Calcutta High Court (Appellete Side)
Pabitra Ganguly vs The State Of West Bengal And Anr on 24 February, 2026
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.R. 1643 of 2010
Pabitra Ganguly
-Vs-
The State of West Bengal and Anr.
For the Petitioner : Mr. Sounak Mukhopadhyay
Ms. Dipanwita Das
Ms. Sudeshna Maji
For the Opposite Party no.2 : Mr. Soham Banerjee
(Amicus Curiae)
Judgment on : 24.02.2026
Ananya Bandyopadhyay, J.:-
1. The instant revisional application has been filed by the petitioner against the
order dated April 20, 2010 passed by the Learned Additional District &
Sessions Judge, Barrackpore, North 24 Parganas in Criminal Appeal No.9 of
2009 arising out of judgment and order dated 13.07.2009 passed by the
Learned Judicial Magistrate, 5 th Court, Barrackpore in Complaint Case
No.673/2003, whereby the petitioner was convicted under Section 138 of the
Negotiable Instruments Act and sentenced to suffer rigorous imprisonment
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for 3 months and to pay a fine of Rs.20,000/-, in default, to suffer rigorous
imprisonment for a period of 3 months more.
2. The petitioner stated the Complaint Case No. 673/03 was initiated on the
basis of complaint lodged by the opposite party No. 2. The allegations in the
aforesaid complaint quoted the petitioner being a partner of a TV channel
namely "C-Ren" advertised in the ABP inviting finance for creditable
business and accordingly the Complainant/O.P. No. 2 invested Rs.40,000/-
through execution of an agreement dated 02.07.2001, inter alia, stipulating
the complainant would be entitled @ 5% per month as profit on the aforesaid
invested amount. Allegedly in discharge of the aforesaid liability the
petitioner issued five postdated cheques including the cheque being
no.607688 dated 16.04.2003 for Rs.10,000/-. The said cheque was drawn
on State Bank of India, Ramrajatala Branch, Howrah. It was alleged that the
said Cheque was presented by the complainant at United Commercial Bank,
Birati Branch on 11.10.2003. The said cheque was returned by the aforesaid
Bank on the ground of "Funds Insufficient". Subsequently, a demand notice
was served upon the petitioner but in vain. Consequently the proceeding
under Section 138 Negotiable Instrument Act was initiated.
3. The petitioner after receiving summons appeared before the Learned Trial
Court and was examined under Section 251 Negotiable Instrument Act,
pleaded not guilty and the trial commenced.
4. The petitioner submitted the Opposite Party No.2 never issued any cheque to
"C-Ren" or paid any amount to "C-Ren". The agreement was entered into
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between "C-Ren" and the complainant/opposite party No. 2 and not with the
petitioner. The said partnership Firm namely "C-Ren" was not a party to the
proceeding being Complaint Case No.673 of 2003. There was no dues
payable by the petitioner to the Opposite Party No.2. The purported
agreement was not in existence when the cheque was deposited for
encashment.
5. During the course of transaction, the petitioner on behalf of the said Firm
requested the complainant/opposite party no.2 to become the partner of the
said firm but the complainant refused. Thereafter the complainant compelled
the petitioner to refund the said invested amount.
6. The complainant and her son namely Subhrangshu Majumdar, forcefully
obtained 5 postdated cheques of different dates of like amount of
Rs.10,000/- each and a writing dated 15.03.03 was obtained mentioning the
cheque numbers. In this regard the petitioner was compelled to initiate a
complaint case which was pending before 1st Judicial Magistrate, Howrah
against the complainant and her son. A plain reading of the said document
would show that the same was issued under threat and coercion, which had
been admitted by the complainant/opposite party no. 2 in her evidence,
where the opposite party no.2 said that "finally the accused person compelled
to return/refund the money of Rs.50,000/- along with profit to me by way of
issuing five account payee postdated cheques".
7. The petitioner further stated to be a mere partner of the Firm "C-Ren" and
was in no way personally liable for payment to the complainant and the
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cheque in question was obtained by force for which a criminal case was
pending for disposal before 1st Judicial Magistrate, Howrah.
8. The petitioner further stated during different stages of trial of the case, the
Opposite Party No.2 previously issued a notice dated 28.04.2003 under
Section 138 of the Negotiable Instruments Act regarding the same cheque
being no.607688 dated 16.04.03 and the Complaint Case No.673 of 2003
had been initiated and continued on basis of another notice dated
30.10.2003 regarding the same cheque in question. Therefore the complaint
case being no.673 of 2003 commenced on the basis of the second notice was
barred under the Negotiable Instruments Act. The Learned Trial Court did
not take into consideration the fact of second notice though the said
previous notice dated 28.04.2003 had been marked as Exhibit-11 in the
complaint case and the complainant admitted the same. Issuance of second
notice resulted the complaint void ab initio.
9. On July 13, 2009, the Learned Judicial Magistrate, 5th Court at
Barrackpore passed a Judgment and order whereby the petitioner had been
convicted and sentenced to suffer rigorous imprisonment for three months
and also sentenced to pay a fine amounting to Rs.20,000/-.
10. In the aforesaid circumstances the petitioner preferred a Criminal Appeal
being No.9 of 2009, before the Learned Additional District & Sessions Judge
at Barrackpore, North 24 Parganas, challenging the judgment and order of
conviction passed by the Learned Judicial Magistrate, 5th Court,
Barrackpore.
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11. In the present case the Learned Sessions Judge confirmed the judgment of
trial court partly without considering the factual and legal aspect of the case.
12. The Learned Advocate representing the petitioner submitted as follows:-
i. The petitioner was the accused in a case concerning dishonour of a
cheque dated 16.04.2003 marked Exbt.-6. The petitioner had
challenged the findings of the Learned Trial Court (in the judgment
and order of conviction dated 13.07.2009) and of the Learned Trial
Appellate Court (in the judgment and order dated 20.04.2010
whereby the conviction and penalty imposed by the Trial Court was
affirmed but the term of imprisonment was set aside) holding the
petitioner to be guilty under Section 138 of the Negotiable
Instruments Act, 1881.
ii. The petitioner assailed the findings of both the Learned Trial Courts
below on two primary grounds:- The complainant/opposite party no.
2 admittedly presented the cheque for payment twice and sent two
statutory demand notices on 28.04.2003 (Ext.-11) and 31.10.2003
(Ext.-10). The petitioner challenged the maintainability of the Section
138 of the N.I. Act proceedings instituted on the basis of such
successive presentations of the said cheque. However, this point had
been held not to be valid in the decision of the Hon'ble Supreme
Court reported in AIR 2019 SC 502 which was passed after the filing
of the present revisional application. As such, the challenge to the
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successive presentations of the said cheque and the issuance of two
demand notices was not pressed by the petitioner.
iii. The debt/liability owed to the complainant/opposite party no. 2 was
on account of and/or owed by a partnership firm 'C-Ren' and not that
of the petitioner in his personal capacity. The submissions of the
petitioner in respect of this ground of challenge reflected as follows:-
a) The case of the complainant was the complainant had invested
Rs.40,000/- in respect of the partnership firm 'C-REN' wherein
the petitioner was a partner. The complainant was promised
good return on the said investment and was owed Rs.50,000/-
in that regard. The subject cheque of Rs.10,000/- was issued in
discharge of such debt/liability of Rs.50,000/-.
b) It was admitted by the complainant/opposite party no. 2 that
the entire transaction (on the basis of which the cheque was
issued) was with the partnership firm "C-Ren".
c) The agreement dated 02.07.2001, which formed the basis of the
liability purportedly owed to the complainant, was executed "for
C-REN" (Ext.-1).
d) The letter (Ext.-2) on the basis of which the complainant made
the investment of Rs.40,000/- was issued on behalf of "C-REN"
and the petitioner signed as partner of "C-REN". In fact, in the
said letter the complainant was invited to become a partner of
"C-REN".
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e) Despite the basis of the alleged liability owed to the complainant
being the transaction with the said partnership firm, the
complainant did not issue any demand notice to the said firm
(Ext.-10 and 11) nor did the complainant implead the said firm
as party in the complaint case.
f) Though the petitioner was a partner of the said firm and the
cheque was issued by the petitioner, the liability allegedly owed
to the complainant was that of the firm, and the proceeding
under Section 138 of the Negotiable Instrument Act could not
be maintained against the petitioner in his individual capacity.
No order of conviction could have been passed against the
petitioner in his personal capacity and without impleading or
serving statutory demand notices upon "C-REN".
g) The Learned Trial Court in the impugned judgment and order
dated 13.07.2009 recorded in the first paragraph itself that the
complainant's case was the petitioner was the partner of "C-
REN", and it was also recorded in the judgment that "C-REN"
was a "partnership institution" and the
"complainant invested Rs.40,000/- on the basis of an
agreement in the letter head of C-REN." Despite noting such
existence of liability only qua the firm, the Learned Court went
on to pass an order of conviction without deciding the issue of
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non-maintainability of the proceeding and non-existence of
liability/debt owed by the petitioner.
h) The Appellate Court also found that "the agreement executed on
behalf of "C-Ren", and the Court recorded the contention of the
petitioner that "the case filed as against the appellant
individually was not maintainable".
i) Despite such findings and recording of the petitioner's
contentions in that regard, the Appellate Court failed to decide
the issue as to existence of liability owed by the petitioner in his
personal capacity to the complainant.
j) The impugned orders of conviction were both perverse
inasmuch as they failed to render any decision on the points
raised by the petitioner, namely (a) maintainability of the
proceeding without impleading the said firm; (b) existence of
liability qua the complainant and the petitioner individually.
k) Section 138 of the Negotiable Instrument Act required the
existence of "debt or other liability" for which the cheque was
issued and presented. In that case, it was the case of the
complainant that the debt/liability was owed by the firm "C-
REN". As such, the proceeding was required to be initiated
against the firm, if at all.
l) Section 141 of Negotiable Instrument Act required the
impleadment of the "company" in addition to person(s) in charge
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thereof or responsible thereto. The word "company" included
partnership firms. As such, it was incumbent upon the
petitioner to serve statutory demand notice upon the firm, and
to implead the firm in the complaint case.
iv. The Learned Advocate representing the petitioner relied on the
decision of the Hon'ble Apex Court in Aneeta Hada v. Godfather
Travels and Tours Private Limited, (2012 (5) SCC 661 para 17, 51,
56, and 59)
"17. The gravamen of the controversy is whether any person who
has been mentioned in Sections 141(1) and 141(2) of the Act can be
prosecuted without the company being impleaded as an accused. To
appreciate the controversy, certain provisions need to be referred to.
...
51. We have already opined that the decision in Sheoratan
Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] runs counter to the
ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri)
97] which is by a larger Bench and hence, is a binding precedent.
On the aforesaid ratiocination, the decision in Anil Hada [(2000) 1
SCC 1 : 2001 SCC (Cri) 174] has to be treated as not laying down
the correct law as far as it states that the Director or any other
officer can be prosecuted without impleadment of the company.
Needless to emphasise, the matter would stand on a different footing
where there is some legal impediment and the doctrine of lex non
cogit ad impossibilia gets attracted.
…
56. We have referred to the aforesaid passages only to highlight that
there has to be strict observance of the provisions regard being had
to the legislative intendment because it deals with penal provisions
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and a penalty is not to be imposed affecting the rights of persons,
whether juristic entities or individuals, unless they are arrayed as
accused. It is to be kept in mind that the power of punishment is
vested in the legislature and that is absolute in Section 141 of the
Act which clearly speaks of commission of offence by the company.
The learned counsel for the respondents have vehemently urged that
the use of the term “as well as” in the section is of immense
significance and, in its tentacle, it brings in the company as well as
the Director and/or other officers who are responsible for the acts of
the company and, therefore, a prosecution against the Directors or
other officers is tenable even if the company is not arraigned as an
accused. The words “as well as” have to be understood in the
context.
…
59. In view of our aforesaid analysis, we arrive at the irresistible
conclusion that for maintaining the prosecution under Section 141 of
the Act, arraigning of a company as an accused is imperative. The
other categories of offenders can only be brought in the drag-net on
the touchstone of vicarious liability as the same has been stipulated
in the provision itself. We say so on the basis of the ratio laid down
in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a
three-Judge Bench decision. Thus, the view expressed in Sheoratan
Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly
lay down the law and, accordingly, is hereby overruled. The decision
in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with
the qualifier as stated in para 51. The decision in Modi
Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated
to be restricted to its own facts as has been explained by us
hereinabove.”
v. The presumption under Section 139 Negotiable Instruments Act was
also rebutted by the valid defence raised by the petitioner that the
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liability/debt was owed by the firm and not the petitioner in his
personal capacity – such defence was proved by the admission of the
complainant that the investment made by the complainant was on
account of transactions only with the firm and not the petitioner in
his personal capacity.
vi. The Learned Advocate representing the petitioner further relied on
the decision of the Hon’ble Supreme Court in Rangappa v. Sri
Mohan, 2010 (11) SCC 441 para 26-28)
“… 26. In light of these extracts, we are in agreement with the
respondent claimant that the presumption mandated by Section 139
of the Act does indeed include the existence of a legally enforceable
debt or liability. To that extent, the impugned observations
in Krishna Janardhan Bhat [(2008) 4 SCC 54 : (2008) 2 SCC (Cri)
166] may not be correct. However, this does not in any way cast
doubt on the correctness of the decision in that case since it was
based on the specific facts and circumstances therein. As noted in
the citations, this is of course in the nature of a rebuttable
presumption and it is open to the accused to raise a defence wherein
the existence of a legally enforceable debt or liability can be
contested. However, there can be no doubt that there is an initial
presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause
that has been included in furtherance of the legislative objective of
improving the credibility of negotiable instruments. While Section
138 of the Act specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption under Section 139
is a device to prevent undue delay in the course of litigation.
However, it must be remembered that the offence made punishable
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by Section 138 can be better described as a regulatory offence since
the bouncing of a cheque is largely in the nature of a civil wrong
whose impact is usually confined to the private parties involved in
commercial transactions. In such a scenario, the test of
proportionality should guide the construction and interpretation of
reverse onus clauses and the defendant-accused cannot be expected
to discharge an unduly high standard or proof.
28. In the absence of compelling justifications, reverse onus clauses
usually impose an evidentiary burden and not a persuasive burden.
Keeping this in view, it is a settled position that when an accused
has to rebut the presumption under Section 139, the standard of
proof for doing so is that of “preponderance of probabilities”.
Therefore, if the accused is able to raise a probable defence which
creates doubts about the existence of a legally enforceable debt or
liability, the prosecution can fail. As clarified in the citations, the
accused can rely on the materials submitted by the complainant in
order to raise such a defence and it is conceivable that in some
cases the accused may not need to adduce evidence of his/her
own.”
vii. In view of the aforesaid, it was submitted the complaint case and
proceeding under Section 138 of the Negotiable Instrument Act were
not maintainable for non-impleadment of the firm “C-REN”, no
debt/liability owed to the complainant by the petitioner in his
personal capacity was established and as such, the decisions of the
Courts below not considering such aspects were perverse. The
revisional application ought to be allowed.
13. The Learned Amicus Curiae representing the complainant submitted the
dishonour of cheque was against a legally enforceable debt against which
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proper notice was issued under Section 138 of the Negotiable Instruments
Act and the petitioner failed to repay the loan taken for the purpose of
ameliorating the business prospect of the partnership firm as evident on the
materials on record and both the Learned Trial Courts, after assessing the
evidence on record, had rightly convicted the petitioner.
14. The gravamen of the controversy in the present revisional application lies in
the determination of whether the conviction of the petitioner under Section
138 of the Negotiable Instruments Act, 1881 could at all be sustained in the
factual matrix emerging from the record. Revisional jurisdiction of this
Court, though circumscribed, nevertheless casts upon the Court a solemn
duty to examine whether the findings recorded by the Trial Courts suffer
from patent illegality, perversity, or a failure to consider material aspects
having a direct bearing on the administration of criminal justice. When a
conviction results from such fundamental omissions, the Revisional Court
cannot remain a silent spectator to the miscarriage of justice.
15. At the outset, it is necessary to notice that the entire substratum of the
prosecution case rests upon the alleged investment made by the
complainant in a partnership concern styled as “C-Ren”. The materials on
record unmistakably reveal the complainant herself asserted that a sum of
Rs.40,000 was invested in the said partnership enterprise on the basis of an
agreement dated 2nd July, 2001. The promise of returns emanates from the
said business venture. The documentary evidence relied upon by the
complainant including the agreement and the contemporaneous
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correspondence acknowledging the investment also disclose that such
transaction was entered into on behalf of the partnership firm.
16. Thus, the very foundation of the complainant’s case attributes the alleged
liability to the firm “C-Ren”. The petitioner appears in that narrative only as
a partner of the said firm. The distinction between a liability of the firm and
a personal liability of an individual partner is neither ornamental nor
technical; it lies at the heart of the statutory framework governing criminal
liability under the Negotiable Instruments Act.
17. Section 138 of the Negotiable Instruments Act criminalises the dishonour of
a cheque only when the cheque has been issued in discharge of a legally
enforceable debt or other liability. The existence of such legally enforceable
liability is therefore not merely an evidentiary circumstance but a
jurisdictional prerequisite. In the absence of proof of cheque being issued
towards the subsisting liability of the accused, the penal consequences
contemplated under the statute cannot be attracted.
18. Equally significant is the statutory architecture of Section 141 of the
aforesaid Act which governs offences committed by companies and
partnership firms. The explanation appended to the provision clarifies in
indubitable terms that the expression “company” includes a firm and that
the term “director” in relation to a firm refers to a partner of the firm. The
legal consequence flowing from this provision is well settled: When the
liability arises from a transaction undertaken by a firm, the firm itself must
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be arraigned as an accused and the persons responsible for the conduct of
its business may be proceeded against only in addition there to.
19. This requirement is not a mere procedural formality but a substantive
safeguard embedded in the statute. The criminal liability of the persons in
charge of the affairs of a company or firm is derivative in nature and arises
only when the principal offender viz., the company or firm itself, is before the
Court. The prosecution against an individual partner in the absence of the
firm therefore strikes at the very root of the statutory scheme.
20. In the present case, it stands admitted on record that the partnership firm
“C-Ren” was neither impleaded as an accused nor served with the statutory
demand notice contemplated under Section 138 of the said Act. The
complainant’s own evidence indicated that the investment transaction and
the alleged promise of return were undertaken with the said firm. Once the
complainant chose to predicate the liability upon the firm, the failure to
implicate the firm as an accused rendered the prosecution fundamentally
defective.
21. What is particularly disquieting is, both the Trial Courts have recorded the
complainant’s case pertained to investment in the partnership concern “C-
Ren”, yet despite noting such a crucial aspect the Courts proceeded to affirm
the conviction of the petitioner in his personal capacity without examining
whether the statutory requirements governing prosecution of offences by
partnership firms have been satisfied. Such a course betrays a clear non-
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application of mind to the legal consequences flowing from the admitted
facts.
22. Another aspect which merits consideration is the existence of a legally
enforceable debt. The complainant admitted in her evidence that the entire
transaction was with the partnership firm and the investment proceeded in
relation to the business activities of that firm. Once such admission surfaces
on the record, the presumption under Section 139 of the Negotiable
Instrument Act cannot be treated as irrebuttable. The presumption is a rule
of evidence and stands displaced the moment a probable defence emerges
showing that the liability has not been of the accused personally.
23. The defence of the petitioner that the liability, if any, was that of the
partnership firm thus assumed considerable significance. The complainant’s
own testimony lends credence to this defence. Once such a defence is
probabilised through the admissions of the prosecution witness the burden
reverts to the complainant to establish that the cheque has been issued in
discharge of a personal liability of the petitioner. The record is conspicuously
silent on any material that will justify such a conclusion.
24. It is further evident from record that two statutory demand notices were
issued by the complainant following successive presentations of the cheque.
Both the Trial Courts failed to undertake a comprehensive examination of
the legal consequences of such successive notices in the context of the
present prosecution. The omission to address these issues further reflects an
incomplete adjudication of the questions arising in the case.
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25. The Revisional Court cannot overlook that criminal liability under Section
138 of the Negotiable Instruments Act is founded upon strict statutory
conditions. The penal nature of the provision demands scrupulous
adherence to the requirements prescribed by the legislature. Where the
prosecution fails to establish the existence of a legally enforceable personal
liability of the accused and where the entity alleged to have incurred the
liability has not ever been brought before the Court, the continuation of
criminal proceedings will amount to stretch the statutory provision beyond
its legitimate contours.
26. The cumulative effect of these circumstances leaves no room for doubt that
the conviction of the petitioner is vitiated by a fundamental error in law. The
Trial Courts failed to appreciate the alleged liability arose, if at all, from
transaction with the partnership firm “C-Ren”. In the absence of the firm
being arraigned as an accused and in the absence of proof that the petitioner
individually owned any enforceable debt to the complainant, the conviction
cannot be sustained in the eye of law.
27. The revisional jurisdiction of this Court is therefore rightly invoked to correct
the manifest illegality that has crept into the findings recorded by both the
Trial Courts. Criminal law particularly when it imposes penal consequences,
cannot be allowed to proceed on assumptions divorced from the statutory
framework governing the offence.
28. The impugned judgments, therefore suffer from a clear failure to appreciate
the legal requirements of Section 138 and Section 141 of the Negotiable
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Instruments Act and from a non-consideration of material admissions
appearing in the evidence of the complainant herself. Such findings cannot
be permitted to stand nearly on the ground that they have been affirmed in
appeal.
29. Justice, to remain worthy of its name, must not only punish the guilty but
must equally guard against the conviction of one whose culpability has not
been established in accordance with law. Where the record discloses a
fundamental infirmity in the very institution of the prosecution case and the
existence of personal liability remains unproven, the conviction becomes
unsustainable. For these reasons, the revisional application merits
acceptance on the conviction recorded against the petitioner cannot be
allowed to survive.
30. Accordingly, the instant criminal revisional application being CRR 1643 of
2010 stands allowed.
31. The instant application, thus, disposed of.
32. There is no order as to costs.
33. I record my appreciation for the able assistance rendered by the Learned
Advocate, Mr. Soham Banerjee as Amicus Curiae appearing for the Opposite
Party no.2, in disposing of this appeal.
34. Let a copy of this judgment be sent to the Learned Trial Court as well as the
police station concerned for necessary information and compliance.
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35. All parties shall act on the server copy of this judgment duly downloaded
from the official website of this Court.
(Ananya Bandyopadhyay, J.)
