Research › Search › Judgment

Gujarat High Court · body

2012 DIGILAW 312 (GUJ)

Sureshbhai Dhlabhai Patel v. State of Gujarat

2012-04-03

Z.K.SAIYED

body2012
JUDGMENT : Z.K. Saiyed, J. By way of the present appeal filed under Section 27 of the Prevention of Corruption Act, 1988 read with Section 374(2) of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of conviction dated 8.11.2011 passed by the learned Second Extra Assistant Sessions Judge and Special Judge (ACB Case), Bharuch, in Special A.C.B. Case No.4 of 1998. The said case was registered against the appellant-original accused for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. The appellant is sentenced to undergo R.I. for one year and six months and a fine of Rs. 5,000/-, in default, R.I. for three months for the offence punishable under Section 7 of the Prevention of Corruption Act. He is also sentenced to undergo R.I. for one year and six months and to pay fine of Rs. 5,000/-, in default, R.I. for three months for the offence punishable under Sections 13(1)(d) and Section 13(2) of the Prevention of Corruption Act and substantive sentences are ordered to run concurrently. 2. According to the prosecution case, PW No.1 Vinodkumar Laxmanbhai Patel Ex.11 is the complainant. His FIR is at Ex.22. On 27.3.1998 at 7:00 p.m. his FIR is registered at Bharuch ACB Office. It was recorded at ACB Office, Vadodara at 4:30 p.m. on 26.3.1998. The case of the complainant in his FIR Ex.22 is that in partnership with his wife Urvashi and with his younger brother Yogesh he has been doing the business of Weight and Measures repairing in the name and style of “Vivid System” at Vadodara and Ankleshwar. He was conducting the trading business. Every year for scrutiny they have to produce the weighing scales before the Weight & Scale Inspector of the concerned area and they have to take the license for 4 districts, like Vadodara, Kheda, Panchmahal and Bharuch. In 1996 the license was given to him for all over the Gujarat State and for complying with the procedural requirement he had to visit all over Gujarat. His services were engaged by his customer companies at Ankleshwar. In 1998 for the purpose of scrutiny etc. on 24.3.1998 he had to go to the office of the accused. In 1996 the license was given to him for all over the Gujarat State and for complying with the procedural requirement he had to visit all over Gujarat. His services were engaged by his customer companies at Ankleshwar. In 1998 for the purpose of scrutiny etc. on 24.3.1998 he had to go to the office of the accused. The complainant's office is situated at 401, World Trade Centre, Sayajiganj, Vadodara and its Branch Office is situated at B/43, Ravi Complex, Old National Highway No.8, GIDC, Ankleshwar, Dist. Bharuch. In Bharuch District his services were engaged by his customer companies on annual contract basis and as per the Weights & Measures Act, 1985, every year he had to visit the Inspector for scrutiny of the Scales of Weights and Measures for getting the certificate about their correctness. The accused was the Inspector of the concerned area. His grievance was that over and above the legal consideration for that, the accused was demanding additional amount as bribe amount. (1) M/s. Gujarat Lyka (2) M/s. Gujarat Lyka (3) M/s. Bright Handolite (4) M/s. Iron Exchange (5) M/s. Lupin Laboratory (6) M/s. Lupin Laboratory (7) M/s. J.B. Chemicals (8) M/s. Sukhdev Chemicals are the companies, certificates for which about weights and measures expired in March, 1997. Therefore, he had approached the accused on 24.3.1998 for getting the certificate and met the accused at his office at Ankleshwar GIDC Camp situated behind Dena Bank, at about 11:00 or 11:30 a.m. he gave to him the details of his aforesaid 8 customers. The fees of Rs. 2443/- was paid by him as per the instructions of the accused and then the accused demanded illegal consideration of Rs. 7,500/- for 5 units @ Rs. 250/- per unit and Rs. 1,500/- for one mechanical weighbridge. He also demanded illegal consideration of Rs. 1,000/- for 10 forms @ Rs. 100/- per form. Thus in all the accused demanded the bribe amount of Rs. 10,110/-. He also said that for Shri. V.D.Vahiya he had to pay the additional amount of bribe of Rs. 1,000/- and thus he had to pay total bribe amount of Rs. 11,110/-. He threatened him that if this amount was not paid to him, he would see to it that his customers' business would be transferred from him to the local repairers. 1,000/- and thus he had to pay total bribe amount of Rs. 11,110/-. He threatened him that if this amount was not paid to him, he would see to it that his customers' business would be transferred from him to the local repairers. The complainant said to the accused that at the relevant point of time he had no funds but he assured him that he would surely make the payment of the amount. The accused also in turn assured him that he would do his job. But so far as his other stamping work is concerned, they were to be done on 27.3.1998. The accused, therefore, told him that for that purpose he would go to his office between 11:30 a.m. and 12:00 noon and thus he would reach his office and there he would receive money from him. Alternatively, he said that if he is not able to reach the office of the complainant, he should go to his camp office and give him the money. Then he gave stamps of approval and also gave to him the certificate. At the time, when the complainant gave the FIR he assured the police that he would produce all papers lateron. In his FIR he further says that perhaps on 27.3.1998 for other procedural requirements which were to be complied with in re-stamping also the accused might demand further amount of bribe. 3. PW No.3 - Police Inspector, ACB, Vadodara Jagmalbhai Govindbhai Chauda Ex.21 recorded the FIR Ex.22 and then drew the first part of the trap panchnama Ex.13 on 27.3.1998 between 6 and 8 p.m. Thereafter, the raiding party after following necessary formalities in the ACB office Vadodara left Vadodara at 8:15 a.m. in the Government jeep and along with them there was Shri. Vasava, Assistant Director, ACB who also came in his vehicle. As per the instructions given to the complainant the vehicles were parked at some distance from the place at which the raiding party had to go, where they reached at 10.15 a.m. but thereafter as it was decided earlier all members of the raiding party got down. The complainant and PW No.12 Mayankbhai Shashikantbhai Bhandari Ex.12 Panch -1 went ahead. They reached the office of the complainant. The complainant opened his office. At that time Panch-1 was with him. The complainant and PW No.12 Mayankbhai Shashikantbhai Bhandari Ex.12 Panch -1 went ahead. They reached the office of the complainant. The complainant opened his office. At that time Panch-1 was with him. Other members of the raiding party including Panch-2 were following them and in the open space near the office of the complainant they spread over themselves. The complainant came in a car and got down from it with a black colour bag. He sat on the left hand side of the complainant on a chair. After some time the complainant gave a prearranged signal and made voice as if he was at the relevant time coughing so that raiding party members entered the premises of the complainant and the accused was found accepting the bribe amount with his right hand and, thereafter, the bundle of those currency notes were put on the bag and thereafter in the bag itself. The second part of the Panchnama was over at 4:00 p.m. on 27.3.1998. 4. Charge Ex.5 was framed by the learned Judge under Sections 7, 13(2) read with Section 13(1)(d) of the Act for accepting the agreed bribe amount of Rs. 11,110/- + Rs. 5,000/- lumpsum. Thus, in all for accepting the bribe amount of Rs. 16,110/- the accused was accordingly charged. 5. The statement of the accused under Section 313 of the Code was recorded vide Ex.6. The accused had also submitted written explanation. He pleaded not guilty to the charge and claimed to be tried. His case was one of total denial, meaning to say that he had not accepted the money. In his further statement he said that over a period of his service for two years, he had given 192 certificates under the Vivid System. In 7 to 8 cases only he had not given such certificates. Vinodbhai was not coming for complying with the necessary requirements. The complainant and some other persons had given an application to the Controller of Weights & Measures, Ahmedabad. But subsequently by filing an affidavit that application was withdrawn by the complainant. He produced copies of that application and also of the affidavit withdrawing the said application with his affidavit which he sworn in his capacity as the President, Vadodara District Weights & Measures Repairers' Association. 6. The learned Special Judge accepted the prosecution case and passed the judgment and order of conviction. He produced copies of that application and also of the affidavit withdrawing the said application with his affidavit which he sworn in his capacity as the President, Vadodara District Weights & Measures Repairers' Association. 6. The learned Special Judge accepted the prosecution case and passed the judgment and order of conviction. After the judgment of conviction and sentence was pronounced by the learned trial Judge, it was directed that the accused be enlarged on bail for a period of one month from the date of order of conviction and sentence in order to enable him to obtain proper orders from this Court for suspension and execution of the sentence passed by him. 7. Mr. K.J. Shethna, learned counsel is appearing for the appellant. He has read charge Ex.5 and contended that it is the duty of the prosecution to prove the charge beyond reasonable doubt. The demand and acceptance which are the main ingredients are required to be proved to prove the case of the prosecution for the offence punishable under Sections 7 and 13 of the Prevention of Corruption Act. He submitted that looking to the contents of the charge, evidence of the complainant, who is examined by the prosecution at Ex.11 the P.W. No.1 - Vinodkumar Laxmanbhai, demand is prima-facie not proved and the question regarding acceptance cannot arise when the demand is not proved beyond reasonable doubt. He read the evidence from the deposition of the P.W. No.1 and contended that demand of Rs. 11,110/- made by Sureshbhai from which Rs. 10,101 was for Sureshbhai and Rs. 1,000/- was for his officer. When the accused told the complainant for bribe he denied for the same. At that time accused told him that his business will spoil. He has read the complaint Ex.22 and contended that from perusal of the complaint it appears that the oral evidence of the present complainant PW No.1 is totally contradictory and even from cross-examination of this witness also prosecution has failed to prove the case against him. He has read paras 3 and 4 from the oral version of PW No.1 and contended that demand is not proved. He has contended that so far as conduct of the present complainant PW No.1 is concerned, the evidence produced for demand and acceptance creates doubt. He has contended that identification of muddamal creates some doubt. He has read paras 3 and 4 from the oral version of PW No.1 and contended that demand is not proved. He has contended that so far as conduct of the present complainant PW No.1 is concerned, the evidence produced for demand and acceptance creates doubt. He has contended that identification of muddamal creates some doubt. He has also read the exchange of dialogue between the appellant and the complainant and contended that when the conduct of the present complainant creates some doubt then order of conviction cannot be passed against the present appellant. 8. Mr. Shethna has further read out incident 27th and contended that, on asking the accused by the present complainant that he has to pay anything for the work of 27th. The accused told the complainant that they will settle the account later on. In connection with that oral discussion, the prosecution has not proved demand of illegal gratification. He has contended that muddamal which is recovered is also not proved beyond reasonable doubt. He has read the oral version of the complainant and contended that looking to the oral version of the present complainant and evidence regarding affidavit, the evidence of the complainant cannot be considered when he is a habitual complainant and his character is doubt. Mr. Shethna has read the oral version of the PW No.2-Mayankbhai, who is examined at Ex.12. He has read the oral evidence of this witness at para-5 and contended that from his evidence also prosecution has failed to prove demand and acceptance. He has read the contents of the panchnama Ex.13 and oral version of the panch witness at Ex.12 as well as the contents of Ex.22 and contended that when sufficient contradiction is proved beyond reasonable doubt then it becomes clear that the learned Special Judge has committed grave error in the judgment and order of conviction. He has, therefore, contended that the judgment and order is required to be quashed and set aside. 9. He has further contended that the present appellant has disclosed his defence even in cross-examination of the witnesses also. He has read further statement of the appellant-accused recorded under Section 313 of the Criminal Procedure Code and contended that looking to the same, the defence version cannot be discarded straightway. He has further contended that prosecution has examined sanctioning authority at Ex.25. He has read further statement of the appellant-accused recorded under Section 313 of the Criminal Procedure Code and contended that looking to the same, the defence version cannot be discarded straightway. He has further contended that prosecution has examined sanctioning authority at Ex.25. He has read the oral version of this witness and contended that sanction Ex.28 given by this witness is given without application of mind and when sanctioning authority has not applied its mind then that sanction Ex.28 is null, void and defective, and, therefore, the case of the prosecution can be faulty. He has further contended that panchas are selected. He has read the oral version of prosecution witness No.1 and also the oral evidence of panch witness PW No.2 and contended that it is admitted by the above witness that in the year 1998 in the month of March he was serving in office of Geologist as Tracer at Vadodara. He was called by the ACB office and therefore, he had reached at the place at around 4:00 o'clock. He has further contended that looking to the date 26.3.1998 and looking to the date of visit i.e. 27.3.1998 the same creates some doubt. He has further contended that at para- 13 panch witness has admitted that in his oral version regarding visit of the ACB office which shows that this witness is a liar, untrustworthy and unreliable. He has contended that the oral version of PW No.3 - Jagmal Govindbhai Chavda, Police Inspector, before whom the contents of the complaint were disclosed by the complainant PW No.1 at around 3:00 o'clock also creates some doubt. It is contended that even in the cross-examination total contradictory version is proved beyond reasonable doubt in connection with the prosecution trap, demand and acceptance. Mr. Shethna has argued that when the complaint is disclosed before the Traping Officer how that panchas are called by him. He has further contended that at around 4:30 FIR was registered. He has also read the contents of Ex.23 and date and contended that panchas are selected witnesses and they are not trustworthy and reliable and therefore, their evidence cannot be considered. He has further contended that when prima-facie it is proved beyond reasonable doubt that the learned Judge has committed grave error then the judgment and order of the learned Judge is required to be quashed and set aside. 10. As against this, Mr. He has further contended that when prima-facie it is proved beyond reasonable doubt that the learned Judge has committed grave error then the judgment and order of the learned Judge is required to be quashed and set aside. 10. As against this, Mr. Jani, learned APP appearing for the respondent - State has supported the judgment and order passed by the learned Special Judge. He has contended that the learned Judge has not committed any error in holding the appellant guilty of the charges levelled against him. He has contended that looking to the evidence of the complainant, Panch witness and the Trapping Officer, the demand, recovery and acceptance by the accused is proved and, therefore, no interference is called for by this Court. He has contended that the learned Special Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. He has read the oral version of PW No.1 - Vinodkumar Laxmanbhai Patel Ex.11 and has also read the complaint Ex.22 and contended that from the contents of the complaint Ex.22 demand which is made by the present appellant is proved through oral version of the complainant PW No.1 at Ex.11. He has further contended that even from the cross-examination of this complainant no animosity is proved. He has contended that in the present case looking to the place of trap and trap amount which is accepted by the present appellant-accused proves his conduct. 11. Mr. Jani has contended that from the contents of panchnama Ex.13 and oral evidence of the PW No.2 Mayankbhai Ex.123, the contents of panchnama Ex.13 is proved beyond reasonable doubt through his oral version. He has further contended that PW No.2 is independent witness and a public servant. When the public servant states something on oath then it cannot be discarded only due to some contradiction which has come during the cross-examination. 12. Mr. Jani has read seizure list exh. 14 and contended that second copy of the seizure list is signed by the present appellant and it is not denied by the present appellant that the said recovery muddamal shown at Ex.14 is not recovered from him. He has further contended that from the oral version of the Traping Officer PW No.3 Ex.21 - Police Inspector, ACB, Vadodara Jagmalbhai Govindbhai Chauda, marks of anthracene powder are found from the fingers, thumb and tips. He has further contended that from the oral version of the Traping Officer PW No.3 Ex.21 - Police Inspector, ACB, Vadodara Jagmalbhai Govindbhai Chauda, marks of anthracene powder are found from the fingers, thumb and tips. It is the duty of the present appellant-accused to explain that how enthracene power is found on his fingers, thumb and finger tips. 13. He has read further statement of the accused recorded under Section 313 of the Criminal Procedure Code and contended that presumption is required to be drawn against the accused under Section 20 of the P.C. Act. It is his duty to rebut the prosecution case. Mr. Jani has contended that from reading of the statement of the accused recorded under Section 313, presumption is not rebutted by the present appellant. He has further read the oral version of the Traping Officer and contended that recovery of the muddamal from the possession of the present appellant is proved beyond reasonable doubt and even in the cross-examination also prosecution has failed to prove his defence version. In connection with that argument made by Mr. Shethna regarding sanction and sanctioning authority evidence Mr. Jani has read the oral version of the PW No.5 - Chandulal Ex.27 and contended that this witness has disclosed in his oral evidence that sufficient material was produced before him and he has verified the papers and the evidence and then sanction Ex.28 was given. He has contended that only due to minor contradiction in the evidence, the case of the prosecution cannot be said to be fatal. He has contended that the learned Judge has considered the oral as well as documentary evidence and then with a proper care and caution which is taken by him after proper perusal of the evidence of the prosecution present appellant is convicted and therefore, the order of the conviction passed by the learned Judge is required to be confirmed. 14. I have heard the learned counsel for the respective parties and perused the papers produced before me. I have also considered the submissions advanced by the learned counsel for the rival parties. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of the prosecution witness-complainant and also the charge framed against the appellant. I have also considered the submissions advanced by the learned counsel for the rival parties. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of the prosecution witness-complainant and also the charge framed against the appellant. It is pertinent to note that in corruption cases four things are required to be appreciated, viz. (I) initial demand, (ii) second demand to be made in presence of Panch, (iii) voluntary acceptance and (iv) recovery of amount. 15. I have perused the charge Ex.25 and then I have minutely gone through the evidence of the PW No.1 complainant and contents of the complaint Ex.22. The allegations made against the present appellant at Ex.25 are proved through oral evidence of the PW No.1 at Ex.11. It is established beyond reasonable doubt from the oral version of the present complainant PW No.1 that the present appellant has demanded illegal gratification and even that amount is accepted by him. I have perused the oral dialogue which took place between the appellant and the complainant. Even from that evidence also it is the duty of the appellant to make proper cross-examination regarding the demand and acceptance, but in the result, I have found that even from the cross-examination also the present appellant has failed to prove his defence version beyond reasonable doubt. Panch witness who is examined as PW No.2 - Mayankbhai at Ex.12 is an independent witness. As per arguments of Mr. Shethna P.W. no.2 panch witness is a selected panch and looking to the date on which he was called creates some doubt. I have perused the horal evidence of this witness and the contents of the panchanama Ex.13. There is some contradiction coming on the record but the same is not material contradiction. As per arguments of Mr. Shethna P.W. no.2 panch witness is a selected panch and looking to the date on which he was called creates some doubt. I have perused the horal evidence of this witness and the contents of the panchanama Ex.13. There is some contradiction coming on the record but the same is not material contradiction. In the case under the Prevention of Corruption Act, demand, acceptance and recovery are main ingredients of the offence and the oral version of the PW No.1 and PW No.2 are totally corroborative piece of evidence which have come on the record through prosecution which shows that in the presence of panchas and the complainant the said demand is repeated by the present appellant-accused and that amount of the trap is accepted by him so far as the question of demand and acceptance is concerned and as such the same are proved beyond reasonable doubt through the oral evidence of the PW No.2 panch. 16. I have gone through the oral evidence of the PW No.3 - Police Inspector, ACB, Vadodara Jagmalbhai Govindbhai Chauda Ex.21. He has explained that how and in which circumstances panchas were called. The specific evidence produced on record through this witness also shows that nothing wrong is committed or no illegality is carried out by this witness. There is sufficient evidence which has come on record through oral version regarding contents of the panchanama and complaint. I have minutely perused the oral evidence of the PW No.1 and PW No.2. I am of the opinion that he is not biased and has no interest to implicate or involve the appellant in a false case. 17. It is argued by Mr.Shethna that investigation is bias and present appellant is wrongly booked in this case, but from oral evidence of the PW No.4, Ramanbhai Laxmanbhai Parmar Ex.26 who is Investigating Officer, I have not found any substance to consider that only with a view to get the target complaint was registered and trap was carried out. This Investigating Officer has also disclosed proper evidence in support of the prosecution case in the form of sanction which is given by the sanctioning authority to the PW No.5, Chandulal Mokshlal Patel, Ex.27. I have perused sanction Ex.28. It is argued by Mr. This Investigating Officer has also disclosed proper evidence in support of the prosecution case in the form of sanction which is given by the sanctioning authority to the PW No.5, Chandulal Mokshlal Patel, Ex.27. I have perused sanction Ex.28. It is argued by Mr. Shethna learned counsel that sanction which is given by the sanctioning authority is given without application of mind but from the oral evidence of this witness PW No.5 it appears that when the material was produced before him from the ACB office of this case he has minutely verified that evidence and then sanction was given for prosecution. 18. As per above discussion it is proved beyond reasonable doubt that alleged demand is proved through oral version of the witnesses as well as documents also. It is established law that the ordinary presumption is that a witness speaking on oath is truthful unless and until he is shown to be untrustworthy and unreliable from any particular respect. 19. As I have observed above that PW No.2 is independent witness and his oral evidence is totally corroborated with the contents of the panchanama as well as oral version of the PW No.1. From the cross-examination of this witness also I have not found that PW No.2 is unreliable and untrustworthy and his evidence is not acceptable. As per this observation it is proved that oral evidence of PW No.2 panch is reliable, acceptable and trustworthy so his evidence cannot be discarded. The present case of the prosecution is a case of demand, acceptance and recovery of bribe and all the three ingredients are required to be proved. Similarly from the oral evidence of PW No.1 and PW No.2 demand is proved beyond reasonable doubt and it is accepted by the present appellant and during the panchanama in presence of panchas trap amount is recovered from the possession of the present appellant and even marks of enthracene power are found on the thumb and finger tips of the accused and therefore, main three ingredients are proved beyond reasonable doubt. In the result, I have found that the evidence of the complainant and the panch is trustworthy and reliable. In the result, I have found that the evidence of the complainant and the panch is trustworthy and reliable. In connection with the principle of ipsa loquitur (means the evidence speaks for itself in the circumstances) I have also perused the circumstantial evidence produced on record through oral evidence of the Panch Witness as well as complainant and contents of the panchanama and explanation of present appellant given by him under Section 313 of the Criminal Procedure Code. These circumstances also show that the recovery is made from the present appellant and presence of the enthracene powder is also oestablished beyond reasonable doubt as marks of anthracene power were found from the fingers, hands, tips and bag of the accused. This shows that these circumstances are also in favour of the prosecution case. It is established law that when the demand of illegal gratification is proved then presumption under Section 20 of the Prevention of Corruption Act can come into play and when it is proved beyond reasonable doubt that demand and acceptance are proved then it should be considered that money is accepted by the appellant as a motive and reward. 20. Mr. Shethna has argued that evidence of the panch witness is contradictory. It is an established law that even if there is any contradiction on material point then that is no ground to reject the whole testimony of the witness. In the case of demand and acceptance of illegal gratification, evidence of bribe given in the case has to be scrutinised very carefully. I have scrutinised the oral evidence of PW No.1 and PW No.2 and I have found that the appellant has failed to prove his case beyond reasonable doubt. 21. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. 22. Minor discrepancies on trivial matters do not affect the core of entirety. Irrelevant details which do not in any way corrode the credibility of witness, cannot be labeled as omissions or contradictions. In the case of Brahm Swaroop and Anr. 22. Minor discrepancies on trivial matters do not affect the core of entirety. Irrelevant details which do not in any way corrode the credibility of witness, cannot be labeled as omissions or contradictions. In the case of Brahm Swaroop and Anr. v. State of Uttar Pradesh, reported in (2011) 6 SCC 288 , the Hon'ble Apex Court has considered that minor discrepancies and inconsistencies in depositions of witnesses which do not affect core of prosecution case, may not prompt court to reject evidence in its entirety. 23. In the case of Subramanian Swamy v. Manmohan Singh and Anr., reported in (2012) 3 SCC 64 (para-50), Hon'ble Apex Court has observed that Competent Authority is required to see is whether material placed by the complainant or the Investigating Agency prima-facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. 24. In view of the above, I am in full agreement with the judgment and reasonings given by the learned Judge. 25. For the foregoing reasons, present appeal is dismissed. The judgment and order of conviction and sentence dated 8.11.2011 passed by the learned Second Extra Assistant Sessions Judge and Special Judge (ACB Case), Bharuch, in Special A.C.B. Case No.4 of 1998, is hereby confirmed. The appellant is on bail. His bail bond shall stand cancelled. The appellant-accused is directed to surrender himself before the Jail Authority within a period of four weeks from today to undergo remaining sentence, if any, failing which the Court concerned is directed to issue non-bailable warrant against the appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal dismissed.