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Final Order 3

CNR MHMM18003241202118 May 2024
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Final Order 3 · 18 May 2024 · CNR MHMM180032412021

Order Details: Copy of Judgment
Pdf Text: C. C. No. 1253 PW 2021 State Vs. Narendra and ors.
CNR No.MHMM18-003241-2021
Exh.39
Received on – 30.06.2021
Registered on – 30.06.2021
Decided on – 18.05.2024
Dura. – 02 Ys. 10 Ms. 18 Ds.
Exh.39
IN THE COURT OF METROPOLITAN MAGISTRATE, 12TH COURT,
BANDRA, MUMBAI
(Presided over by Komalsing Rajput)
(JUDGMENT U/SEC. 355 OF CRIMINAL PROCEDURE CODE)
a. The serial number of the case 1253/PW/2021
b. The date of commission of offence In a period running between 24.11.2009
to 27.10.2015, at the office of informant
near Bhabha Hospital, Bandra West,
Mumbai.
c. The name of the complainant Mr. Padmakar Deore, P.I., attached with
Bandra Police Station, Mumbai.
d. The name of the accused person,
his parentage and residence
Narendra Madhav Parpudi,
Age – 50 yrs., Occu.- Business,
R/o. 1402, Siddhi Heights, Sector 28,
Nerul West, Navi Mumbai.
e. The offence complained of or
proved
Under Sections 420, 465, 468 and 471
r/w.34 of Indian Penal Code.
f. The plea of the accused and his
examination (if any)
Accused pleaded not guilty.
g. The final order Accused is acquitted.
h. The date of such order 18.05.2024.
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Advocates for the Parties –
For State - Shri. Prasad Joshi, Ld. A.P.P.
For Accused - Shri. Akash Kavade, Advocate
JUDGMENT
(Delivered on 18th May, 2024)
1. Accused is facing charge for offences punishable under Sections
420, 465, 468 and 471 of Indian Penal Code.
2. The prosecution case, in brief is as under –
On 24.11.2009, the land developer, Mr. Vijay Thakkar, director of a
company M/s. Dev Land and Housing Limited, filed a proposal with local
authority for proposed construction of residence building through
architect, Mr. Narendra Parpudi. On 01.02.2010, Intimation of
Disapproval (I.O.D.), for stilt + three storied building was issued. Then on
18.03.2011, Commencement Certificate, for construction upto height of
2.94 meter was issued. Then on 28.03.2011, amended plan was approved.
While submitting documents for obtaining these approvals, No Objection
Certificate of Airports Authority of India, dated 23.09.2010, permitting
the developer to carry out construction upto the height of 56.27 meter
from the sea height was produced before the local authority, with proposal
for permission for construction.
Then while obtaining Commencement Certificate as per approval
dated 28.03.2011, the architect Mr. Narendra Parpudi, submitted before
local authority No Objection Certificate of Airports Authority of India,
dated 23.09.2010, permitting the developer to carry out construction upto
the height of 64.27 meter from the sea level. On its basis amended map
and Commencement Certificate (C.C.) was issued for the construction
upto said height.
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Later on the Manager, Airport Operation Services, Mumbai
International Airport Pvt. Ltd., Mumbai, vide its letter dated 29.07.2015,
informed to local authority that permission for construction was granted
only upto 56.27 meter from sea level as per no objection certificate, dated
23.09.2010 and not for the height of 64.27 meter, as mentioned in the no
objection certificate bearing same date.
Vide his another letter dated 18.08.2015, he also informed to local
authority that no such certificate is in existence having its no objection to
construct upto the height of 64.27 meter and as per its record the no
objection was granted to construct the building only upto the height of
56.27 meter. Thus, the architect, Mr. Narendra Parpudi and developer Mr.
Vijay Thakkar, committed forgery in the portion relating to height in no
objection certificate, dated 23.09.2010 and mislead the local authority and
fraudulently obtained permission to construct the building above the
permissible height.
After receiving this letter the local authority issued notice to
developer and directed them to decrease the height of the building. The
Commissioner, Municipal Corporation of Greater Bombay, vide his letter
dated 24.09.2015, directed the concerned authorities to lodge complaint
against developer and architect of the building.
3. Therefore, as per directions Mr. Pritam Narayan Satardekar, Junior
Engineer (Civil), Building Proposals, Western Suburbs-1, Bandra West,
Mumbai, lodged First Information Report against two persons i.e. Mr.
Vijay Thakurdas Thakkar and Mr. Narendra Madhav Parpudi (present
Accused No.1).
4. The investigation started. During investigation, Investigating
Officer recorded the statements of various witnesses including persons,
arrayed as accused in the First Information Report, i.e. Mr. Vijay
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Thakurdas Thakkar and Mr. Narendra Madhav Parpudi, (present Accused
No.1). He also prepared panchanama of the unauthorized construction. He
collected all the relevant documents. He recorded the statements of
witnesses including Mr. Mahesh Narayan Lotalikar, Junior Engineer, of
local authority and accused/developer Mr. Vijay Thakurdas Thakkar.
5. Then Investigating Officer after collecting all relevant evidence and
relying on these statements came to conclusion that there is no evidence
found against Mr. Vijay Thakurdas Thakkar, whose name is mentioned in
the First Information Report and he is not responsible for the forgery and
cheating. Relying on the statement of said witness Mr. Vijay Thakurdas
Thakkar, he came to conclusion that the architect appointed by him Mr.
Narendra Madhav Parpudi, is mainly responsible for the act. Relying on
the statement of Mr. Mahesh Narayan Lotalikar and other witnesses, he
added two other accused, i.e. present applicant/Accused No.2, Mr.
Bhaskar Ramchet Mishra and Accused No.3, Mr. Sachin Waman Parab.
6. On the basis of the above conclusions, Investigating Officer
dropped name of Mr. Vijay Thakurdas Thakkar and filed charge
sheet/final report in this court, against Mr. Narendra Madhav Parpudi, Mr.
Bhaskar Ramchet Mishra and Mr. Sachin Waman Parab.
7. During course of inquiry the additional accused persons Mr.
Bhaskar Ramchet Mishra and Mr. Sachin Waman Parab, were discharged.
The charge was framed against present accused vide, Exh.30. Accused
pleaded not guilty and claimed to be tried. Prosecution in support of its
case examined four witnesses, as -
i. P.W.1, Mr. Pritam Narayan Satardekar, Assistant Engineer/informant, Exh.14,
ii. P.W.2, Mr. Mahesh Narayan Lotalikar, Sub-Engineer/witness, Exh.18,
iii. P.W.3, Mr. Manoj Sanadkumar Joshi, Sr. Manager, Mumbai I.A., Exh.19,
iv. P.W.4, Mr. Padmakar Pandharinath Deore, P.I., Investigating Officer, Exh.32
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The prosecution also relied on following documents -
i. No Objection Certificate for height clearance, Exh.16,
ii. No Objection Certificate for height clearance, Exh.17,
iii. Commencement Certificate, Exh.18,
iv. First Information Report, Exh.19.
v. Photocopies of No Objection Certificate for height clearance, Exhs.20 and 21,
vi. Photocopy of application for Commencement Certificate, Exh.22,
vii. Copy of letter addressed to Bandra P.S., Exh.23,
viii. Photocopy of order of physical verification, Exh.24,
ix. Photocopy of letter sent to G.M., A.A.I. Western Region Mumbai, Exh.25,
x. Photocopy of letter sent by G.M., A.A.I. Western Region Mumbai, Exh.26,
xi. Photocopy of joint verification / inspection report, Exh.27,
xii. Photocopy of reports/letters sent to A.A.I., New Delhi, Exhs.28 and 29,
xiii. Photocopy of order of removal of additional construction, Exh.30,
xiv. Photocopy of letter dated 05.03.2021, Exh.33,
xv. Photocopy of letter dated 10.03.2021, Exh.34.
8. Heard both the sides. The defence of the accused is of total denial
and false implication. Considering the evidence on record, submissions of
both the parties and other facts and circumstances, the following points
arrived for my determination. I recorded my findings on each of them for
the reasons discussed below -
Sr. No. POINTS FINDINGS
1. Does it prove that the accused in furtherance of his
common intention with other persons cheated the
informant by forging certain documents? ....In the negative.
2. Does it prove that the accused in furtherance of his
common intention forged a certain document i.e.
permission for construction given by Airport Authority
of India, a valuable security, for the purpose of cheating
informant and other persons? ....In the negative.
3. What order? ....Accused acquitted.
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REASONS
As to Point Nos.1 and 2 – cheating and forgery
9. Both points are interrelated, based on common facts and common
evidence, therefore, I decided all of them with common reasoning. As
stated above prosecution in support of its case examined four witnesses.
Out of those four witnesses. The summary of evidence of first witness,
P.W.1, Mr. Pritam Narayan Satardekar, Assistant Engineer/informant,
attached with Building Construction Department, Municipal Corporation
of Greater Mumbai (M.C.G.M.), Exh.14, is that he was serving as Sub-
Engineer, Civil, Building Proposals Department, Western Suburbs,
Bandra West Mumbai between a period, January 2013 to February 2016.
In such capacity he was assigned with works of receiving proposals, their
scrutiny, etc. He knows accused and Mr. Vijay Thakkar, as they filed
several proposals with his office.
10. In the month of July or August 2015, their office received a
complaint filed by agency G.V.K. employed by Mumbai International
Airport Pvt. Ltd., Exh.15, in respect of Building Proposal
No.CE/2753/WS/AH, alleging that the permission of Civil Aviation
Authorities annexed with it is forged as two documents of same number
filed different heights. Their office called explanation from developer Mr.
Vijay Thakkar and architect Mr. Narendra Parpudi. After receiving their
explanation report was filed to their higher authorities as they found
forgery in height. Legal opinion was taken and First Information Report,
Exh.19, was filed. He proved the contents of both the No Objection
Certificates, Exhs.16 (Original Permission) and Exh.17 (Forged
permission). Their department then decided to take action.
11. The another witness, P.W.2, Mr. Mahesh Narayan Lotalikar, Sub-
Engineer/witness, attached with M.C.G.M., Building Proposal
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Department, in his evidence, Exh.18, stated somewhat same facts and
proved the fact that with the proposal both the documents. Police inquired
with him about the procedure to be followed for sanctioning building
proposals. In the disputed building proposal he found copies of No
Objection Certificates, Exhs.16 (Original Permission) and Exh.17 (Forged
permission), were filed with the Building Proposal for it’s approval. On
it’s basis commencement certificate was issued by his office.
12. The third witness, P.W.3, Mr. Manoj Sanadkumar Joshi, Sr.
Manager, Mumbai I.A., in his evidence, Exh.19, narrated the details
pertaining to detection of forgery and evidence collected by them for
ascertaining it. The summary of his evidence is that he is serving with
Mumbai International Airport, since April 2014, initially as Manager and
now as Sr. Manager. Any person willing to construct any structure within
20 k.m. of aerodrome reference point, he has to obtain permission or No
Objection Certificate from Airport Authority of India. If the construction
is above the particular limit such a person have to appeal to the Ministry
of Civil Aviation. The verification and scrutiny of such applications for
permission, is done by his office.
13. In the year 2010, developer Mr. Vijay Thakkar, applied for
permission upto certain height and was granted to construct building upto
height of 56.27 meters above sea level. As he is need of excess height he
appealed to Ministry of Civil Aviation and hence, in the year 2015, the
office of present witness received directions to verify the height of
construction made by him. The said witness found that in the No
Objection Certificate submitted there, the permissible height mentioned in
it was 64.27 meters and not as per height given by his office. After
inspecting the spot as per order, Exh.24, the said witness found that
construction was made upto the height of 68.00 meters above mean sea
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level (A.S.M.A.). He also prepared joint verification/inspection report,
Exh.27. He doubted the certificate produced with appellate authority. He
informed about it to General Manager, Airport Authority of India,
Western Region Mumbai, by sending letter, Exh.25, which replied him by
sending letter, Exh.26.
14. Therefore, he made correspondence with local authority i.e.
Municipal Corporation of Greater Mumbai, which granted basic
permission and found that the height mentioned in the no objection
certificate produced with the main proposal, Exh.20, was only upto 56.27
meters. However, the height mentioned in the No Objection Certificate
produced with his office, Exh.21, was 64.27 meters. Then he came to
know that the said certificate, Exh.21, is forged.
15. He sent letter, Exh.23, to Sr. P.I., Bandra Police Station, Mumbai,
and informed about it. Their office requested local authority to demolish
the additional structure, therefore, additional construction was demolished
by local authority. Police recorded his statement. This witness also made
further correspondence, Exhs.28 and 29. He also proved commencement
certificate, Exh.22.
16. The evidence of last witness, P.W.4, Mr. Padmakar Pandharinath
Deore, P.I., Investigating Officer, vide Exh.32, is of formal nature. He
proved various ministerial acts done during collection of evidence and
informed that the present offence was registered on 27.10.2015. After
joining Bandra Police Station, it’s investigation is handed over to him and
he received papers from his predecessor.
17. He visited the concerned office of building proposals and collected
all the documents. He deposed about correspondence made and collection
of several other documents. Then he recorded statements of witnesses. On
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the basis of material collected he came to conclusion that developer Mr.
Vijay Thakkar, is not responsible for the disputed forgery. He deleted the
name of Mr. Vijay Thakkar and filed charge sheet against present accused
and other persons.
Prosecution case in brief -
18. The record of investigation/charge sheet shows that in the year
2010, the company M/s Dev Land and Housing Limited, which is owned
by developer Mr. Vijay Thakkar, constructed building at a site City
Survey No.E/597, E/598 and E/599, Mauje Khar Road, Khar West,
Mumbai. For obtaining permission of construction from local authority he
has filed proposal with assistance of present accused i.e. architect to local
authority i.e. M.C.G.M. The building was completed.
19. Then in the year 2015, it is revealed that the particulars relating to
height mentioned in relevant column in the No Objection Certificate,
issued by Airport Authority of India, annexed with building proposal filed
with M.C.G.M. for permission of construction, is forged, particularly the
height changed from 56.27 meters to 64.27 meters. Therefore, present
offence was registered against Mr. Vijay Thakkar, developer and
proprietor of company M/s Dev Land and Housing Limited and present
accused an architect.
20. During investigation it is transpired that present accused and other
persons forged disputed certificate and filed proposal. However, there
found no role of main beneficiary i.e. Mr. Vijay Thakkar, developer.
Basic ingredients to be proved and nature of evidence required -
21. For proof of charge for cheating and forgery there must be evidence
to show that some person has been defrauded and in consequence of such
fraud wrongful gain is caused to one person and wrongful loss to another.
Further, for such purpose with intent to cause such loss some false
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documents has been prepared. Thus, there must be direct evidence to
connect the accused with the act of preparation of false document and
wrongful gain to him and wrongful loss to another.
22. For proof of these basic ingredients, the nature of the charge is such
that oral evidence carries least importance and prime importance is carried
by the documentary evidence and that too of such a nature which will
connect the accused with the act of preparation and presentation of the
forged document to the office of informant with intention to gain wrongful
and caused wrongful loss to the informant.
Scrutiny of evidence -
23. If we go to evidence of all the witnesses, P.W.1, Mr. Pritam
Narayan Satardekar, informant, in his evidence, Exh.14, deposed that at
relevant time he was not in service with concerned office. But in the year
2014, their office received a complaint about the disputed forgery and
hence, explanation from developer Mr. Vijay Thakkar, an architect i.e.
present accused has been called. After receiving their explanation, legal
opinion was obtained and First Information Report was lodged against
both of them.
24. The said witness is not the person directly witnessed the
transactions pertaining to receiving and sanctioning of building
construction proposals. He did only ministerial act of filing of First
Information Report, at the instance of his office. The said fact is also
admitted by this witness in his cross examination.
25. He produced neither contents of the inquiry report nor any other
evidence, on the basis of which the present accused can be connected with
the allegations. In his cross examination he also admitted that developer or
his representative files documents and he has to approach various officers
for obtaining various No Objection Certificates. The said witness is also
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admitted that first proposal has to be submitted to Dispatch Section of his
office, it’s every document has to be stamped after scrutiny. No document
can be directly produced to their office skipping this channel. However,
such a stamp is missing on disputed document.
26. Thus, from the above admissions also it can be said that there found
no connection of accused in the said evidence to connect him with the act
of filing of proposal or forgery. Surprisingly the whole charge sheet and
this evidence reflects that developer is the main person responsible for
filing of proposal and at his instance the documents have been filed. But
charge sheet is not filed against him though in the First Information
Report he has been named as main accused.
27. Somewhat same is the case about the evidence of another witness
i.e. P.W.2, Mr. Mahesh Narayan Lotalikar, Sub-Engineer, attached with
the office of informant. Though, in his evidence, Exh.18, he mentioned
that at relevant time of filing of building construction proposal and
submitting of disputed certificate with it, he was serving with concerned
office, he narrated only all the formalities pertaining to filing of proposal
and subsequent acts. He stated nothing from which either any role can be
attributed to the present accused or he can be connected with the disputed
forgery. In examination-in-chief itself this witness admitted that he can not
identify those persons who submitted the proposal to concerned
establishment.
28. Another witness, P.W.3, Mr. Manoj Sanadkumar Joshi, Sr.
Manager, Mumbai I.A., in his evidence, Exh.19, narrated about detection
of forgery and subsequent incidence occurred leading upto registration of
First Information Report. However, it is clear that he is not in any way
connected with the main act of presentation of proposal and filing
documents with it. He is the third person not connected with the fact of
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presentation of the disputed document with the office of informant.
Therefore, his evidence is to the same effect. On it’s basis also accused
can not be connected with the alleged act of cheating and forgery.
29. Same is the status of the evidence of the last witness P.W.4, Mr.
Padmakar Pandharinath Deore, P.I., Investigating Officer, Exh.32. He
narrated only ministerial acts, done by him during collection of evidence.
Therefore, it is also of not much use to the prosecution.
30. As stated above for proof of charge for cheating and forgery there
must be evidence to show that some person has been defrauded and in
consequence of such fraud wrongful gain is caused to one person and
wrongful loss to another. Further, for such purpose with intent to cause it
some false documents has been made. Thus, there must be direct evidence
to connect the accused with the act of preparation of false document and
wrongful gain to him and wrongful loss to another.
31. But as discussed in paragraphs, preceding to above paragraph from
the evidence produced by the prosecution the present accused can not be
connected with the alleged offences. Therefore, he can not be convicted.
Basic weakness in prosecution case -
32. Last but not least, it is necessary to mention that the construction
was done by developer Mr. Vijay Thakkar. He is the main beneficiary.
The whole record if read in context of every document and law it can be
inferred that he is responsible for filing of proposal and might have filed it
with the aid of his employees or other persons. Therefore, in the present
First Information Report, he was also arrayed as main accused.
33. However, Investigating Officer, recorded the statement of this
accused to the effect that all the activities were done by Accused No.1,
Narendra Madhav Parpudi, as per authorization given by him and he is
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unaware of the forgery and construction made as per forged record. On it’s
basis relying mainly on this statement Investigating Officer came to
conclusion that there is no evidence found against Mr. Vijay Thakurdas
Thakkar, whose name is mentioned in the First Information Report and he
is not responsible for the forgery and cheating. Relying on the statement of
said witness Mr. Vijay Thakurdas Thakkar, he came to conclusion that the
architect appointed by him Mr. Narendra Madhav Parpudi, is mainly
responsible for the act.
34. Thus, in the charge sheet the evidence against the accused is the
statement of the discharged accused/developer Mr. Vijay Thakkar and
authorization given by him to present accused to do all the acts on his
behalf, along with other documentary evidence. However, such
authorization and documents specifically connecting the present accused
with the actual act of forgery are missing from the charge sheet.
35. In this regard Ld. Advocate for the accused relied on the judgment
of Supreme Court passed in case of Sheila Sebastian Vs P. Jawaharraj and anr.
((2018)7 SCC 581), wherein after considering Section 463 and 464 of Indian
Penal Code, it is laid down that -
“Para. No.25 - Keeping in view the strict interpretation of penal statute
i.e., referring to rule of interpretation wherein natural inferences are
preferred, we observe that a charge of forgery cannot be imposed on a
person who is not the maker of the same. As held in plethora of cases,
making of a document is different than causing it to be made. As
Explanation 2 to Section 464 further clarifies that, for constituting an
offence under Section 464 it is imperative that a false document is made
and the accused person is the maker of the same, otherwise the accused
person is not liable for the offence of forgery.”
36. Thus, there must be evidence on record to connect the accused with
the actual act of making false document. Without having such direct
evidence on record charge of forgery and consequent cheating can not be
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imposed. As discussed above the evidence i.e. authorization of developer
Mr. Vijay Thakkar and other documents not connecting the present
accused with the actual act of forgery are neither produced with the charge
sheet nor proved during trial.
37. The observations of Supreme Court in case of Sheila Sebastian Vs P.
Jawaharraj and anr. ((2018)7 SCC 581), discussed above are squarely
applicable to this case. It can be inferred from the record that without
collecting necessary evidence to draw the reasonable inference of
involvement of present accused in the alleged forgery, the Investigating
Officer, filed charge sheet against present accused and other persons on
the basis of their possibility of remote connection with the allegations.
38. The charge sheet reflects that the prosecution case is itself very
weak. The very connection of the present accused is remote as main
accused or main person benefited is not charge sheeted and relieved
without any cogent basis. Despite that accused was compelled to face trial.
39. Considering these facts transpired from the record of investigation,
along with the facts transpired after scrutiny of oral and documentary
evidence relied by the prosecution it can be clearly inferred that it is not
enough to connect the present accused with the alleged act of cheating and
forgery, even remotely. On it’s basis the accused can not be held guilty.
40. Therefore, I recorded my findings on points framed above in the
negative and passing following order -
ORDER
A. Accused Mr. Narendra Madhav Parpudi, is acquitted vide Section
248(1) of Code of Criminal Procedure, of offence punishable under
Sections 420, 465, 468 and 471 r/w.34 of Indian Penal Code.
B. His bail bond stands canceled. Page - 14/16
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C. Accused, shall furnish bail bonds as per Section 437-A of Code of
Criminal Procedure.
MUMBAI (KOMALSING RAJPUT)
DATE – 18.05.2024 M.M., 12TH COURT, BANDRA, MUMBAI
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I affirm that the contents of this PDF file judgment are same word for
ward as per original judgment.
Court Name : Komalsing Rajput
Name of Steno : S. R. Parab
Date : 18.05.2024
Signed by P.O. on : 18.05.2024
Uploaded on : 22.05.2024
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