Citation : 2021 Latest Caselaw 1091 j&K/2
Judgement Date : 17 September, 2021
S. No. 55
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) No. 315/2019
CrlM No. 1093/2019
Reserved on: 31.08.2021
Pronounced on: 17.09.2021
IFFCO TOKIO General Insurance Co. Ltd. and Anr. .....Petitioner(s)
Through: Mr. Gopal Singh, Sr. Advocate with
Mr. S. F. Qadiri, Sr. Advocate and with
Ms. Lyba, Advocate
V/s
UT of J&K and Anr. ..... Respondent(s)
Through: Mr. B. A. Dar, Sr. AAG
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. In this petition, filed under Section 482 of the Code of Criminal
Procedure, the petitioners seek indulgence of this Court in quashing FIR
No. 14/2019 registered in P/S ACB (CK), Srinagar, on 22.07.2019, for
commission of offences punishable under Sections 5(1) (d) read with
Section 5(2) J&K PC Act, 2006 and Section 120-B Ranbir Penal Code
and proceedings emanating therefrom.
2. Aggrieved by the registration of FIR numbered above, the petitioners
have challenged it, inter alia, on the grounds; that impugned FIR lacks
merit and has been registered on the conjectures and surmises; that
corruption charges do not involve corruption or criminal misconduct and
thus, FIR is unsustainable; that there is no loss caused to J&K Bank due
to Corporate Agency Agreement, signed by it with J&K IFFCO TOKIO
and appointment of Mr. Asif Manzoor Beigh does not amount to corrupt
or illegal means as provided under Section 5(1) (d) of the J&K PC Act,
2006; that Corporate Agency Agreement came into effect after following
due process of law and as per the requirements envisaged under IRDAI
regulations, and was merely business agreement between the two
entities, thus, the provisions of Prevention of Corruption Act are not
made out; that the ingredients of Section 120-B of the Ranbir Penal Code
are not in consonance with the allegations made by ACB in FIR to
constitute an offence under Section 120-B, there has to be either an illegal
act, or an agreement is designated as a criminal conspiracy, just a mere
commercial business agreement formulated after following all IRDAI
regulations and guidelines, without any mala fide or criminal intention
does not amount to criminal conspiracy.
3. Learned counsel appearing for petitioners has stated that the allegations
contained in FIR do not satisfy ingredients mentioned in Section 5(1) (d)
read with 5(2) of the J&K PC Act, 2006 or Section 120-B of the Ranbir
Penal Code, thus, FIR is liable to be quashed by applying the law laid
down in State of Haryana v. Bhajan Lal, 1992 Supp.(1) SCC 335. There
is no role of the petitioners, much less, constituting the offence. Contents
of FIR are just baseless, imaginary, vague and self-contradictory
narrations/allegations, which falsify commission of any offence. Learned
appearing counsel for petitioners states that by signing of the Corporate
Agency Agreement dated 12.02.2019 between the J&K Bank and IFFCO
TOKIO, no loss has occurred to the Bank or to the public exchequer at
large. The purpose and scope of the said Corporate Agency Agreement,
was to usher in competitive market of insurance products of the J&K
Bank customers and for the people of Jammu and Kashmir. There is no
element of corruption existing in the execution of said criminal
agreement. It is also contended that ACB has failed to consider that in
terms of IRDAI (Registration and Corporate Agent) Regulations, 2015,
banks are allowed to choose three General Insurance Partners to provide
competitive market for its customers. For the appointment of IFFCO
TOKIO as insurance partner, bank had acted in a transparent manner.
There is no question of causing loss to the bank. Allegations to that effect
are erroneous. It is further contended that the registration of FIR has not
only created hindrance to all stakeholders, but has also tarnished the
reputation and goodwill of IFFCO TOKIO. There is no wrongful loss by
entering into such business agreement. Petitioners have participated in an
open tender bid and followed the process in accordance with the norms
and regulations of IRDAI, for which they cannot be penalized. IFFCO
TOKIO is a company and governed by the provisions of the Companies
Act and Insurance Laws. It is neither a State nor its instrumentality, thus,
grant of employment and determination of emoluments by a private
company should not be the subject matter of an investigation as there is
no wrongful loss caused to the bank nor there is any violation of any law
or regulations while executing the Corporate Agency Agreement.
Learned appearing counsel for petitioners also contends that to
effectively carry out a business, the petitioners had to recruit competent
employees locally, who were not only well versed and have experience
in the insurance sector, but were also aware of the ground realities
prevailing in the State and it had also to compete with Bajaj Allianz
which had a monopolistic presence in the area for a considerable period
of time. It is further stated that Mr. Asif Manzoor Beigh, who was
working with Bajaj Allianz in 2008, applied on 08.10.2018, before the
petitioners and after his interview was conducted by an Interview
Committee, his appointment was recommended. The offer was not
accepted by him, but he being a fit person for the job and also having
experience and knowledge of the local market, offer made to him, was
enhanced, so he subsequently joined IFFCO TOKIO on 13.03.2019. The
appointment of Asif Manzoor Beigh was made prior to execution of the
Agreement Agency, which fact has also not been taken into consideration
by ACB. Learned appearing counsel for petitioner submits that no
offence has been committed by petitioners inasmuch as allegations are
false and frivolous and do not constitute any offence to have been
committed by petitioners under the provisions of the Prevention of
Corruption Act or Ranbir Penal Code as mentioned in FIR. According to
him, registration of FIR is mere abuse of process of law and, thus, ends
of justice would be met in case FIR in question is quashed.
4. Heard learned counsel for the parties; perused the record on file and
considered the matter.
5. Impugned FIR has been registered after the information was received
from the source and thereafter, preliminary enquiry was conducted by
ACB. Once commission of offences punishable under Section 5(1) (d)
read with 5(2) J&K PC, Act and Section 120-B RPE were found to have
been committed in the said preliminary enquiry, FIR in question was
registered. The contents of the FIR are as under:
"On the basis of source report, a verification was conducted by Anti-Corruption Bureau to look into the allegations that an insurance deal in violation of norms has been made by J&K
Bank with one company namely IFFCO TOKIO, in which close relative of former chairman of J&K Bank is employed, resulting into undue benefits to the said company.
Consequently, a verification was conducted into the matter and it came to fore that J&K Bank had already entered into venture with PNB Met Life India Insurance Company limited for sale of its life insurance products in the year 2000, followed by similar nature of venture with Bajaj Allianz General Insurance Company limited for sale and distribution of its non-life insurance products including health products in the year 2002. However, another agreement, between J&K Bank limited and IFFCO TOKIO General Insurance Company limited was executed on 12.02.2019 to facilitate the appointment of one Asif Manzoor Beigh S/o Gulfan Beigh R/o Maqbool Manzil Baba Dam Naid Kadal, who is Son in-Law of the sister of Former Chairman J&K Bank Limited Parvez Ahmad.
This fact has further been strengthened and established during the verification, wherein it was found that said Asif Manzoor Beigh, prior to the execution of agreement between J&K Bank Limited and IFFCO TOKIO General Insurance Company Limited was working as Dy. Manager in Bajaj Allianz General Insurance Company Limited on the annual salary package of Rs. 8.75 Lakhs only, who in order to obtain undue favour and pecuniary advantage under a pre-planned conspiracy hatched with chairman J&K Bank Limited and others, resigned from Bajaj Allianz General Insurance Company Limited on 13.02.2019, a day after the execution of said insurance deal and on that very day, he was appointed in the IFFCO TOKIO General Insurance Company Limited. Thereafter, he joined at IFFCO TOKIO General Insurance Company Limited on annual salary package of Rs. 9,28,886/- (approx.. 2.5 times higher than that of Bajaj Allianz General Insurance Company Limited) as a Chief Manager on 13.03.2019 and this clearly established the connivance of then Chairman J&K Bank Limited Parvez Ahmed and others with IFFCO TOKIO General Insurance Company Limited and relative beneficiary Asif Manzoor Beigh of then chairman J&K Bank Limited to grant insurance business in favour of IFFCO TOKIO company in lieu of providing of job of Chief Manager to the said relative beneficiary at the cost of resources of J&K Bank and resultantly Bajaj Allinaz Company was closed from Srinagar and Anantnag business unit. It has also come to fore that since an approval of Board of Directors was needed in the said insurance deal, as such, a post facto approval was obtained in the matter, which was facilitated by the chairman J&K Bank Limited Parvez Ahmad. During verification, it is also surface that though an eyewash process regarding selection of insurance company was initiated, but the then Chairman J&K Bank Limited has favoured the bidding insurance company IFFCO TOKIO by managing award for higher points in its favour in presentation part so that his close relative Asif Manzoor Beigh and others could be appointed in the said insurance company at his behest. Verification has also revealed that due to said insurance deal, the said beneficiary company has been conferred business of insurance in Srinagar and
Anantnag at the cost of J&K Bank resources and that of Bajaj Allianz Company Limited, which was already in arrangement with J& Bank since 2002. Verification has further revealed that in the first quarter of Financial year 2018-2019, i.e., April to June, J&K Bank received commission from Bajaj Allianz as Rs. 159 lakh, whereas commission received from IFFCO TOKIO, whereas commission received from IFFCO TOKIO General Insurance Company for the first quarter of current financial year (i.e. 2019-20) is Rs. 88 lakh which is less by Rs. 71 lakhs thereby a loss in the form of commission to J&K Bank Limited has been caused. By resorting to the acts of favouritism and nepotism in the course of his official duty of chairman of J&K Bank Limited, Parvez Ahmed has in connivance with Warender Sinha MD IFFCO TOKIO General Insurance Company Limited his relative beneficiary Asif Manzoor Beigh and other has abused his official position and has dishonestly conferred undue pecuniary advantage upon IFFCO TOKIO in lieu of job to Asif Manzoor Beigh and others, at the cost of J&K Bank Limited, resources. The aforementioned omissions and commissions on the part of Parvez Ahmed, then Chairman J&K Bank Limited in furtherance of conspiracy hatched with Warender Sinha, Managing Director IFFCO TOKIO General Insurance Company Limited while executing an insurance deal with the said company in order to secure appointment his close relative Asif Manzoor Beigh in the said company and other at the cost of J&K Bank resources constitute criminal misconduct under J&K PC Act-2006 and, thus, disclose commission of offences punishable u/s 5(1) (d) read with 5(2) J&K P.C Act and Section 120-B RPC. Consequently, a case FIR no. 14/2019 is registered in P/S ACB (CK), Srinagar, against the Parvez Ahmed, then Chairman J&K Bank Limited. Warender Sinha Managing Director IFFCO TOKIO General Insurance Company Limited beneficiary Asif Manzoor Beigh S/o Gulfan Beigh R/o Maqbool Manzil Baba Dam Naid Kadal and others under the aforesaid sections of law and investigation has been taken up.
6. Section 482 of the Code of Criminal Procedure, provides that nothing in
the Code shall be deemed to limit or affect the inherent powers of the
High Court to make such order as may be necessary to give effect to any
order under the Code, or to prevent the abuse of the process of any Court
or otherwise to secure the ends of justice. While exercising powers under
Section 482, the court, however, has to keep in mind that it would not
ordinarily embark upon an inquiry whether the evidence in question is
reliable or not, or whether on a reasonable appreciation of it, the
accusation would not be sustained. This is the function of the Trial court.
Though the judicial process should not be an instrument of oppression,
or, needless harassment, but the Court should be circumspect and
judicious in exercising discretion and should take all the relevant facts
and circumstances into consideration before issuing the process under
Section 482 Cr.PC, lest the Section becomes an instrument in the hands
of accused persons to claim the differential treatment only because the
accused persons can spend money to approach higher forums. This
Section is not an instrument handed over to the accused to short circuit a
prosecution and bring about its sudden death.
7. It has been emphasized times without number through authoritative
judicial pronouncements that inherent powers under Section 482 Cr.PC
are to be exercised rarely, sparingly and with due circumspection. The
power cannot be used to stifle investigation or even prosecution as the
law is to be allowed to have its own course and the investigation or
prosecution to be taken to its logical end. A very limited scope is
available to find out as to whether the case falls within broader
parameters as provided and envisaged under Section 482 Cr.PC.
8. Inherent power under Section 482 Cr.PC, cannot be exercised by the
Courts in a routine manner, rather same should be exercised sparingly,
carefully with caution and in the rarest of the rare cases. The Court has
not to function as a Court of appeal or revision. Reference in this regard
is made to Som Mittal v. Govt. of Karnataka, 2008 SCW 1003 and M. N.
Ojha v. Alok Kumar Srivastav, AIR 2010 SC 201].
9. The Supreme Court in State of Telangana v. Habib Abdullah Jeelani,
reported in 2017(2) SCC 779, has held that the power under Section 482
Cr.PC, to quash FIR, is to be exercised in a very sparing manner as is
not to be used to choke or smother the prosecution that is legitimate.
Inherent powers do not confer an arbitrary jurisdiction on the High Court
to act according to whim or caprice. Such power has to be exercised
sparingly, with circumspection and in the rarest of rare cases. Inherent
powers in a matter of quashing FIR have to be exercised sparingly and
with caution and only when such exercise is justifying by the test
specifically laid down in provision itself. Power under Section 482
Cr.PC, is very wide, but conferment of wide power requires the Court to
be more cautious. It casts an onerous and more diligent duty on the Court.
10. The Supreme Court in State of Haryana and others v. Bhajan Lal and
others, 1992 Supp (1) SCC 335, has considered the scope and ambit of
Section 482 Cr. P.C. and Article 226 of the Constitution of India. After
noticing various earlier judgments, the Supreme Court gave certain
categories of cases by way of illustration, where the power under Section
482 Cr. P.C. can be exercised to prevent abuse of the process of the Court
or secure ends of justice. Paragraph 102, which provides seven categories
of cases where power can be exercised under Section 482 Cr. P.C, is
reproduced as under:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. In State of Andhra Pradesh v. Golconda Linga Swamy, reported in (2004)
6 SCC 522, the Supreme Court while dealing with the inherent powers
of the High Court under Section 482 Cr.PC, in paragraph 5, 7 and 8
observed and held as under:
"5. Exercise of power under Section 482of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision.
Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to
be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
xxxxxx
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335)......
xxxxxxx 8 As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is
called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding."
12. The above settled position of law has also been reiterated by the Supreme
Court in Priti Saraf & Anr. V. State of NCT of Delhi & Anr., 2021 SCC
Online SC 206, and it has been said that inherent power of the High Court
is an extraordinary power which has to be exercised with great care and
circumspection before embarking to scrutinize a complaint/FIR/charge-
sheet in deciding whether the case is the rarest of rare cases, to scuttle the
prosecution at its inception. It is settled that whether the allegations in
the complaint were true, are to be decided on the basis of evidence to be
adduced during trial. In the matter of exercise of inherent power by the
High Court, the only requirement is to see whether continuance of the
proceedings would be a total abuse of the process of the Court. [See:
R.P.Kapur v. State of Punjab, 1960 (3) SCR 388; State of Haryana &
Ors. V. Bhajan Lal and Ors, 1992 Suppl. (1) SCC 335; Trisuns Chemical
Industry v. Rajesh Agarwal & Ors., 1999 (8) SCC 686; Joseph Salvaraj
A v. State of Gujarat and Ors., 2011 (7) SCC 59; Arun Bhandari v. State
of Uttar Pradesh and Ors., 2013 (2) SCC 801; Anand Kumar Mohatta and
Anr. V. State (NCT of Delhi) Department of Home and Anr., 2019 (11)
SCC 706].
13. Contents of FIR, prima facie, show commission of cognizable offences
on the basis whereof it has been lodged. Registration of FIR on the
allegations mentioned therein cannot be said to be abuse of process of
law. What is being stated by petitioners to show that the allegations are
false, is a matter of investigation and trial. Whether registration of an FIR
would amount to abuse of process of law, would depend upon whether
report discloses commission of offence or not. If it does not, then
definitely powers under Section 482 Cr.PC can be exercised to quash
FIR. In the present case, the context of FIR discloses the commission of
offences, therefore, its registration cannot be said to be abuse of process
of law. Resultantly, impugned FIR cannot be quashed in exercise of
powers under Section 482 Cr.PC.
14. In the above backdrop it may be added here that Section 482 of the Code
of Criminal Procedure preserves the inherent powers of the High Court
to prevent an abuse of the process of any court or to secure the ends of
justice. The provision does not confer new powers. It only recognizes and
preserves powers which inhere in the High Court. The High Court, while
forming an opinion whether a criminal proceeding or complaint or FIR
should be quashed in exercise of its jurisdiction under Section 482
Cr.P.C., must evaluate whether the ends of justice would justify the
exercise of the inherent power. While inherent power of the High Court
has a wide ambit and plenitude, it has to be exercised to secure ends of
justice or to prevent an abuse of the process of any court. Petition on
hand, when looked from all angles, requires and demands meticulous
analyzation of facts by this Court as if it is in appeal and acting as an
appellate court and to draw its own conclusion vis-à-vis impugned FIR,
and proceedings initiated thereon. This is not the aim and objective of
provisions of Section 482 Cr. P.C. more particularly when petition on
hand does not unveil any ground muchless cogent or material one, to
portray that inherent powers are to be exercised to prevent abuse of
process of law and to secure ends of justice. In that view of matter petition
on hand is liable to be dismissed.
15. For all that has discussed above, the instant petition is without any merit
and is, accordingly, dismissed along with connected CM(s).
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 17.09.2021 "Manzoor"
MANZOOR UL HASSAN DAR 2021.09.20 17:10
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