Saturday, August 23, 2014

Cheque bouncing: SC verdict on jurisdiction

NI Act, Ss.138 and 142 and Cr.P.C., Ss.177 and 179 – Return of Cheque by drawee Bank alone constitute commission of offence - Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured - We need to remind ourselves that an avalanche of cases involving dishonour of cheques has come upon the Magistracy of this country. The number of such cases as of October 2008 were estimated to be more than 38 lakhs by the Law Commission of India in its 213th Report - Reliance is often placed on Bhaskaran case to justify institution of such cases far away from where the transaction forming basis of the dishonoured cheque had taken place - This procedure is more often than not intended to use such oppressive litigation to achieve the collateral purpose of extracting money from the accused by denying him a fair opportunity to contest the claim by dragging him to a distant place - Even so, experience has shown that the view taken in Bhaskaran case permitting prosecution at any one of the five different places indicated therein - The unilateral acts of a complainant in presenting a cheque at a place of his choice or issuing a notice for payment of the dishonoured amount cannot in our view arm the complainant with the power to choose the place of trial.  (DOJ: 01-08-2014) (Dashrath Rupsingh Rathod Vs. State of Maharashtra) (T.S.Thakur, Vikramajit Sen and C.Nagappan, JJ) (2014 (4) CTC 666, SC, FB)

Also read the FULL Judgment 



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Cabinet approves changes in NI Act


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Cheque bouncing: SC settles law on where to file a complaint

BS Reporter  |  New Delhi  August 2, 2014

Bounced cheque must only be filed at the place where the bank dishonoured it

The Supreme Court (SC) ruled on Friday that a complaint about a bounced cheque must only be filed at the place where the bank dishonoured it, settling doubts raised by its own earlier conflicting judgments on the jurisdiction of a magistrate.

Some judgments had specified the place where the cheque was issued, others from where the notice of dishonour was sent and still others the place of receipt. Owing to this confusion in law, the matter was referred to a larger bench of the SC.

A three-judge bench headed by T S Thakur unanimously laid down that the place of dishonour is the right place to file a complaint. However, to avoid inconvenience to persons already prosecuting such cases, the new rule is to come into force only with respect to cases in the future. Those in which trials have begun will remain in the same courts.

The judgment was delivered on a large number of appeals, including those moved by Videocon Industries and Kitchen Appliances Ltd, which raised the question of jurisdiction of the magistrate who can try cases under Section 138 of the Negotiable Instruments Act. According to this provision, it is an offence to issue cheques without a sufficient balance in the account, if the payment is made to discharge a debt or liability. If the amount is not paid within two weeks, the payee can file a criminal complaint.

This is the second major ruling in recent months dealing with this Act. There are a little more than four million cheque-bounce cases at courts. In April, another bench issued a series of guidelines, including issuance of summons through e-mails and completion of evidence within three months.

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Dealing with cheque bouncing cases

Indu Bhan | Updated: Aug 06 2014, 04:28 IST

Supreme Court has held that a cheque bounce complaint must be filed only at a place where the bank has dishonoured the cheque.Supreme Court has held that a cheque bounce complaint must be filed only at a place where the bank has dishonoured the cheque.

Settling the doubts raised by its earlier conflicting judgments, the Supreme Court has held that a cheque bounce complaint must be filed only at a place where the bank has dishonoured the cheque and the place cannot be of a complainant's "choosing".

"The unilateral acts of a complainant in presenting a cheque at a place of his choice or issuing a notice for payment of the dishonoured amount cannot arm the complainant with the power to choose the place of trial," it said.

Laying down the law in a large number of appeals led by Dashrath Rupsingh Rathod vs State of Maharashtra, a larger bench of three-judge unanimously held that the place of dishonour is the right place to file a complaint. However, to avoid inconvenience and hardship to litigants whose cases are pending at present, the new rule will have only prospective pertinence, i.e. applicability to complaints that may be filed after this judgment.

"If presentation of the cheque referred to in Section 138 means presentation to the drawee bank, there is no gainsaying that dishonour would be localised and confined to the place where the drawee bank is situated," the bench said.

There were conflicting views on the jurisdiction of the magistrate who can try cases under Section 138 of the Negotiable Instruments Act, so the matter was referred to a larger bench, which overruled its earlier ruling in the case, K Bhaskaran vs Sankaran Vaidhyan Balan (1999) that allowed multiple venues for filing of a complaint.

Stating that the liberal approach preferred in Bhaskaran called for a stricter interpretation of the statute, the judges felt that the Bhaskaran's judgment ran counter to its preference for simplifying the law. "Courts are enjoined to interpret the law so as to eradicate ambiguity or nebulousness, and to ensure that legal proceedings are not used as a device for harassment, even of an apparent transgressor of the law. Law's endeavour is to bring the culprit to book and to provide succour for the aggrieved party but not to harass the former through vexatious proceedings. Therefore, precision and exactitude are necessary especially where the location of a litigation is concerned," the apex court emphasised.

Accepting the 'significant' approach of the judges in the case, Harman Electronics Pvt Ltd vs National Panasonic India (2009), the top court said the ruling highlighted the reality that Section 138 is being rampantly misused so far as territorial jurisdiction for trial of the complaint is concerned … "Harman, in fact, duly heeds the absurd and stressful situation, fast becoming common-place where several cheques signed by the same drawer are presented for encashment and requisite notices of demand are also despatched from different places."

This is the second major ruling in recent months dealing with this Act. In April, another bench issued guidelines, including issuance of summons through e-mails and completion of evidence within three months. Such clarities in law have become significant as cheque bounce cases are choking the criminal justice system at the magistrate's level. As per a Law Commission report, so far there are 40 lakh cases pending in four metro cities. More than 5.5 lakh such cases are pending in criminal courts in Delhi alone. The position is no different in other cities where large number of complaints are filed under Section 138 not necessarily because the offence is committed in such cities but because multinational and other companies and commercial entities and agencies choose these places for filing the complaints for no better reason than the fact that notices demanding payment of cheque amounts were issued from such cities or the cheques were deposited for collection in their banks in those cities. This procedure is, more often than not, intended to use such oppressive litigation to achieve the collateral purpose of extracting money from the accused by denying him a fair opportunity to contest the claim by dragging him to a distant place, the judgment noted.

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To fast-track cheque-bounce cases, SC issues guidelines

Written by Utkarsh Anand | New Delhi | April 26, 2014 1:51 AM

The court said that summons should apprise an accused that he could show up in the court and compound the offence on the same day.

With more than 40 lakh cheque-bounce cases choking the justice delivery system in the country, the Supreme Court has issued slew of guidelines, including issuance of summons through e-mails and completion of evidence within three months, to prevent further piling up.

A bench of Justices K S Radhakrishnan and Vikramjit Sen laid down guidelines to be uniformly followed by all magisterial courts dealing with cheque-bounce cases under pertinent provisions of the Negotiable Instruments Act for a "speedy and expeditious disposal".

Directing for a day-to-day trial, the court said that a magistrate shall issue summons on the same day he receives a complaint, provided documents are in order. It held that a magistrate need not call a complainant twice for recording his statement, once at pre-summoning stage and another after issuance of summons, and taking an appropriate affidavit from him should suffice.

The summons should be issued immediately by post as well through e-mails. The court said that summons should apprise an accused that he could show up in the court and compound the offence on the same day.

"Once the court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is not willing to pay, court may fix up the case at an early date and ensure day-to-day trial," it said.

At the stage of recording of evidence, the bench said, the court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant is conducted within three months of assigning the case. "The court has option of accepting affidavits of the witnesses, instead of examining them in court," it added.

The order came on a petition by the Indian Banks Association, which is the representative body of banks in India with over 174 banks and financial institutions as its members. Its counsel Lalit Bhasin had asserted the need to have uniform practice across courts in the country to ensure cases do not drag in courts on account of unnecessary and unwarranted procedural delays.

What the court says

* No need for complainant to record his statements in court more than once; affidavit can be filed.
* Summons to be issued to the accused on the same day the magistrate receives the complaint.
* Summons to be issued also through e-mails, besides normal post.
* Accused can offer a settlement the day he shows up in court and the magistrate shall dispose of the case.
* All evidence to be recorded within three months and verdict to be delivered shortly.
* Magistrate can receive affidavits from the witnesses too, dispensing their personal presence.

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Recovering cheque-bounce money to get more tedious

Dhananjay Mahapatra, TNN | Aug 9, 2014, 02.30AM IST

The Supreme Court ruled that the case of bounced cheque has to be initiated at the place where the branch of the bank on which the cheque was drawn is located.

NEW DELHI: Recovering money if a cheque bounces will now be a lot more tedious and costly. 

In a landmark judgment, the Supreme Court has changed the ground rule under Section 138 of Negotiable Instruments Act to prosecute a person who had presented the cheque which bounced for insufficiency of funds. 

Earlier, a case under Section 138 could be initiated by the holder of the cheque at his place of business or residence. But, a bench of justices TS Thakur, Vikramjit Sen and C Nagappan ruled that the case has to be initiated at the place where the branch of the bank on which the cheque was drawn is located. 

This means, if a man from Delhi gave a cheque drawn on a Delhi bank for buying something in Chennai and it bounced for insufficiency of funds, then the aggrieved person will have to travel all the way from Chennai to Delhi to initiate prosecution under Section 138.

TOI illustralion

And the judgment would apply retrospectively. This means, lakhs of cases pending in various courts across the country would witness a interstate transfer of cheque bouncing cases. 

Writing the judgment for the 3-judge bench, Justice Sen said: "We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country." However, the court said that in those cases where recording of evidence has started after issuance of summons to the accused, would continue to be tried at the place they were instituted. 

"To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured," the bench said. 

The bench said: "In this analysis, we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located." 

"An interpretation should not be imparted to Section 138 which will render it as a device of harassment, that is, by sending notices (about the bouncing of cheque under Section 138) from a place which has no casual connection with the transaction itself, and/or by presenting cheques at any of the banks where the payee may have an account," the bench said. 

"It is also now manifest that traders and businessmen have become reckless and incautious in extending credit where they would heretofore have been extremely hesitant, solely because of the availability of redress by criminal proceedings," the bench said referring to the rapid increase in institution of cases under Section 138 of NI Act after it was made a criminal offence. 

"Today's reality is that every magistracy is inundated with prosecutions under Section 138 of the NI Act, so much so that the burden is becoming unbearable and detrimental to the disposal of other equally pressing litigation," the court said. 

The court said for filing a criminal case under Section 138 NI Act, the holder of the cheque must have to travel to the place where the branch of the bank on which the cheque was drawn is located. In the alternative, he could institute a case under Section 420 (cheating) at the place of his residence or where he ordinarily carries out business. 

"If the payee succeeds in establishing that the inducement for accepting a cheque which subsequently bounced had occurred where he resides or ordinarily transacts business, he will not have to suffer the travails of journeying to the place where the cheque has been dishonoured," it said. 

"All remedies under the IPC and Crpc are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 of NI Act. And of course, he can file a suit for recovery wherever the cause of action arises dependent on his choosing," the court said.

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Cheque bouncing: Supreme Court's verdict on jurisdiction

DUSHYANT K MAHANT | 21/08/2014 11:26 AM |    

Clearing all controversy, the Supreme Court ruled that the jurisdiction of such cases have to be the location where the cheque bounced, meaning the bank of the person, who issued the cheque and not the bank location of the complainant

Prosecuting jurisdiction in a cheque bouncing case has been a highly contested issue since very long. The issue has revolved around the point of determination.

Where would someone file a case for cheque bouncing out of the following venues?

• Location of the bank of Complainant
• Location of bank of issuer
• Location of origin of legal notice
• Where the legal notice was received

In the Dasrath Rupsingh case, a three Judge Bench of the Supreme Court has finally laid the controversy to rest.

By and large, complaints pertaining to cheque bouncing are instituted where the bank of the complainant is. Before the Supreme Court decided the case of Harman Electronics, complainants used to file a large number of cases on the basis of the location of their attorney, not of any bank, who would send the legal notice for a cheque having bounced. The Court noted that the law of cheque bouncing was being misused rampantly. Complaints were filed in Delhi just because lawyers were issuing notices from there, even though the bank of the payer or the payee were outside Delhi.

The Supreme Court has effectively put an end to this harassment at the hands of the Drawee.

Last year, in the Nishant Aggarwal case, the Supreme Court again addressed the prosecuting jurisdiction aspect. A two Judges Bench of the Supreme Court held that the complaint under Section 138 can be filed at the jurisdiction where the bank of the Complainant is situated.

In the Dasrath Rupsingh case, the apex court has cleared the controversy once and for all. The Bench stated that the factor for determining jurisdiction has to be the location where the cheque bounced, meaning thereby, the bank of the person who issued the cheque and not at the place the intimation of dishonour reaches, i.e, bank of the complainant. The Bench further held that the offence under the section shall occur when the cheque is returned unpaid.

The Bench notes that the cheque bouncing law should not be allowed to become a tool for harassment. There had been cases where the complainant would deposit the cheque and/or issue a legal notice from a place that was totally unrelated to the transaction in question-- in a possibe attempt to harass the other party.

The Bench also safeguarded the interests of genuine creditors in such a scenario. A person/ company can insist that the payment shall be made through cheque in question, payable at a particular location convenient to the creditor.

It is also important to note that the remedy under the Negotiable Instruments Act is in addition to the provisions of the Indian Penal Code (IPC) and not as an alternative. Meaning that the case for cheque bouncing will be maintainable only where the bank of the drawee is, but if the creditor can demonstrate that various acts of the transaction took place in another jurisdiction, like his office/ residence, then he can maintain a separate action for fraud, cheating and forgery. Then there is also an option before the Complainant to institute a civil suit for recovery against the person who issued the dishonoured cheque.

Status of the pending cases

After ruling that the proper jurisdiction to hold trial in a cheque bouncing case is where the bank of the alleged accused is situated, the Bench passed an order dealing with the currently pending cases.

In all those matters where the alleged accused has appeared after summoning and his evidence under Section 145 has commenced, those cases will remain where they are already pending. In all other matters where the evidence by examination under Section 145 has not begun, the case will be returned to the complainant to institute at the jurisdiction where the bank of the accused is situated.

Reading any judgement by Justice Vikramajit Sen is an excellent experience and this one is no different. However, in a separate judgement, Justice TS Thakur has also given elaborate findings regarding the confusionaround cheque bouncing matters.

(Dushyant K Mahant , is Founding Partner of Mahant & Mahant and Intellectual Property Lawyer. He did his Masters in IP Law from Brisbane. Does pro bono work as well. Mr Mahant is active on social media to exchange views and news about politics, law and common sense)

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Dishonour of cheque Live Law

On August 4, 2014 by M.A.Rashid

Breaking: Dis-honour of Cheque cases can be filed only to the Court within whose local jurisdiction, the offence was Committed, namely where the cheque is dishonoured by the bank on which it is drawn. Bhaskaran Vs Balan (1999) which allowed Five territorial Jurisdictions overruled.

A three Judge Bench of the Supreme Court finally held that  a Complaint of Dis-honour of Cheque can be filed only  to  the  Court  within  whose  local jurisdiction the offence was committed, which  in  the  present  context  is where the cheque is dishonoured by the bank on which it is drawn. The Court clarified that the Complainant  is  statutorily  bound  to comply with Section 177 etc. of the CrPC and therefore the  place  or  situs where the Section 138 Complaint is to be filed is not of his choosing. The Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. Overruled the two Judge Bench Judgment in K. Bhaskaran v. Sankaran Vaidhyan  Balan  (1999)  7 SCC 510 wherein  it was held that "the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice"." if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done." The Court accepted the view of another two Judge Bench Judgment in Harman  Electronics  Pvt.Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1  SCC  720. "It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be  proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.".

Justice Vikramjit Sen who wrote the main Judgment held that "We  respectfully agree  with  this  statement  of  law  and  underscore  that   in   criminal jurisprudence there is  a  discernibly  demarcated  difference  between  the commission of an offence and its  cognizance  leading  to  prosecution.  The

Harman  approach  is  significant  and  sounds  a  discordant  note  to  the Bhaskaran ratio.  Harman also highlights the reality  that  Section  138  of the NI Act is being rampantly misused so  far  as  territorial  jurisdiction for trial of the Complaint is concerned.  With the passage of time  equities have therefore transferred from one end of the pendulum to  the  other.   It is now not uncommon for the Courts to encounter the issuance of a notice  in compliance with clause (b) of the proviso to Section 138 of the NI Act  from a situs which bears no connection with the Accused or with any facet of  the transaction between the parties, leave aside the place where  the  dishonour of the cheque has taken place.  This is also the  position  as  regards  the presentation of the cheque, dishonour  of  which  is  then  pleaded  as  the territorial platform of the Complaint under  Section  138  of  the  NI  Act.

Harman, in fact,  duly  heeds  the  absurd  and  stressful  situation,  fast becoming common-place where several cheques signed by the  same  drawer  are presented  for  encashment  and  requisite  notices  of  demand   are   also despatched from different places.  It appears to us that justifiably  so  at that time, the conclusion in Bhaskaran was influenced in  large  measure  by curial compassion towards the unpaid payee/holder, whereas with the  passage of two decades  the  manipulative  abuse  of  territorial  jurisdiction  has become a recurring and piquant factor.  The liberal  approach  preferred  in Bhaskaran now calls for a stricter interpretation of the statute,  precisely because of its  misemployment  so  far  as  choice  of  place  of  suing  is concerned.  These are the circumstances which have propelled us to  minutely consider the decisions rendered by two-Judge Benches of this Court.

The Court found that the two Judge Benches of the Supreme Court and various High Courts are following the above two Judgments at their discretion. It is held that "The territorial jurisdiction conundrum which, candidly is currently  in  the cauldron owing to varying if not  conflicting  ratios,  has  been  cogitated upon very recently by a two-Judge Bench in Criminal Appeal  No.808  of  2013 titled Nishant Aggarwal v. Kailash Kumar  Sharma  decided  on  1.7.2013  and again by the same Bench in Criminal Appeal No.1457 of  2013  titled  Escorts Limited v. Rama Mukherjee decided on  17.09.2013.   Bhaskaran  was  followed and Ishar Alloy and Harman were explained.

Justice T.S.Takur who wrote a separate but concurrent opinion held that "Three recent decisions need be mentioned  at  this  stage  which  have followed Bhaskaran and attempted to reconcile the ratio of  that  case  with the subsequent decisions in Ishar Alloy Steels and  Harman  Electronics.  In Nishant Aggarwal v. Kailash Kumar Sharma (2013) 10 SCC  72  this  Court  was once again dealing with a case where the complaint had been filed  in  Court at Bhiwani in Haryana within whose territorial jurisdiction the  complainant had presented the cheque for encashment, although the cheque was drawn on  a bank at Gauhati in Assam. Relying upon the  view  taken  in  Bhaskaran  this Court held that the Bhiwani Court had jurisdiction to deal with the  matter. While saying so, the  Court  tried  to  distinguish  the  three-Judge  Bench decision  in  Ishar  Alloy  Steels  (supra)  and  that  rendered  in  Harman Electronics case (supra) to hold that the ratio of those decisions  did  not dilute the principle stated in Bhaskaran case. That  exercise  was  repeated by this Court in FIL Industries Ltd. v. Imtiyaz Ahmad Bhat (2014) 2 SCC  266 and in Escorts Ltd. v. Rama Mukherjee (2014) 2 SCC 255  which  too  followed Bhaskaran and held that complaint under Section  138  Negotiable  Instrument Act could be instituted at any  one  of  the  five  places  referred  to  in Bhaskaran's case.

We have, with utmost respect to the Judges comprising the  Bench  that heard the above cases, found it difficult to follow suit  and  subscribe  to the view stated in Bhasakaran.

Justice Thakur summarized the principles as follows

(i) An offence under Section 138 of the Negotiable Instruments  Act,  1881is committed no sooner a cheque drawn by the accused  on  an  account  being maintained by him in a bank for  discharge  of  debt/liability  is  returned unpaid for insufficiency of funds or for the reason that the amount  exceeds the arrangement made with the bank.

(ii) Cognizance of any such offence is however forbidden under Section  142 of the Act except upon a complaint in writing made by the  payee  or  holder of the cheque in due course within a period of one month from the  date  the cause of action accrues to such payee or holder under clause (c) of  proviso to Section 138.

(iii) The  cause  of  action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if:

(a) the dishonoured cheque is  presented  to  the  drawee  bank  within  a period of six months from the date of its issue.

(b) If the complainant has demanded payment of cheque amount  within  thirty days of receipt of information by him from the bank regarding the  dishonour of the cheque and

(c) If the drawer has failed to pay the cheque amount within fifteen  days of receipt of such notice.

(iv) The  facts  constituting  cause  of  action  do  not  constitute  the ingredients of the offence under Section 138 of the Act.

(v) The proviso to Section  138  simply  postpones/defers  institution  of criminal proceedings and taking of cognizance by the Court  till  such  time cause  of  action  in  terms  of  clause  (c)  of  proviso  accrues  to  the complainant.

(vi) Once the cause of action accrues to the complainant, the  jurisdiction of the Court to try the case will be determined by reference  to  the  place where the cheque is dishonoured.

(vii) The general rule stipulated under Section 177 of  Cr.P.C  applies  to cases under Section 138 of the Negotiable Instruments Act.   Prosecution  in such cases can, therefore, be launched against  the  drawer  of  the  cheque only before the Court within whose jurisdiction the  dishonour  takes  place except  in  situations  where  the  offence  of  dishonour  of  the   cheque punishable under Section 138 is committed along with  other  offences  in  a single transaction within the meaning of Section 220(1)  read  with  Section 184 of the Code of Criminal Procedure or is covered  by  the  provisions  of Section 182(1) read with Sections 184 and 220 thereof.

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