,
namely, Mrs. Meena Jha (DW-1), which was also the
residence of convict/petitioner wherein Mrs. Meena Jha
was operating a shop and her business of LIC Policy.
8. The Learned Sessions Judge set aside the
conviction under provisions of Sections 467, 468 and 474
of IPC, holding that there is no evidence to prove that the
marks statement (Exhibit P-16) of Madhav Sharma was 
made by the accused person, (the convict/petitioner,
herein,) as the Investigating Officer himself in the
charge-sheet had categorically stated that there was no
direct evidence. Other documents (Exhibits P-25 to P-30)
in respect of Purna Kumar Sharma (PW-4) purportedly
issued by the Bihar Examination Board were also not
held to be made by the convict/accused and supplied to
PW-4 as according to (PW-4) the said documents were
handed over to him by one Durga Prasad Khatiwara of
Salamdang, West Sikkim, who was not examined by the
prosecution. The documents of School Leaving
Certificate, Migration Certificate, Marks Statement and
Madhyamik Passed Certificate (Exhibits P-6, P-7, P-8 and
P-9 respectively), allegedly belonging to Dhaka Devi
Sharma (PW-3) purportedly issued by Dr. Raghunandan
Saith High School, Singhiaghat, Samastipur, Bihar, were
recovered and seized from the residence of the
convict/petitioner, which were found to be fake and made
by the convict/petitioner. The Sessions Judge, further
held that it was a case of forgery simpliciter and
accordingly the convict/petitioner was rightly convicted
under Section 465 of the IPC. 
9. Consequently, the convict/petitioner was
sentenced to undergo simple imprisonment for a term
of six months and to pay a fine of Rs.1,00,000/- (Rupees
one lakh) in default of making payment of the fine, he
was to further undergo simple imprisonment of six more
months.
10. Being aggrieved, the convict/petitioner had
preferred the instant Criminal Revision Petition as
aforestated.
11. Shri A. Moulik, Learned Senior Counsel
referring to certain parts of statements made by the
Investigation Officer, Mrs. Doma Chamzo (PW-1), Dr. D.
K. Sarkar, the Controller of Examination, North Bengal
University (NBU) (PW-30), Ramdulari Kumari, Head
Mistress of Model Inter School, Samastipur, Bihar (PW-
31) and the Investigating Officer (I.O.), Mr. Dhan Singh
Rai (PW-32), would contend that no case of forgery as
defined under Section 463 of IPC is made out.
12. Mr. A. Moulik would further contend that no
witness has stated that the convict/petitioner has
committed forgery with intention to commit any wrongful
loss to anybody. Further no evidence has come forward 
to establish that the convict/petitioner had made any gain
from the aforestated seized documents.
13. The next contention of Mr. Moulik is that the
marks sheet of B.Ed examination 1993 (Document –D),
letter of the Controller of Examination (Exhibit-44)
wherein, it is stated that the convict/petitioner has failed
in the B.Ed Examination in the year 1993 and also in the
year 1995 and the said document was tampered one, and
also other documents are the photocopies and the
prosecution have failed to produce the original of the
same. It is further urged that the convict/petitioner had
not used the said purported B.Ed examination marks
sheet, 1993 for any gain or loss caused to any.
14. Mr. Moulik would further contend that the
charge sheet which is corroborated by the deposition of
the investigating Officer clearly indicates that there are
no direct evidence of forgery against the
convict/petitioner. The documents (Exhibits P-6 to P-9)
allegedly prepared for Mrs. Dhaka Devi Sharma, was not
produced before any authority or anybody for gain and
have not caused any wrongful loss. The aforestated
documents were seized from the wife of the
convict/petitioner, who is admittedly LIC agent and kept 
the said documents for the purpose of verification of date
of birth of the persons concerned.
15. On the question of sentence of fine to the tune
of Rs.1,00,000/- (Rupees one lakh), Mr. Moulik, would
contend that the provisions of Section 386(a) of the
Cr.P.C., the Appellate Court is obliged to pass the
sentence of the convict/petitioner according to law under
Section 29 of the Cr.P.C. The First Class Magistrate is
empowered to impose fine not more than 10,000/-
(Rupees ten thousand), and as such, under provisions of
Section 28, the fine cannot be more than what the First
Class Magistrate is empowered to do.
16. In response, Mr. Karma Thinlay Namgyal,
Learned Additional Public Prosecutor, would submit that
the evidence of Dhaka Devi Sharma (PW-3) is very clear
wherein she has unerringly stated that the documents
(Exhibits P-6 to P-9) were prepared by the
convict/petitioner as the convict/petitioner had offered to
provide for the Class X pass certificate and for that
purpose he had taken down her bio-data. It was further
stated that the amount fixed for the said certificate was
Rs.10,000/- (Rupees ten thousand). However, the same
could not be taken as she did not pay the said amount. 
17. It is further submitted that the stated
documents were seized from the bed room of the
convict/petitioner and the convict/petitioner in his
statement under Section 313 has not explained of the
existence of said documents. In respect of B.Ed
Examination Certificate 1993, found in the bedroom of
the convict/petitioner, it was clearly stated by the
Controller of Examination that it was not issued by the
University and also the convict/petitioner has never
passed B.Ed Examination in 1993 and subsequently, in
1995 also, he failed, the convict/petitioner has failed to
explain, excepting a denial simplicitor.
18. Referring to a decision of the State of W.B. vs.
Mir Mohammad Omar and Ors,
1
it was contended that
there is a clear presumption that the said documents
were made by the convict/petitioner, as prescribed
under provisions of Section 114 of the Evidence Act.
19. I have given anxious consideration to the
submissions advanced by the Learned Senior Counsel as
well as the Learned Additional Public Prosecutor. I have
also examined all the evidences, impugned judgment and
1. (2000) 8 SCC 382
also the judgment rendered by the Trial Court carefully.
20. It is evident that the complaint of Madhav
Sharma to the effect that he was given the Secondary
School Examination pass marks statement by the
convict/petitioner, when Madhav Sharma failed in the
written examination, necessitated raid of the residence of
the convict/petitioner as well as the shop-cum-business
premises owned by his wife. The same resulted into
seizure of as many as 61 incriminating documents from
one place and 60 from other place. In the Court below, it
could not be established by the prosecution that all the
documents were forged by the convict/petitioner.
However, in respect of documents (Exhibits P-6 to P-9)
i.e., School Leaving Certificate, Migration Certificate,
Marks Statement and Madhyamik Passed Certificate of all
Dhaka Devi Sharma, seized from the bedroom of the
convict/petitioner were found to be forged as
corroborated by the evidence of (PW-3).
21. Further, the convict/petitioner has no
explanation how the said documents came into his
possession. The inquiry made from Dr. Raghunandan
Saith High School, Singhiaghat, Samastipur, Bihar, 
[Exhibit 45(b)] clearly indicated that Dhaka Devi Sharma
never appeared in the main or supplementary Secondary
Examination in 1989 from the School and passed
thereon. Dhaka Devi Sharma (PW-3) has clearly stated
in her deposition that she had never written any
examination and also did not pass any examination as
per the seized documents. Thus, it is luculent that the
aforestated documents found in possession of the
convict/petitioner, for want of any explanation in his
statement, have been manufactured by the
convict/petitioner.
22. In respect of B.Ed pass certificate 1993, it has
come on the record from the statement of Dr. D. K.
Sarkar, (PW-30), Controller of Examination, North Bengal
University, that no such certificate was issued in favour of
the convict/petitioner, though the convict/petitioner
appeared in 1993 as well as in 1995 for the B.Ed
Examination, but unsuccessfully. This document of 1993
is also held to be manufactured by him.
23. The next question which arises for
consideration is asto whether if the forged documents are
not used for gain are no loss is caused to the public or to 
any person, or authority, whether it comes under the
definition of forgery as enshrined under Section 463 IPC.
24. In order to appreciate, the ambit and scope of
the provisions, the same is extracted as under:
“463. Forgery.-[Whoever makes any false
documents or false electronic record of part of a
document or electronic record, with intent to
cause damage or injury], to the public or to any
person, or to support any claim or title, or to
cause any person to part with property, or to
enter into any express or implied contract, or
with intent to commit fraud or that fraud may be
committed, commits forgery.”
25. In Monica Bedi vs. State of Andhra Pradesh
2
cited by the Learned Senior Counsel for the
convict/petitioner, the Supreme Court held that to satisfy
the ingredients of Section 463 there should be an
intention to cause damage or injury, to the public or to
any person, or to support any claim or title, or to cause
any person to part with property, or to enter into any
express or implied contract, or with intent to commit
fraud, in following words:-
“47. In our considered opinion, the High
Court was not justified in convicting Mohd. Yunis
(A-7) at all for it had found no case against the
appellant made out under Section 120-B IPC and
further found that there is no evidence to assume
that he was hand in glove with the other accused
for the purpose of cheating. That there is no
2. (2011) 1 SCC 284
evidence that A-7 prepared false document with
intent to cause damage or injury, to the public or
to any person, or to support any claim or title, or
to cause any person to part with property, or to
enter into any express or implied contract, or
with intent to commit fraud. The ingredients of
Section 463 are not satisfied. In such an event
the conviction of the appellant under Section 465
IPC is unsustainable.”
26. In Sushil Suri vs. Central Bureau of
Investigation and Anr.3
, the Supreme Court laid down,
the basic elements of forgery as defined under Section
460 as under:-
“26.Similarly, the definition of “forgery” in
Section 463 IPC is very wide. The basic elements
of forgery are:-
(i) the making of a false document or part
 of it, and
(ii)such making should be with such intention
as is specified in the section viz.
(a) to cause damage or injury to
(i) the public, or
(ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with
property; or
(d) to cause any person to enter into an
express or implied contract; or
(e) to commit fraud or that fraud may be
committed.”
27. In Mir Nagvi Askari vs. Central Bureau of
Investigation4
, cited by the petitioner, the Supreme
Court dealing with the basic ingredients, held as under:-
“163. These three offences deal with
3. (2011) 5 SCC 708
4. (2009) 15 SCC 643
substantially what is known as forgery,
defined in section 463 or making of a false
document which is provided under Section
464. It is reproduced heretobelow:
“464. Making a false document.-A
person is said to make a false document or
false electronic recordFirst.-Who
dishonestly or
fraudulently –
 (a) makes, signs, seals or
executes a document or part
of a document;
(b) makes or transmits any
electronic record or part of
any electronic record;
 (c) affixes any digital
signature on any electronic
record;
(d) makes any mark
denoting the execution of a
document or the authenticity
of the digital signature,
with the intention of causing it to be
believed that such document or part of
document, electronic record or digital
signature was made, signed, sealed,
executed, transmitted or affixed by or by
the authority of a person by whom or
by whose authority he knows that it was
not made, signed, sealed, executed or
affixed; or
Secondly.- who, without lawful
authority, dishonestly or
fraudulently, by cancellation or
otherwise, alters a document or an
electronic record in any material part
thereof, after it has been made,
executed or affixed with digital
signature either by himself or by any
other person, whether such person
be living or dead at the time of such
alteration; or
Thirdly.-Who dishonestly or
fraudulently causes any person to
sign, seal, execute or alter a
document or an electronic record or
to affix his digital signature on any
electronic record knowing that such
person by reason of unsoundness of
mind or intoxication cannot, or that 
by reason of deception practiced
upon him, he does not know the
contents of the document or
electronic record or the nature of the
alteration”.
164. A person is said to make a false
document or record if he satisfies one of the
three conditions as noticed hereinbefore and
provided for under the said section. The first
condition being that the document has been
falsified with the intention of causing it to be
believed that such document has been made by a
person, by whom the person falsifying the
document knows that it was not made. Clearly
the documents in question in the present case,
even if it be assumed to have been made
dishonestly or fraudulently, had not been made
with the intention of causing it to be believed that
they were made by or under the authority of
someone else. The second criterion of the section
deals with a case where a person without lawful
authority alters a document after it has been
made. There has been no allegation of alteration
of the voucher in question after they have been
made. Therefore, in our opinion the second
criterion of the said section is also not applicable
to the present case. The third and final condition
of Section 464 deals with a document, signed by
a person who due to his mental capacity does not
know the contents of the documents which were
made i.e. because of intoxication or unsoundness
of mind, etc. Such is also not the case before us.
Indisputably therefore the accused before us
could not have been convicted with the making of
a false document.
165. The learned Special Judge,
therefore, in our opinion, erred in holding that
the accused had prepared a false document,
which clearly having regard to the provisions of
the law, could not have been done.
166. Further, the offence of forgery deals
with making of a false document with the specific
intentions enumerated therein. The said section
has been reproduced below.
“463. Forgery – Whoever makes any
false documents or false electronic record
or part of a document or electronic record,
with intent to cause damage or injury, to
the public or to any person, or to support
any claim or title, or to cause any person to
part with property, or to enter into any 
express or implied contract, or with intent
to commit fraud or that fraud may be
committed, commits forgery.”
However, since we have already held that the
commission of the said offence has not been
convincingly established, the accused could not have
been convicted for the offence of forgery. The definition
of “false document” is a part of the definition of
“forgery”. Both must be read together. [Vimla (Dr.)v.
Delhi Admn.] Accordingly, the accused could not have
been tried for offence under Section 467 which deals
with forgery of valuable securities, will, etc. or Section
471 i.e. using as genuine a forged document or Section
477-A i.e. falsification of accounts. The conviction of
the accused for the said offences is accordingly set
aside.”
28. The case of Jibrial Diwan Vs. State of
Maharashtra5
, cited by Mr. Moulik, is of no assistance to
the facts for the instant case as the said case deals with
cheating and as such, I am not inclined to deal with the
same.
29. In Bank of India vs. Yeturi Maredi Shanker
Rao and Another6
, the accused was convicted for an
offence under Section 420 and also for an offence under
Section 467 read with Section 109 and also under Section
471, the Supreme Court noticing that the accused used
5. AIR 1997 SC 3424
6. (1987) 1 SCC 577Cr.
the forged documents and obtained money, held as
under:-
“15. As regards the offence under
Section 467 read with Section 109, the
learned High Court acquitted the
respondent because it came to the
conclusion that there is no evidence to
establish as to who forged the signatures of
PW 1 on the withdrawal form. It is no
doubt true that so far as the evidence
about the forgery of the signatures of PW 1
on the withdrawal form is concerned there
is no evidence except the fact that the
signatures are forged and the further fact
that this withdrawal form was in the
possession of respondent-accused who
presented it in the Bank and obtained
money therefrom and pocketed the same.
From these facts an inference could safely
be drawn that it was the respondentaccused
who got signatures of PW 1 forged
on this document as it was he who used it
to obtain money from the Bank from the
account of PW 1 and pocketed the same. It
is no doubt true that there is no evidence
as to who forged the signatures of the
withdrawal form but the circumstances
indicated above will lead to the only
inference that it was the accusedrespondent
who got the signatures of PW 1
forged on the withdrawal form. In this
view of the matter therefore the acquittal
of the respondent for an offence under
Section 467 read with Section 109 also
could not be justified.”
30. It is eloquent from the aforestated judicial
pronouncements that the basic ingredients to satisfy the
definition of “forgery” is not that actual gain is to be
made or loss be caused to the public or any person. The
basic requirement is an intention which may be derived
from the conduct of the accused and also from other 
evidences. Plain reading of the definition of the “forgery”
as enshrined under Section 463 of the Indian Penal Code
(for short “I.P.C.”) makes it clear that making of any
false documents with intent to cause damage or injury or
to any person with intent to commit fraud amongst,
committing her forgery, is essential requirement.
31. It is apt to refer to an observation of the
Supreme Court in State of W.B. vs. Mir Mohammad
Omar and Ors,1 (Supra) which reads as under:-
“31. The pristine rule that the burden of
proof is on the prosecution to prove the guilt of
the accused should not be taken as a fossilized
doctrine as though it admits no process of
intelligent reasoning. The doctrine of presumption
is not alien to the above rule, nor would it impair
the temper of the rule. On the other hand, if the
traditional rule relating to burden of proof of the
prosecution is allowed to be wrapped in pedantic
coverage, the offenders in serious offences would
be the major beneficiaries and the society would
be the casualty.
32. In this case, when the prosecution
succeeded in establishing the afore-narrated
circumstances, the court has to presume the
existence of certain facts. Presumption is a
course recognized by the law for the court to rely
on in condition such as this.”
32. In the case on hand, the documents (Exhibits
P-6 to P-9) were created by the convict with intention,
knowing fully well that the said documents may facilitate
the person concerned to obtain some benefit and cause
fraud on the person and authority. Commission of an
offence of fraud is not necessary. Thus, even if the 
documents could not be delivered or payment could not
be received and the same was not used for any purpose,
the forgery stands committed.
33. Accordingly, the entire acts come within the
definition of “forgery”. Once forgery is committed, the
convict/petitioner is liable to be convicted under
provisions of Section 465 of IPC. As a sequel, I have no
hesitation to hold that the impugned judgment rendered
by the Appellate Judge is just, proper and lawful.
34. Coming to the next question of imposition of
fine to the tune of Rs.1,00,000/- (Rupees one lakh)
Section 28 of Cr.P.C. provides for imposition of sentences
by High Courts and Sessions Judges, as authorised by law
Section 29 prescribes that a Magistrate of the First Class
may, interalia, impose fine not exceeding Rs.10,000/-
(Rupees ten thousand) along with sentence of
imprisonment for an term not exceeding three years or
both. The Appellate Authority, as prescribed under 386(a)
of Cr.P.C. may impose sentence, according to law. Thus,
the Appellate Authority exercises the same jurisdiction
while examining a case for an offence punishable under
Section 365 IPC, which is triable by a Magistrate, First
Class, who does not have power to impose fine exceeding 
Rs.10,000/- (Rupees ten thousand). Accordingly,
imposition of fine of Rs.1,00,000/- (Rupees one lakh) is
without jurisdiction and as such it needs modification by
way of reducing it to Rs.10,000/- (Rupees ten thousand).
35. Resultantly, I modify and reduce the fine
amount from Rs.1,00,000/- (Rupees one lakh) to
Rs.10,000/- (Rupees ten thousand), and it is further
modified to the extent that in default to pay the fine
amount the convict/petitioner shall further undergo
simple imprisonment for a period of three more months.
Imposition of sentence to undergo simple imprisonment
for a term of six months is maintained.
36. The convict/petitioner shall deposit the fine
amount to the State exchequer within 30 (thirty) days
from today, i.e., on or before 20.07.2016. The period of
imprisonment already undergone by the convict/
petitioner shall be set off against the sentence of
imprisonment for 6 (six) months, as ordained
hereinabove.
37. It is stated that the convict/petitioner was
taken into custody on 26.09.2001 and continued therein
till 27.03.2002 and as such he has completed six months 
one day incarceration, accordingly no further
imprisonment is required.
38. The petition is, accordingly, partly allowed.
39. A copy of this order be transmitted to the
Learned Trial Court forthwith with the entire case records
called for be returned to the Learned Trial Court.
( S.K. Agnihotri )
 Judge
 20-06-2016

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