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Avneesh Kumar Gupta vs Central Bureau Of Investigation on 24 April, 2017

1

IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL

Criminal Misc. Application No. 510 of 2017
(Under Section 482 Cr.P.C.)

Avneesh Kumar Gupta ………….. Applicant

versus

Central Bureau of Investigation, Dehradun ………. Respondent

Mr. Vipul Sharma and Rajneesh Gupta, Advocates, present for the
applicant.
Mr. Sandeep Tandon, Advocate, present for the respondent/C.B.I.

U.C. Dhyani, J. (Oral)

The applicant, by means of present application under
Section 482 Cr.P.C., seeks to quash the order dated 08.02.2017,
passed by Court of Special Judge, Anti Corruption (CBI) by means
of which application under Section 227 read with 239 Cr.P.C. of the
applicant has been dismissed and the consequential order dated
08.02.2017 by means of which charge under Sections 7, 13, 1(d)
and 13 (2) of EC Act, 1988 and charge under Section 120-B IPC
read with Section 7 and 13(2) of Prevention of Corruption Act, 1988
has been framed against the present applicant.

2. A trap was laid by Trap Team. Accused was summoned to
face the trial. During the course of trial, an application was moved
by the applicant for his discharge. The Trial Court/Special Judge,
Anti Corruption, CBI, Dehradun, by an elaborate and well reasoned
order, dismissed such an application and, thereafter, framed charge
against the accused-applicant. Aggrieved against both the orders, the
2

applicant has preferred present Application under Section 482
Cr.P.C.

3. Principal allegation against the applicant is that when he was
posted as Intelligence Officer in Directorate General, Central Excise
Intelligence (DGCEI), Region Dehradun, he demanded illegal
gratification of Rs. 20 lacs in August, 2015, in presence of Senior
Intelligence Officer, DGCEI, Assistant Director, DGCEI and
Intelligence Officer, DGCEI from the complainant. In his capacity
as public servant, by corrupt or illegal means, and by abusing his
position as Public Servant, he obtained for himself a sum of Rs. 10
lacs as gratification/pecuniary advantage other than legal
remuneration from the complainant.

4. Learned counsel for the applicant placed reliance upon
decisions rendered by Hon’ble Apex Court K.S. Panduranga vs.
State of Karnatka, reported in (2013) 3 Supreme Court Cases 721
and M.K.Harshan vs. State of Kerala, reported in (1996) 11
Supreme Court Cases 720.

5. Learned counsel for the applicant argued that there should be
clinching or corroborative evidence to support the version of the
complainant. In M.K.Harshan case (supra) Hon’ble Supreme Court
observed that “unless the Court is satisfied on this aspect, it is
difficult to hold that an accused has accepted the illegal gratification
or obtained the same within the meaning of Section 5 (1) (d) of
Prevention of Corruption Act, particularly, when the version of the
accused appears probable.”

It may be mentioned here that the prosecution evidence has
not been adduced in the instant case as yet. The decision rendered by
Hon’ble Apex Court may be applied by the Trial Court only at the
time of giving final judgment, after the prosecution evidence is
closed. Here, there is no such occasion to apply the decision
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rendered in M.K.Harshan case (supra) to the facts of the present
applicant.

6. Similar is the position with Panduranga’s decision (supra),
in which Hon’ble Apex Court rejected the concocted story of loan
repayment, demand and acceptance of bribe from the complainant
and capability of the accused to show official favour to the
complainant. The Hon’ble Apex Court observed that the High Court
and Sessions Court rightly disbelieved concocted and highly
improbable story of borrowing of money from PW1.

It may be mentioned here, at the cost of repetition, that the
time is not yet ripe for the Trial Court to apply the decision of
Panduranga’s case to the facts of instant case, inasmuch as, the
prosecution evidence is yet to be adduced before the Trial Court.
Only the charge has been framed against the applicant, against
which he has filed present application under Section 482 Cr.P.C.

7. The scope of discharge has been highlighted by the
Hon’ble Apex Court in a catena of decisions, including the one
in Shoraj Singh Ahlawat others vs State of U.P. another,
AIR 2013 SC 52.

8. First of all, the Court has to see what is the scope of
interference in framing of charge? The Hon’ble Supreme Court
in Shoraj Singh Ahlawat (supra) while relying upon
various decisions rendered in Preeti Gupta another vs.
State of Jharkhand another (2010) 7 SCC 667, Union of
India vs. Prafulla Kumar Samal another, (1979) 3 SCC 4;
Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9
SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005)
1 SCC 568; Onkar Nath Mishra others vs. State (NCT of
Delhi) another, (2008) 2 SCC 561; Shakson Belthissor vs.
4

State of Kerala another, (2009) 14 SCC 466 and Rumi
Dhar (Smt.) vs. State of West Bengal another, (2009) 6
SCC 364, has observed as follows:

“8. On behalf of the appellant it was argued on the
authority of the decisions of this Court in Preeti Gupta
and Anr. v. State of Jharkhand Anr. (2010) 7 SCC
667, Union of India v. Prafulla Kumar Samal and Anr.
(1979) 3 SCC 4, Sajjan Kumar v. Central ureau of
Investigation (2010) 9 SCC 368, State of Orissa v.
Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath
Mishra and Ors. v. State (NCT of Delhi) and Anr.
(2008) 2 SCC 561, Shakson Belthissor v. State of
Kerala and Anr. (2009) 14 SCC 466, and Rumi Dhar
(Smt.) v. State of West Bengal and Anr. (2009) 6 SCC
364, that while considering an application for
discharge the Court can examine the evidence on
record and discharge the accused persons if there is no
possibility of the accused being found guilty on the
basis of such evidence specially in cases where the
accused produces unimpeachable evidence in support
of his defence. It was also contended that while
examining whether the Court should or should not
discharge the accused, it must be remembered, that
Section 498-A of the IPC is a much abused provision
and that exaggerated versions of small incidents are
often resented to falsely implicate, harass and humiliate
the husband and his relatives. Applying the principles
set out in the above decisions the appellants were,
according to Ms. Geeta Luthra, learned counsel
appearing for them, entitled to a discharge not only
because there was an inordinate delay in the filing of
the complaint by respondent No.1 but also because the
statements made under Section 161 Cr.P.C. by the
witnesses who were either planted or merely chance
witnesses were contradictory in nature. It was argued
that two Investigating Officers having investigated the
matter and found the allegations to be false, there was
no reason for the Court to believe the story set up by
the wife who had suffered a decree for divorce in
regard to which she had written to the Army Authorities
nd
a letter dated 2 October, 2006 stating that she was not
pursuing the matter in any Court. Appellant No.3-

th
Naveen Ahlawat having got re-married on 30 October,
2006 the incident referred in the complaint was a
fabrication which aspect the Courts below had failed to
5

consider thus failing to protect the appellants against
harassment and the ignominy of a criminal trial.

9. On behalf of respondent No.2, it was per contra
argued that her husband had filed a divorce petition
against her in the Family Court, Meerut showing
respondent No.2 to be residing with her parents at 327,
Prabhat Nagar, Meerut, whereas she was actually
residing with the appellants along with her daughter at
No. 9, Tigris Road, Delhi Cantt, Delhi. It was further
argued that appellant No.3 had obtained an ex parte
decree order of divorce by fraudulent means and by
forging signatures of respondent No.2, acknowledging
receipt of the notice which she had never received from
the concerned Court. This was conclusively established
st
by the fact that the ex parte decree dated 31 May, 2006
had been eventually set aside by the Court in terms of
th
order dated 28 July, 2007. Allegations regarding
physical torture of respondent No.2 and her being
abandoned on the road on the date of incident in
question as also the allegation about dowry harassment
were factually correct and made out a clear case for
prosecuting the appellants. Appellant No.3 had,
according to the counsel for the respondent, married
th
one Aditi on 30 October, 2006. It was also argued that
letter referred to by appellant No.3 as also letter dated
nd
2 November, 2006 allegedly written by respondent
No.2 were forgeries committed by the appellants. The
trial Court was, in the light of the available material,
justified in refusing to discharge the accused persons
and that the grounds for discharge set up by the
appellants could be examined only after the case had
gone through full-fledged trial. Reliance was placed
upon a decision of this Court in Union of India v.
Prafulla Kumar Samala and Anr. (1979) 3 SCC 5.

10. The case at hand being a warrant case is governed
by Section 239 of the Cr.P.C. for purposes of
determining whether the accused or any one of them
deserved to be discharged. Section 239 is as under:
“239. When accused shall be discharged.
If, upon considering the police report and the
documents sent with it under section 173 and making
such examination, if any, of the accused as the
Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the
6

accused to be groundless, he shall discharge the
accused, and record his reasons for so doing.”

11. A plain reading of the above would show that the
Court trying the case can direct discharge only for
reasons to be recorded by it and only if it considers the
charge against the accused to be groundless. Section
240 of the Code provides for framing of a charge if,
upon consideration of the police report and the
documents sent therewith and making suchexamination,
if any, of the accused as the Magistrate thinks
necessary, the Magistrate is of the opinion that there is
ground for presuming that the accused has committed
an offence triable under Chapter XIX, which such
Magistrate is competent to try and which can be
adequately punished by him. The ambit of Section 239
Cr.P.C. and the approach to be adopted by the Court
while exercising the powers vested in it under the said
provision fell for consideration of this Court in Onkar
Nath Mishra and Ors. v. State (NCT of Delhi) and
Anr. (2008) 2 SCC 561. That too was a case in which a
complaint under Sections 498-A and 406 read with
Section 34 of the I.P.C. was filed against the husband
and parents in-law of the complainant-wife. The
Magistrate had in that case discharged the accused
under Section 239 of the Cr.P.C, holding that the
charge was groundless. The complainant questioned
that order before the Revisional Court which directed
the trial Court to frame charges against the accused
persons. The High Court having affirmed that order,
the matter was brought up to this Court. This Court
partly allowed the appeal qua the parents-in-law while
dismissing the same qua the husband. This Court
explained the legal position and the approach to be
adopted by the Court at the stage of framing of charges
or directing discharge in the following words:
“11. It is trite that at the stage of framing of charge the
court is required to evaluate the material and
documents on record with a view to finding out if the
facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients
constituting the alleged offence. At that stage, the court
is not expected to go deep into the probative value of
the material on record. What needs to be considered is
whether there is a ground for presuming that the
offence has been committed and not a ground for
convicting the accused has been made out. At that
stage, even strong suspicion founded on material which
leads the court to form a presumptive opinion as to the
7

existence of the factual ingredients constituting the
offence alleged would justify the framing of charge
against the accused in respect of the commission of that
offence .”

(emphasis supplied)

12. Support for the above view was drawn by this Court
from earlier decisions rendered in State of Karnataka
v. L. Muniswamy 1977 Cri.LJ 1125, State of
Maharashtra Ors. v. Som Nath Thapa and Ors.
1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni
2000 Cri.LJ 3504. In Som Nath’s case (supra) the
legal position was summed up as under:

“if on the basis of materials on record, a court
could come to the conclusion that commission of the
offence is a probable consequence, a case for framing
of charge exists. To put it differently, if the court were
to think that the accused might have committed the
offence it can frame the charge, though for conviction
the conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage of
framing of a charge, probative value of the materials on
record cannot be gone into; the materials brought on
record by the prosecution has to be accepted as true at
that stage. ”

(emphasis supplied)

13. So also in Mohanlal’s case (supra) this Court
referred to several previous decisions and held that the
judicial opinion regarding the approach to be adopted
for framing of charge is that such charges should be
framed if the Court prima facie finds that there is
sufficient ground for proceeding against the accused.
The Court is not required to appreciate evidence as if to
determine whether the material produced was sufficient
to convict the accused. The following passage from the
decision in Mohanlal’s case (supra) is in this regard
apposite:

“8. The crystallized judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding
against the accused. The court is not required to
appreciate evidence to conclude whether the materials
produced are sufficient or not for convicting the
accused.”

8

14. In State of Orissa v. Debendra Nath Pandhi (2005)
1 SCC 568, this Court was considering whether the
trial Court can at the time of framing of charges
consider material filed by the accused. The question
was answered in the negative by this Court in the
following words:

“18. We are unable to accept the aforesaid contention.
The reliance on Articles 14 and 21 is misplaced……
Further, at the stage of framing of charge roving and
fishing inquiry is impermissible. If the contention of the
accused is accepted, there would be a mini-trial at the
stage of framing of charge. That would defeat the object
of the Code. It is well-settled that at the stage of
framing of charge the defence of the accused cannot be
put forth. The acceptance of the contention of the
learned counsel for the accused would mean permitting
the accused to adduce his defence at the stage of
framing of charge and for examination thereof at that
stage which is against the criminal jurisprudence. By
way of illustration, it may be noted that the plea of alibi
taken by the accused may have to be examined at the
stage of framing of charge if the contention of the
accused is accepted despite the well settled proposition
that it is for the accused to lead evidence at the trial to
sustain such a plea. The accused would be entitled to
produce materials and documents in proof of such a
plea at the stage of framing of the charge, in case we
accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It only means hearing the submissions of
the accused on the record of the case as filed by the
prosecution and documents submitted therewith and
nothing more. The expression ‘hearing the submissions
of the accused’ cannot mean opportunity to file material
to be granted to the accused and thereby changing the
settled law. At the state of framing of charge hearing
the submissions of the accused has to be confined to the
material produced by the police………

xx xx xx xx

23. As a result of aforesaid discussion, in our view,
clearly the law is that at the time of framing charge or
taking cognizance the accused has no right to produce
any material…”

9

(emphasis supplied)

15. Even in Smt. Rumi Dhar v. State of West Bengal
Anr. (2009) 6 SCC 364, reliance whereupon was
placed by counsel for the appellants the tests to be
applied at the stage of discharge of the accused person
under Section 239 of the Cr.P.C., were found to be no
different. Far from readily encouraging discharge, the
Court held that even a strong suspicion in regard to the
commission of the offence would be sufficient to justify
framing of charges. The Court observed:

“…While considering an application for discharge
filed in terms of Section 239 of the Code, it was for the
learned Judge to go into the details of the allegations
made against each of the accused persons so as to form
an opinion as to whether any case at all has been made
out or not as a strong suspicion in regard thereto shall
subserve the requirements of law…

16. To the same effect is the decision of this Court in
Union of India v. Prafulla Kumar Samal and Anr. v.
(1979) 3 SCC 4, where this Court was examining a
similar question in the context of Section 227 of the
Code of Criminal Procedure. The legal position was
summed up as under:

“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge :
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out:

(2) Where the materials placed before the Court
disclose grave suspicion against the accused which has
not been properly explained the Court will be fully
justified in framing a charge and proceeding with the
trial.

(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible
and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully
within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present
10

Code is a senior and experienced Judge cannot act
merely as a Post Office or a mouth-piece of the
prosecution, but has to consider the broad probabilities
of the case, the total effect of the evidence and the
documents produced before the Court, any basic
infirmities appearing in the case and so on. This
however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.”

9. Judging by the same yardstick, the Court does not find
any merit in the grounds which have been taken on behalf
of the applicant in present application under Section 482
Cr.P.C. The Court need not reproduce those grounds
which have been taken by the applicants, as the same are
part of the record.

10. Hon’ble Supreme Court in Amit Kapoor vs. Ramesh
Chander and another, (2013) 1 Supreme Court Cases
(Cri) 986, has laid down certain principles in respect of
exercise of jurisdiction under Section 482 Cr.P.C. Some
of those principles, which are relevant in the context of
present case, can be summarized as below:

i. Though there are no limits of the powers of the Court
under Section 482 of the Code but the more the power,
the more due care and caution is to be exercised in
invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 of the Code should be exercised very
sparingly and with circumspection and that too in the
rarest of rare cases.

ii. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith prima
facie establish the offence or not. If the allegations are
so patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and
where the basic ingredients of a criminal offence are not
satisfied then the Court may interfere.

11

iii. Where the factual foundation for an offence has been
laid down, the courts should be reluctant and should not
hasten to quash the proceedings even on the premise that
one or two ingredients have not been stated or do not
appear to be satisfied if there is substantial compliance
with the requirements of the offence.

iv. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or
not at the stage of framing of charge or quashing of
charge.

v. Where the exercise of such power is absolutely essential
to prevent patent miscarriage of justice and for
correcting some grave error that might be committed by
the subordinate courts even in such cases, the High
Court should be loathe to interfere, at the threshold, to
throttle the prosecution in exercise of its inherent
powers.

vi. Where there is an express legal bar enacted in any of the
provisions of the Code or any specific law in force to the
very initiation or institution and continuance of such
criminal proceedings, such a bar is intended to provide
specific protection to an accused.

vii. The Court has a duty to balance the freedom of a person
and the right of the complainant or prosecution to
investigate and prosecute the offender.

viii. The process of the Court cannot be permitted to be used
for an oblique or ultimate/ulterior purpose.

ix. Where allegations give rise to a civil claim and also
amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint
cannot be maintained. It may be purely a civil wrong or
purely a criminal offence or a civil wrong as also a
criminal offence constituting both on the same set of
facts. But if the records disclose commission of a
criminal offence and the ingredients of the offence are
satisfied, then such criminal proceedings cannot be
quashed merely because a civil wrong has also been
committed. The power cannot be invoked to stifle or
scuttle a legitimate prosecution. The factual foundation
and ingredients of an offence being satisfied, the court
will not either dismiss a complaint or quash such
proceedings in exercise of its original jurisdiction.

x. Where the allegations made and as they appeared from
the record and documents annexed therewith to
predominantly give rise and constitute a ‘civil wrong’
with no ‘element of criminality’ and does not satisfy the
12

basic ingredients of a criminal offence, the Court may be
justified in quashing the charge. Even in such cases, the
Court would not embark upon the critical analysis of the
evidence.

xi. Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is
sufficient material on the basis of which the case would
end in a conviction, the Court is concerned primarily
with the allegations taken as a whole whether they will
constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.

xii. It is neither necessary nor is the court called upon to
hold a full- fledged enquiry or to appreciate evidence
collected by the investigating agencies to find out
whether it is a case of acquittal or conviction.

xiii. In exercise of its jurisdiction under Section 228 and/or
under Section 482, the Court cannot take into
consideration external materials given by an accused for
reaching the conclusion that no offence was disclosed or
that there was possibility of his acquittal. The Court has
to consider the record and documents annexed with by
the prosecution.

xiv. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined to
permit continuation of prosecution rather than its
quashing at that initial stage. The Court is not expected
to marshal the records with a view to decide
admissibility and reliability of the documents or records
but is an opinion formed prima facie.

xv. Where the charge-sheet, report under Section 173(2) of
the Code, suffers from fundamental legal defects, the
Court may be well within its jurisdiction to frame a
charge.

xvi. Coupled with any or all of the above, where the Court
finds that it would amount to abuse of process of the
Code or that interest of justice favours otherwise, it may
quash the charge. The power is to be exercised ex debito
justitiae, i.e. to do real and substantial justice for
administration of which alone, the courts exist.

xvii. These are the principles which individually and
preferably cumulatively (one or more) be taken into
consideration.

13

11. Hon’ble Apex Court in Rajiv Thapar and others vs.
Madan Lal Kapoor (2013) 3 SCC 330 has laid down
certain principles. Para 28 of the said ruling is
reproduced herein below for convenience:

“The High Court, in exercise of its jurisdiction under
Section 482 of the Cr.P.C., must make a just and
rightful choice. This is not a stage of evaluating the
truthfulness or otherwise of allegations levelled by the
prosecution/complainant against the accused. Likewise,
it is not a stage for determining how weighty the
defence raised on behalf of the accused is. Even if the
accused is successful in showing some suspicion or
doubt, in the allegations levelled by the
prosecution/complainant, it would be impermissible to
discharge the accused before trial. This is so, because it
would result in giving finality to the accusations
levelled by the prosecution/complainant, without
allowing the prosecution or the complainant to adduce
evidence to substantiate the same. The converse is,
however, not true, because even if trial is proceeded
with, the accused is not subjected to any irreparable
consequences. The accused would still be in a position
to succeed, by establishing his defences by producing
evidence in accordance with law. There is an endless
list of judgments rendered by this Court declaring the
legal position, that in a case where the
prosecution/complainant has levelled allegations
bringing out all ingredients of the charge(s) levelled,
and have placed material before the Court, prima facie
evidencing the truthfulness of the allegations levelled,
trial must be held.”

14

12. It is settled law that the factual controversy need not be
gone into by the Court while exercising jurisdiction under
Section 482 Cr.P.C. and hence this Court need not deal
with factual aspects of the case in detail. Whether such
offences were, in fact, committed by the applicant, or not,
has to be examined by the Trial Court. Apparently, there
is nothing on record to say that the applicant, prima facie,
did not commit such offence. Foundation of criminal
offence is, therefore, laid against the accused-applicant on
a bare reading of the allegations levelled against him.

13. The accused cannot, therefore, be permitted to interfere in
the proceedings every now and then, especially when it is
a case of corruption, which is on different plane than
other criminal cases. The experience is that an accused
facing trial under the Prevention of Corruption Act will
not permit the Presiding Judge to proceed even an inch
further without his concurrence.

14. Criminal proceeding pending against him therefore,
should not be quashed. The jurisdiction under Section 482
Cr.P.C. should not be exercised to stifle or scuttle the
legitimate prosecution.

15. It is also the settled law that inherent jurisdiction under
Section 482 of Cr. P.C. has to be exercised sparingly,
carefully and with caution and only when such exercise is
justified by the tests specifically laid in the Section itself.
The applicant, in the instant case, is unable to pass those
tests.

15

16. This Court, therefore, is of the view that no interference is
called for in the proceedings of the Court below in
exercise of its inherent jurisdiction. Application under
Section 482 Cr.P.C. filed on behalf of the applicant is
therefore, dismissed.

17. As prayed, liberty is granted to the applicant to take all the
factual pleas before the Court below for securing his
acquittal at an appropriate stage.

(U.C.Dhyani,J.)
24.04.2017
Kaushal
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