Judgment:
B. Lamare, J.
1. Heard Mr. K. Agarwal and Mr. M.B. Baruah, learned counsel for the Appellant and Mr. D.K. Das, learned standing counsel for CBI.
2. The case of the prosecution in brief is that, accused No. 1 N.K. Dutta Bhowmik while functioning as Branch Manager, Union Bank of India (UBI), Jorhat branch during 1982-83 entered into criminal conspiracy with accused No. 2, Subhas Chandra Sharma, Nawal Kishore Jain (since deceased) and accused No. 3, Raj Singh Jain. Accused N.K. Jain and Raj Singh Jain were partners of M/s. Nawal Enterprises (NE) and M/s. Karbi Anglong Tea & Industries (KATI). Accused No. 2, Subhas Ch. Sharma was the Manager of South Eastern Road Carriers (SERC) Dibrugarh. M/s. NE enjoyed the facilities of documentary bill purchase upto the limit of Rs. 4.50 lacs sanctioned by Zonal Office of UBI. M/s. KATI do not have such facility of advance through documentary bill purchase. According to Bank Rules, documentary bill purchase provided for purchase of consignee copy of motor lorry receipts (MLR) of the Transport company approved by the Indian Bank Association covering despatch of goods. MLR are to be issued in coarse of the business transactions.
3. The accused No. 1 N.K. Dutta, during the period of 19.11.1982 to 15.12.1982 purchased 25 numbers of bills of M/s. NE cost at Rs. 95,472 for each bill. He also purchased bills of M/s. KATI of Rs. 47,756. All the bills relates to MLR showing despatch of materials by late N.K. Jain and accused R. S. Jain on behalf of M/s. NE and M/s. KATI.
4. No materials were booked for these consignments from Dibrugarh to Bombay and accused No. 2, Subhas Ch. Sharma issued these MLR receipts in the name of M/s. SERC and also in the name of non-existing firm M/s. Swastika Transport Agency (STA), Dibrugarh without receiving any materials from the concerned firm. Accused No. 1, N.K. Dutta, without verifying the genuineness of the MLRs as provided under the Bank Rules has honoured the MLR. The accused No. 1, N.K. Dutta also purchased 24 such bills worth Rs. 22,43,592 during the period from 19.11.1982 to 13.12.1982 from M/s. NE and M/s. KATI and the entire amount was paid to them and the same is yet to be recovered from them.
5. On the basis of the above allegation, charge sheet was framed against the accused persons under Section 120B/468/477A IPC and also Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. In this instant case, we are concerned only with the charges framed against the accused/appellant Subhas Chandra Sharma. The following charges were framed against S. C. Sharma :
''Firstly - That you, Subhas Chandra Sharma, during the year 1982-83 at Jorhat/Dibrugarh entered into criminal conspiracy with your co-accused Raj Singh Jain and Nawal Kishore Jain since deceased, the partners of M/s. Nawal Enterprises, Jorhat and M/s. Karbi Anglong Tea Industries and with your co-accused N.K. Dutta Bhowmik while he was posted and functioning during the said period as Branch Manager of Union Bank of India, Jorhat and agreed to do or caused to be done illegal acts, to wit, to commit or caused to be committed the offence of cheating, criminal misconduct and forgery by forging certain documents such as Motor Lorry receipts/despatch and consignment notes of following descriptions of South Eastern Road Carriers, a non-approved Transport Operator of the Union Bank of India with No. 2809 dated 2.2.1983, No. 2747 dated 10.11.1982, No. 2746 dated 16.11.1982, No. 2748 dated 16.11.1982, No. 2749 dated 17.1.1982, and M/s. Swastika Transport Agency, Dibrugarh, which is a non-existent firm with No. 1171 dated 5.12.1982, 1174 and 7.12.1982, No. 1172 dated 5.12.1982, No. 1176 dated 9.12.1982, No. 1173 dated 6.12.1982, No. 1175 dated 8.12.1982, No. 1165 dated 29.11.1982, No. 1162 dated 29.11.1982, No. 1167 dated 1.12.1982, No. 1166 dated 1.12.1982, No. 1165 dated 30.11.1982, No. 1164 dated 30.11.1982, No. 1153 dated 20.11.1982, No. 1152 dated 19.11.1982, No. 1151 dated 18.11.1982, No. 1149 dated 17.11.1982, No. 1148 dated 17.11.1982 and the said offences have been committed in pursuance of criminal conspiracy and you thereby committed an offence punishable Under Section 120B of the Indian Penal Code and within the cognizance of this Court;
Secondly - That you, during the year 1982-83 at Jorhat or at Dibrugarh in pursuance of the said criminal conspirary forged certain documents, to wit, Motor Lorry receipts/despatch and consignment notes with No. 2890 dated 2.2.1985, No. 2747 dated 16.1.1982, No. 2746 dated 16.11.1982, No. 2748 dated 16.11.1982, No. 2749 dated 17.11.1982 of South Eastern Road Carriers, Dibrugarh a non-approved Transport Operator of Union Bank of India and Motor Lorry receipt/despatch and consignment notes bearing No. 1171 dated 5.12.1982, No. 1171 dated 5.12.1982, No. 1174 dated 7.12.1982, No. 1172 dated 5.12.1982, No. 1176 dated 9.12.1982, No. 1175 dated 8.12.1982, No. 1173 dated 6.12.1982, No. 1163 dated 29.11.1992. No. 1162 dated 29.11.1982, No. 1176 dated 1.12.1982, No. 1166 dated 1.12.1982, No. 1165 dated 30.11.1982, No. 1164 dated 30.11.1982, No. 1153 dated 20.11.1982, No. 1152 dated 19.11.1982, No. 1151 dated 18.11.1982, No. 1149 dated 17.11.1982, No. 1148 dated 17.11.1982 of M/s. Swastika Transport Agency, Dibrugarh, which is a non-existent firm, intending that those will be used for the purpose of cheating, and that you thereby committed an offence punishable under Section 468 of the IPC and within the cognizance of this court; And I hereby direct that you be tried on these charges.'
6. The prosecution has examined 29 witnesses. No evidence was adduced on behalf of the defence. The statement of the accused under Section 313 Cr.PC was duly recorded.
7. Now, I propose to discuss the evidence on records insofar as it relates to the present accused/appellant.
8. PW 4 Naba Kumar Bhattacharjee. He was the Accountant in the Punjab National Bank, Dibrugarh at the relevant time. He stated that by Ext. 75, Subhas Ch. Sharma applied for opening of current account in the name of Swastika Transport Agency of which he was the sole proprietor. As Subhas Ch. Sharma already had a saving bank account, he requires no introduction by any account holder and so he himself introduced and Ext. 75(2) is the signature and name in block letters of Subhas Ch, Sharma by way of introducing himself. He also stated that the earlier account of Subhas Ch. Sharma should have been noted in Ext. 75 but it has not been done and he was allowed to open current account No. 1452 on 29.1.1982. This witness however, stated that he did not remember that Subhas Ch. Sharma had signed on Exts. 74 and 75 in his presence. He also stated that he had no personal knowledge about the existence or non-existence of STA at Mankatta Road, Dibrugarh. In the cross-examination, he stated that, I personally do not know Subhas Chendra Sharma, and I had no occasion to correspond with him and I cannot identify his writing. This witness therefore, does not help the prosecution in any manner.
9. PW 5, Manik Bhuyan. He was Licence Inspector in the Dibrugarh Municipal Board. He stated that in Ext. 22, the M/s. STA was not registered with the Board. In his cross-examination, he stated that Trade entry Licence Register is maintained for the applicant for licence, but this register was not seized by CBI. He had also not brought the register. Therefore, from the evidence of this witness the prosecution case that, M/s. STA was non-existence is not proved.
10. PW 7, N.P. Salva Ika. He stated that in Ext. 74, five speciment signature of depositor M/s. Swastika Transport Agency in current Account No. 1432 was obtained. The signatures were attested by PW 4 N.K. Bhattacharjee. He also stated that he cannot identify the signature of N.K. Bhattacharjee. In his cross-examination, he stated that the signature of the proprietor of M/s. STA was not put in his presence nor do he personally know the person who put the signature in Ext. 74. The evidence of this witness also does not help the prosecution.
11. PW 8, Ranjit Kumar Pal. He was the Postman at Dibrugarh Head Post Office. He stated that Ext. 76 was a registered letter given to him in the address of M/s. Swastika Transport Agency, Mankatta Road, Dibrugarh. As there was no such firm in Mankatta Road, he returned the letter with a remark of endorsement 'Not known'. He also stated that he had consulted the relevant inspection book of Dibrugarh Head Post Office and on' his checking he was informed that there was no firm under the name of Swastika Transport Agency in Mankatta Road. In his cross-examination, he stated that, it is not possible to tell the number of Transport Companies in 1981-82 in my area. He did not know if any party carry business without Signboard. The names of those who do not inform the Municipal board are not included in the Inspection Book or in the Instruction Book. The Instruction Book is in Dibrugarh Post Office, and the same was not seized from him. The evidence of this witness also does not help the prosecution to prove that the STA is not in existence.
12. PW 9, Shekhar Chakravarty. He was the Head Postman in the Dibrugarh Head Post Office. He stated that there is no Mankatta road in Dibrugarh town. Ext. 76 is the registered letter address of M/s. STA, Mankatta Road, Dibrugarh. He also stated that he enquired the address of M/s. Swastika Transport Agency, Mankatta road, Dibrugarh, but he did not find any such firm as there was no such firm in existence. He stated that the Instruction Book containing the list of firms of a beat is maintained in the Dibrugarh Head Post Office. In the cross-examination, he stated that Mankatta road beat is about 8 or 9 square kilometres in area. There are many Transport Agencies in the beat. Some firms informs about themselves to the post office and their addresses are included in the Instruction Book. The Instruction Book was not shown to him. He also stated that Mankatta road was divided into two postal beats. He was posted in Beat No. 2. He also stated that I did not find M/s. STA in my beat. I did not know if this firm is in other beat. The evidence from this witness does not help the prosecution regarding the non-existence of M/s. STA.
13. PW 10, J.M. Hirewat. He was the Divisional Manager of National Insurance Company, Jorhat division at the relevant time. The evidence of this witness do not implicate the accused/appellant in any way.
14. PW 11, P.K.G. Shroff. He was the Deputy General Manager, Personal Union Bank of India in January 1986 at Head Office, Bombay. The evidence of this witness also do not implicate the accused/appellant in any way.
15. PW 12, Bisnu Nandi. He was the Branch Manager, Union Bank of India, Jorhat Branch from June 1978 to 18.10.1982. This witness only stated that he had handed over the charge of Branch Manager, UBI to accused N.K. Dutta Bhowmik and identified the documents pertaining to such handing and taking over of charge. The evidence of this witness is in no way connected with the present accused/appellant.
16. PW 13, D.D. Bhagwagar. He was the Deputy Manager, Central Officer, Service Branch, Union Bank of India, Bombay. In the evidence of this witness, there is nothing to implicate the accused/appellant.
17. PW 14, B.K. Kaithya. He was the Superintendent, Regional Office, Union Bank of India, Gauhati since September 1981 to November 1984. This witness only explained about the procedure and delegation of authority in carrying the transactions in the bank and said nothing about the present accused/appellant.
18. PW 15, Dwarkadas Bhoot. He was the proprietor of South Eastern Road Carriers (SERC) which is a transport agency and it was started in 1977. He stated that in 1982-83, SERC has branches in Gauhati, Jorhat, Tinsukia, Dibrugarh and Silchar. Accused Subhas Chandra Sharma was the Branch manager of South Eastern Road Carrier of Dibrugarh branch and he left SERC in 1983. He do not know the existence of Transport Agency by the name of M/s. Swastika Transport Agency at Guwahati or Dibrugarh. Six copies of consignment note are prepared, first copy is/or consigner, second copy is for the consignee, third copy is the lorry copy, fourth is for the head office, fifth is for Calcutta Office and the sixth is for Branch Office. He also stated that Ext. 5 the consignment note was pre-pared in the handwriting of Subhas Ch. Sharma and I can identify the writing and Ext. 5(1) is the signature of Subhas Ch. Sharma. But this witness later on says that Ext. 5(1) may be or may not be the signature of Subhas Ch. Sharma. He also stated that Ext. 5 is the consignment note of Dibrugarh as it was shown to have been issued from Dibrugarh branch of SERC. But the Ext. 5 is not of SERC. He also stated that Ext. 109(1) is the fourth copy of the consignment note No. DBG 2747 of SERC and Ext. 109(1) is despatched from Dibrugarh to Guwahati and it is dated 20.11.1982. Ext. 109(1) is a copy of Ext. 5 the consignment note. Ext, 109 is of SERC but Ext. 5 is not of SERC as there is no copy of Ext. 5 with SERC. Ext. 109 is not prepared by Subhas Ch. Sharma but by another staff member of SERC at Dibrugarh. This witness stated that Ext. 8 is the copy of the consignment note and the same is prepared in the handwriting of Subhas Ch. Sharma, it is dated 15.11.1982 from Dibrugarh to Thana. But he stated that Ext. 109(2) is not a copy of Ext. 8, Ext. 8 is shown to be of SERC, but there is no copy of Ext. 9 with SERC. He also stated that Ext. 9 is the hand writing of Subhas Ch. Sharma and he can identify Ext. 109(3) the fourth carbon copy of the consignment note, but Ext. 109(3) is not a copy of Ext. 9. Ext. 9 is not of SERC as there is no copy of Ext. 9 with SERC. Ext. 14 is the first copy of consignment note No. 2749 dated 17.11.1982 booked from Dibrugarh to Thana. Ext. 14 is prepared in handwriting of Subhas Ch. Sharma, Ext. 109(4) is the fourth carbon copy of the consignment note No. 2749 from Dibrugarh to Guwahati. Ext. 109(4) is not a copy of Ext. 14 as there is no copy with SERC. He also stated that Ext. 109(2), 109(3) and 109(4) are not prepared under the handwriting of Subhas Ch. Sharma.
In the cross-examination, he stated as follows :
'I have seen challan No. 994 lying in Ext. 113. The floods mentioned in this consignment note numbering four must have been, sent to the destination as mentioned in the challan. Ext. USA is the copy of challan No. 994. The copy of consignment note Nos. 2818, 2820, 2825 and 2915 are available in Ext. 109. The description and particulars given in consignment note No. 2818 does not tally with challan Ext. 115A. Similarly, the description and particulars given in above stated other consignment numbers does not tally. I do not remember whether we have written to the Dibrugarh office regarding above irregularities without looking into the records. In case, we have written, copies will be available in our office.
Cash book are maintained at our Branches in Assam. The cash book will
be available now at our Calcutta Office. If they are demanded or asked by the Court will be sent. I do not know about Swastika Transport Agency. I heard about the same after investigation of this case. Without looking into the cash book I cannot say whether the name of Swastika Transport Agency is mentioned in our Cash book. Without looking into the records. I also cannot deny such mention. I do not know whether said Swastika Transport Agency had any accounts in the Punjab National Bank. It is not a fact that an account was opened by Swastika Transport Agency at Punjab National Bank on my instruction and that this was done to obtain tax benefit. It is not a fact that some cheques of M/s. ACRC you have deposited in the account of Swastik Transport Agency at Punjab National Bank. Challan No. 994 Ext. 113A is dated 12.5.1983 but there is another challan having serial No. 994 dated 3.5.1983 which is Ext. 113B. There might have been some mistake committed by the Dibrugarh Branch. The description and particulars given in Ext. 113B tallies with the consignments. It is not a fact that the accused did all the things on my instruction only.'
19. From the above evidence of this witness in the cross examination, it shows that the statement made by him were not supported by the documents as he stated that I do not remember whether we have written to Dibrugarh Office about the irregularities without looking into the records. The cash book of which entries were made was also not exhibited nor produced before this Court.
20. PW 16, Ababi Kumar Thakuri. He was the Advocate at Gviwahati. He only sent reply to the pleaders notice issued by another advocate Aswini Thakur of Jorhat.
21. PW 17, Bimal Prakash Singhal. He was the Asatt. Superintendent/ Deputy Manager of Union Bank of India at Bombay from September, 1982 to March 1984. In his evidence he has not stated anything about the present accused/appellant. So also in the evidence of PW 18, Dipak Kumar Roy who was Cashier-cum-clerk of Union Bank of India, Jorhat branch did not implicate the accused/appellant.
22. PW 19, P.H. Paul, He was serving as an Officer, Advances Department, Union Bank of India, Zonal Office, Calcutta in 1985.
23. PW 20, S.B. Mehra. He is the Regional Manager in the Union Bank of India, Guwahati for the period from July 1981 to May 1986 and PW 21 Manoj Kumar Das was the Asstt. Superintendent, UBI Zonal Office, Calcutta. All these witnesses did not say anything about the involvement of the accused/appellant in the case.
24. PW 22, Samir Krishna Dutta. He was working as Branch Manager, UBI, Jorhat with effect from 29.12.1982. He only stated about irregularities in the account of Nawal Enterprises and Karbi Anglong Tea Industries, but did not say anything about the accused/ appellant.
25. PW 25, A.S. Bhattacharjee was the Chief Manager, Zonal Office of UBI, Calcutta during May 1985. In his evidence he stated only about the accused late N.K. Jain and nothing else.
26. PW 24, Debashis Mazumdar was the Superintendent, Zonal Vigilance Cell, UBI, Calcutta. He only stated that a complaint was filed against the officials of the Jorhat branch, UBI, namely, B. Nandi and N.K. Dutta Bhowmik and enquiry was made by one M.K. Das and P.K. Paul. He also stated that Indian Bank Association has approved list of Transporters and the Transporters are required to sign endorsements regarding use of the lorry receipt for particular purpose of the bank. In Ext. 57, 5, 8, 9, 14, 15, 18, 19, 20, 21, 22, 25, 27, 38, 39, 40, 41, 42. There are no endorsements as required by the bank. In cross-examination, he stated that Exts. 64 and 65 are the guidelines. The Bank Officials are required to follow the IBA procedures. He also stated that the IBA procedure includes the requirements of endorsement in MLRs, but in Exts. 64 and 65 there is no direct mention regarding giving of endorsement by the transporters. The evidence of this witness also does not help the prosecution as regards the accused/appellant.
27. PW 25, B.D. Savarna was the Officer in the Bombay Samasar Marg Branch of the Union Bank of India, (Bill Department) from June 1985 to 1986. In his evidence, he had stated that in his department bills from various branches of UBI were collected. The bills were scrutinised from the department, and he explained the procedures for scrutiny of the bills. This witness has not implicated the accused/ appellant in his evidence.
28. PW 26, N.W. Karmakar served as Audit Inspector in the Central Office (Audit and Inspection Department) of the Union Bank of India, Bombay. He stated that he was a member of the Inspection team and he explained about the functioning of Jorhat Branch of the UBI and submitted the report thereafter.
29. PW 27 was Pradip Christopher. He was the Investigating Officer of the case. After he took over the Investigation from the previous Investigating Officer Mr. J.S. Choudhury, he took over the investigation at the last stage and submitted his report.
30. PW 29, J.S. Choudhury. He was the Investigating Officer in this case and after the case was entrusted to him, he collected all the relevant records, documents and recorded the statement of witnesses and examined the suspects. He did not state anything about the involvement of the accused/appellant in the case.
31. PW 28 was D.D. Goel. He was the examiner of question documents and stated that he had examined the question writings marked as Ext. 57; 37, 38, 39, 40, 41, 42, 197, 198, 199, 200, 201, 202, 18, 19, 20, 21,
22, 23, 05, 08, 09, 14 and compared with standard writings from the specimen writings marked as Section 15 to 133 on Ext. 117 and the contemporaneous writings marked as; A1 to A12 on Ext. 109 and came to the conclusion that the above mentioned question and the standard writings were all written by one and the same person, i.e., Subhash Ch. Sharma.
32. From the scrutiny of the evidences on records it shows that the only evidence against the accused/appellant is the hand writing of the accused/appellant in the MLRs to the extent that the MLRs were written in his hand writing. There is no evidence that led by the prosecution to show that the MLRs were signed by the accused/appellant. Therefore, the writing of MLRs by the accused/appellant without having proof of his signature in the MLRs cannot be held that the accused/appellant is liable for the offence charged. There is also no substantive evidence to collaborate the evidence of this witness.
33. The five-member Bench of the Apex Court in the case of Shashi Kumar Banerjee and Ors., appellants v. Subodh Kumar Banerjee, Respondent, reported in AIR 1964 SC 529 in para 21 of the Judgment observed as follows :
'Besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it.'
34. Following the above observation made by the Apex Court in another judgment reported in 1977 SC 1091, Magan Bihari Lal, Appellant v. The State of Punjab, Respondent, the Apex Court in para 7 of the judgment has held as follows :
'We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law, It was held by this Court in Ram Chandra v. State of U.P., AIR 1957 SC 581 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa, AIR 1965 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 2967 SC 1326 and if uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial.'
35. In yet another case reported in AIR 1992 SC 2100 State of Maharashtra, Complainant v. Sukhdeo Singh and Anr., Respondents, the Apex Court in paras 32 and 55 of judgment has held as follows :
'52. It was then submitted, relying on Section 73 of the Evidence Act, that we should compare the disputed material with the specimen/admitted material on record and reach our own conclusion. There is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded, with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos. 1 and 2. Although the section specifically empowers the Court to compare the disputed writings with the specimen/admitted writings shown to be genuine, paudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.
33. From the above discussion of the evidence it is clear that the prosecution's effort to provide the missing links in the chain by seeking to establish the identity of the participants to the alleged conspiracy through the handwriting expert PW 120 has miserably failed. We, therefore, agree with the conclusion of the learned trial Judge in this behalf.'
36. Coming to the case in hand, the only evidence against the petitioner in his handwriting in the MLRs (signature excluded) as appearing from the evidence of PW 28. There is no substantial evidence to corroborate the evidence of this PW. Therefore, the liability cannot be fastened against the accused/appellant merely on the evidence and of handwriting expert. Needless to say that there is no evidence adduced by the prosecution that the MLRs were signed by the accused/appellant.
37. For the reasons aforesaid, I am of the opinion that this appeal succeeds and accordingly it is allowed. Consequently, the judgment dated 25.1.1995 passed by the learned Special Judge, Guwahati Assam in Special case No. 5/1986 in respect of the accused/appellant Subhas Chandra Sharma is hereby set aside and quashed, and the sentence of imprisonment for one year and a fine of Rs. 5,000 are also set aside and quashed.
The appeal is allowed and disposed of.