Bombay High Court
Nish Developers Pvt Ltd through its Directors Mr Jayprakash KhemkaversusState of Maharashtra
- Decided
- Disposal
- Disposed Off
Holding
The revision court held that the magistrate erred in setting aside the B‑summary report and ordering further investigation, and therefore quashed the order and accepted the B‑summary report.
Summary
The applicant, Nish Developers Pvt Ltd, sought a revision of the Additional Chief Judicial Magistrate’s order that accepted respondent No.3’s protest petition and directed the Economic Offences Wing (EOW) to reinvestigate alleged fraud in obtaining Floor Space Index (FSI) for a redevelopment project. The prosecution alleged that the company fabricated records to claim pre‑1969 structures and obtained massive FSI benefits, while the applicant contended that the respondent was a blackmailer who repeatedly filed false complaints and that two independent investigations (by Kherwadi Police and the EOW) had already concluded no offence. The magistrate’s order was challenged on the ground that it was based on conjecture, ignored the earlier B‑summary reports, and failed to consider that the redevelopment scheme had been upheld by the High Power Committee and this Court. The Division Bench examined the magistrate’s reasoning, the adequacy of the prior investigations, and the respondent’s pattern of filing multiple complaints. Concluding that the magistrate erred, the court allowed the revision, quashed the order, and accepted the B‑summary report, thereby rejecting the demand for further investigation.
Issues considered
- The propriety of the Additional Chief Judicial Magistrate’s order accepting the protest petition and directing fresh investigation despite prior B‑summary reports.
- Whether the respondent’s allegations constitute a false or frivolous complaint warranting dismissal.
- Whether the magistrate exercised jurisdiction correctly in remanding the case to the EOW.
- Whether the earlier investigations and the approval of the redevelopment scheme preclude further criminal inquiry.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 156(3)
- Development Control and Promotion Regulations — s. Regulation 33(9)
- Indian Penal Code — s. 120-B, 420, 465, 466, 467
- Right to Information Act
Subjects
- criminal revision
- false complaint
- B‑summary report
- Economic Offences Wing
- Floor Space Index fraud
- redevelopment scheme
- whistle‑blower
- extortion
- abuse of process
- investigation
Judgment
4-REVN-470-2026 (CR) (Final).doc
Shubhada S Kadam
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 470 OF 2026
Nish Developers Pvt Ltd Through Its Directors
Mr Jayprakash Khemka ...Applicant/s
Versus
1. The State of Maharashtra
2. The Sr.Inspector of Police, Economic
Offences Wing, Crime Branch, Mumbai.
3. Vinod Mohanlal Jain ...Respondent/s
_________________________________________________________________
Mr. Madhur Surana along with Mr. Sandeep Singh, Advocate for
Applicant.
Mr. M. G. Patil, APP for Respondent-State.
Mr. Ashok M. Saraogi along with Mr. Abdullah M. Shaikh, Advocate for
Respondent No.3.
PI-Mr. Vijendra Dhurat along with PI-Devidas Sangale, EOW, Unit-04,
Mumbai.
_________________________________________________________________
CORAM : SHIVKUMAR DIGE, J.
DATE : 5th OCTOBER, 2026.
P.C. :
1. The challenge in this revision application is to the impugned
order passed by the learned Additional Chief Judicial Magistrate, 47th
Court, Esplanade, Mumbai, whereby the learned Magistrate has accepted
Digitally
signed by
the protest petition filed by respondent No.3 and directed that the B-
SHUBHADA
SHUBHADA SHANKAR
SHANKAR
KADAM
KADAM
Date:
summary report be returned to Economic Offences Wing (EOW) for further
2026.10.10
13:43:13
+0530 investigation.
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2. It is prosecution's case that the applicant-company developed
the land property known as Kasam Chawl and Islam Mill Compound (for
short “the suit property”). It is alleged that no structures were available on
the suit property prior to the year 1969, but the applicant, with the help of
various authorities manipulated and created forged and fabricated record
and showed structures were existing on the suit property prior to the year
1969, availed FSI of 4, and cheated the government for thousands of
crores. The offence was registered against applicant and others on private
complaint filed by respondent No.3.
3. It is contention of learned counsel for the applicant that there
were 642 cess and 52 non-cess structures i.e. total 694 structures existed
on suit property and more than 95 % occupants of the suit property gave
their written consent in favour of the applicant for redevelopment.
Accordingly, the applicant submitted a proposal to various authorities for
cluster development of the suit property. The High Power Committee (for
short “HPC”) constituted by Government after considering applicant’s
proposal granted approval under Regulation 33(9) of the Development
Control and Promotion Regulations (DCPR). Learned counsel further
submitted that respondent No. 3 is neither an occupant, tenant, nor
member of the suit property and he is a stranger to the redevelopment. He,
with the sole intent to blackmail and extort money from the applicant,
began instigating certain occupants of the suit property to challenge the
cluster redevelopment activities taken up by the applicant. Accordingly, the
occupants of the suit property preferred an appeal before the HPC,
challenging the redevelopment carried out by the applicant. The HPC, after
hearing both sides, dismissed the appeal. The said order was challenged
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before this Court by way of a writ petition and this Court dismissed the
said writ petition.
3.1. Learned counsel further submitted that respondent No. 3, along
with his accomplice Mr. Santosh Pandey, filed an application before the
National Green Tribunal (for short “NGT”), Pune, challenging the
environment clearance granted by the Environment Department to the
applicant . The applicant challenged the locus standi of respondent No. 3
and the issue of limitation before the NGT, but the said application was
rejected. Hence, the applicant challenged the said order by filing a writ
petition before this Court. The said matter went up to Supreme Court. It is
submitted that though the applicant had obtained environment clearance
in the year 2008, respondent No. 3 made false allegations that the
applicant had not obtained environment clearance and said matter was
dragged till Supreme Court.
3.2. Learned counsel further submitted that Respondent No. 3 and
his accomplice Santosh Pandey threatened the directors of the applicant
company, and therefore, a complaint was filed against them at Worli
Police Station. It is submitted that respondent No. 3, along with another
person, filed LC Suit No. 2783 of 2016 in the City Civil Court, Mumbai,
praying for directions for appointment of a Court Commissioner to
investigate the redevelopment project carried out by the applicant and to
initiate criminal proceedings against the applicant and others in connection
with FSI norms and policies, and for several other reliefs. In the said suit, a
notice of motion was taken out seeking directions to MCGM and the
Government of Maharashtra to issue a stop work notice and for injunction
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restraining the applicant from carrying out redevelopment. Thereafter,
respondent No. 3 and others withdrew the said suit and notice of motion.
3.3. Learned counsel further submitted that during the pendency of
the said suit, respondent No. 3 preferred a criminal complaint before the
learned Metropolitan Magistrate, Bandra, against the applicant and
Officers of Municipal Corporation of Greater Mumbai (for short “MCGM”)
for offences punishable under Sections 420, 465, 466, and 467 read with
Section 120-B of the IPC. In paragraph 17 of the said complaint,
respondent No. 3 stated on oath that he had not filed any other complaint
in any other Court against the accused. In spite of filing the said criminal
complaint, respondent No. 3 filed Criminal Writ Petition No. 1487 of 2016
before this Court against the applicant and others, inter alia praying for
directions to constitute a Special Investigation Team (SIT) to investigate
the matter, and making allegations that the applicant had played fraud in
obtaining permissions and sanctions for the redevelopment. In paragraph
26 of the said writ petition, it was stated on oath that no such other
petition was either filed or pending either in this Court or in any other
Court in India.
3.4. Learned counsel further submitted that the applicant filed an
affidavit-in-reply in the said writ petition, pointing out that respondent No.
3 and his accomplices are blackmailers and extortionists and the said writ
petition was filed only with a view to extort money. Learned counsel
further submitted that respondent No. 3 suppressed the fact of filing
Criminal Writ Petition No. 1487 of 2016 from the learned Metropolitan
Magistrate, Bandra, and in the said criminal complaint obtained an order
of issue process on 20th August 2016 under Section 156(3) of the Cr.PC.
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Respondent No. 3 also suppressed the fact of filing of the said criminal
complaint and the order passed under Section 156(3) of the Cr.PC. from
this Court and thereafter sought withdrawal of Criminal Writ Petition No.
1487 of 2016, which was permitted to be withdrawn on 22nd August
2016. Learned counsel further submitted that on the basis of the order
under Section 156(3) of the Cr.PC., offence was registered against the
applicant and others at Kherwadi Police Station.
3.5. Learned counsel further submitted that the Senior Inspector of
Police, Kherwadi, investigated the matter and found that the complaint
filed by respondent No. 3 was false and baseless, and accordingly
submitted a B-summary report before the learned Magistrate, and also
prayed that action be taken against respondent No. 3 for filing a false
complaint. Learned counsel further submitted that respondent No. 3
preferred a criminal application before the learned Magistrate seeking
transfer of Complaint No. 38/SW/2016 from Kherwadi Police Station to
EOW. After hearing the parties, the learned Magistrate, rejected
respondent No. 3's application, observing that since the investigation was
completed and the B-summary report was submitted, there was no
question of transferring the investigation from Kherwadi Police Station to
EOW.
3.6. Learned counsel further submitted that when respondent No. 3
came to know about the said B-summary report, he filed Criminal Writ
Petition No. 767 of 2017 before this Court praying that the investigation of
the present case be transferred from Kherwadi Police Station to EOW,
Mumbai or any other independent agency. In the said writ petition,
respondent No. 3 did not join the applicant as party respondents. The
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applicant filed a criminal application praying to be joined as intervenors.
Though the said petition was pending before this Court respondent No. 3,
on 2nd March 2017, filed a transfer application before the learned Chief
Metropolitan Magistrate (for short “CMM”), inter alia seeking transfer of
CC No. B-SUM/16 from the Metropolitan Magistrate, 32nd Court Bandra,
to another Metropolitan Magistrate. It is submitted that respondent No.3
suppressed the fact of filing of the criminal writ petition before this Court
seeking transfer of investigation from Kherwadi Police Station to EOW.
Criminal Writ Petition No. 767 of 2017 was placed for admission before
Division Bench of this Court on 21st March 2017, and respondent No. 3
suppressed the fact of filing the transfer application before the learned
CMM from this Court. It is submitted that the Division Bench of this Court
after hearing both parties, permitted respondent No. 3 to withdraw the
said criminal writ petition. The transfer application of respondent No. 3
was also rejected by the learned CMM. Learned counsel further submitted
that respondent No. 3 thereafter filed a protest petition before the learned
Magistrate's Court in respect of the B-summary report. After hearing both
parties, the learned Magistrate, without calling the investigating officer
and the Assistant Public Prosecutor, accepted respondent No. 3's protest
petition and directed Kherwadi Police Station to hand over the entire case
papers to EOW, Mumbai, to investigate the matter as per the complaint
and protest petition and submit report. It is submitted that against the said
order, the applicant filed criminal writ petition before this Court,
thereafter, the applicant withdrew the said writ petition.
3.7. Learned counsel further submitted that as per the order of the
learned Magistrate, EOW conducted a further and in-depth investigation,
in the course of which it obtained and verified the records of MCGM
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including assessment records and rent receipts, the records of the City
Survey, the records of MHADA, and recorded the statements of the
concerned officials, and again found that no offence was made out and
submitted its B-summary report before the learned Magistrate. It is
submitted that respondent No. 3 filed a protest petition requesting
rejection of the B-summary report and seeking further investigation. It is
submitted that respondent No. 3 had made serious and wholly
unsubstantiated allegations of fraud involving an amount of more than
₹2,000/- crores, which is baseless. The EOW filed a reply to the protest
petition and pointed out several grounds why the protest petition deserved
to be rejected and the B-summary report deserved to be accepted.
3.8. Learned counsel further submitted that after hearing the
parties, the learned Magistrate accepted the protest petition of respondent
No. 3 and returned the B-summary report to EOW for further
investigation, directing EOW to investigate the matter in terms of the
protest petition and submit a report. It is submitted that the learned
Magistrate, in the impugned order, nowhere recorded that the material on
record discloses the commission of any cognizable offence, nowhere
identified the offences alleged to be disclosed, did not take cognizance, and
did not deal with the reasoning of the investigating officer on any single
item. Instead, the learned Magistrate framed a series of questions and
remitted them at large to the investigating agency, including for
examination by unspecified independent technical or financial experts.
Learned counsel further submitted that the order passed by the learned
Magistrate is erroneous and without any cogent reason, and requested to
allow the application.
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4. It is contention of learned counsel for respondent No. 3 that the
applicant and the concerned authorities manipulated the records and
created forged and fabricated documents to show that structures were
available on the suit property prior to the year 1969, by virtue of which FSI
of 4 was availed and benefits of more than ₹2,000/- crores were generated
by the applicant. It is submitted that respondent No. 3 obtained necessary
information in respect of the suit property under the RTI Act, which shows
that no structures were situated on the suit property, hence, there was no
occasion for any department to sanction FSI of 4. Learned counsel further
submitted that Index-II/Annexure-II of M.B.R.R. Board shows heavy
industries on the property, with measurement of galas unusually given in
square meters. All these galas belong to one party or its sister concerns,
and therefore, in law, they are required to be treated as a single gala for
calculation of FSI. Applicant is running as many as 17 sham companies,
whose directors are members of one family, their close relatives or
employees, and these companies were created only to show structures
owned by different entities. This issue was raised by one of the occupants
before High Power Committee.
4.1. Learned counsel further submitted that applicant relied upon a
letter of B.M.C. dated 10th January, 2008 bearing No. FS/11-A-OD/BF
permitting removal of loft/mezzanine floor, however, the outward register
for 10 days before and after the said date shows that no such letter was
issued. Subsequently, an entry was manipulated in the register to show the
letter as of the year 2007. Information obtained under RTI Act shows that
letter No. FS/32917/BF dated 18th February, 2008 was issued to a
Rationing Office and not to applicant. It is further submitted that letter of
MHADA dated 3rd November, 2016 shows that applicant took benefit of
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structures which never existed prior to year 1969. Applicant also took
benefit of mezzanine floors, although for considering the same their
existence was required to be proved prior to 1995. Electricity meter details
obtained under RTI show that only 8 structures existed on the suit property
prior to year 1969, which demonstrates the forgery and fraud committed
by applicant.
4.2. Learned counsel further submitted that when respondent no.3
started pursuing the matter, he was physically attacked by persons hired by
applicant, for which FIR was registered at Kherwadi Police Station. In
order to silence him, a false FIR for extortion was registered against him at
Worli Police Station, which on investigation was found to be false. Another
FIR was registered against him in Bihar at the behest of directors of
applicant, which came to be closed. It is submitted that all this shows that
applicant attempted to harass respondent no.3 to force him not to take any
action. Learned counsel further submitted that on the complaint of
respondent no.3, learned Magistrate directed Kherwadi Police Station to
investigate the matter, and accordingly FIR came to be registered.
However, police were not interested in carrying out investigation, and at
the instance of applicant and possibly due to interference of politicians
close to directors of applicant, B-Summary report came to be filed. The
protest petition of respondent no.3 was allowed and investigation was
transferred to EOW. The EOW recorded the detailed statement of
respondent no.3 but did not produce it before any Court, and again filed B-
Summary report. The protest petition of respondent no.3 was allowed by
the impugned order.
4.3. Learned counsel further submitted that the issue involved in
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present matter is not ownership of the suit property but occupancy and
eligibility to get FSI. Applicant claims that there were 342 cess and 52
non-cess structures and 95% occupants gave written consent, however,
since no structures existed prior to year 1969, the question of any such
consent does not arise. It is further submitted that the NOCs and
permissions relied upon by applicant have been obtained by playing fraud
and/or in collusion with officers of the concerned departments. These
include permissions of Ministry of Environment, Maharashtra Pollution
Control Board, Chief Fire Officer, High Rise Committee, Airport Authority
and High Power Committee, approval of building plans, commencement
certificate by B.M.C. and part occupation certificate. Grant of occupation
certificate makes no difference for considering a criminal case, as there are
instances where such permissions were cancelled and buildings were
demolished.
4.4. Learned counsel further submitted that though applicant
contends that respondent no.3 is neither occupant nor tenant and has no
right, title or interest in the property, criminal law can be set in motion by
any person who is conversant with the facts of the case, and therefore the
contention regarding locus is false. It is further submitted that the orders
passed by HPC, this Court, NGT and Hon'ble Apex Court relied upon by
applicant have nothing to do with the subject matter of the present
proceedings, as the issue of fraud was never before any Court, and such
orders have been invited in collusion through applicant's own persons,
including Mr.Santosh Pandey, on whose proceedings applicant relies, who
is employed with applicant as a liaisoning officer, and respondent no.3 has
nothing to do with him. It is further submitted that limitation is not
applicable to criminal proceedings. The allegation that respondent no.3 is a
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blackmailer and extortionist is false, as the extortion allegation was
investigated by Worli Police Station and found to be false. It is submitted
that the Long Cause Suit filed by respondent no.3 before City Civil Court is
withdrawn, it is a matter of record.
4.5. Learned counsel further submitted that the learned Magistrate
has rightly observed that there was no expert opinion in respect of the
maps and no statement of witnesses regarding the maps, which needs to be
investigated. Learned counsel further submitted that records of MHADA
were different, the records of BMC were different, the records of the
Electricity Company were also different. Learned counsel further submitted
that all the structures shown by MHADA belonged to companies which are
sister concerns of each other with the same directors. Learned counsel
further submitted that continuous offence was being committed by way of
merging dry balconies into the flats and utilizing the entire premises.
Learned Magistrate has passed a well-reasoned order and no interference is
required in it and requested to reject the application. He relied on
following judgments:
1. Manohar Lal versus Vinesh Anand and ors. (2001) 5 SCC 407;
2. Sheonandan Paswan versus State of Bihar and ors. (1987) 1
SCC 288;
3. Subramanian Swamy versus Manmohan Singh and anr. (2012)
3 SCC 64;
4. A. R. Antulay versus Ramdas Sriniwas Nayak and anr. (1984) 2
SCC 500;
5. It is contention of learned APP that investigation is done by two
independent agencies, but nothing is found as alleged by respondent No.3.
The order passed by learned Magistrate is erroneous.
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6. I have heard all learned counsel, perused the impugned order
and documents produced on record.
7. While passing the impugned order, learned Magistrate has
observed that the basic allegations raised by respondent No.3 are not
merely against the existence of official permissions. The allegation is that
such permissions and benefits were obtained on the basis of incorrect or
manipulated documents and by showing structures which, according to the
informant, did not exist on the relevant cut-off date. Therefore, the
investigating authority was required to examine the correctness of the
basic facts and documents on the basis of which the permissions and
benefits were obtained.
8. Learned Magistrate further observed that the aspect of FSI
requires independent verification and cannot be concluded merely on the
basis that the original city survey record was genuine. Learned Magistrate
further observed that investigation was required to examine the material
placed before the various authorities while obtaining approval of the
redevelopment of the suit property. Learned Magistrate further observed
that the material placed in the protest petition discloses specific
documentary discrepancies which had not been satisfactorily reconciled in
the B-summary report.
9. After going through the record, it appears that learned
Magistrate has passed the impugned order on the basis of conjectures and
surmises, holding that further investigation is required in view of the
protest petition, without any cogent reasoning. It appears from record that
while passing order, the learned Magistrate has not gone through the
record properly. The learned Magistrate failed to consider that the
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applicant’s redevelopment scheme was challenged before the HPC
constituted by the State of Maharashtra and thereafter, before this Court
by filing writ petition, wherein the HPC as well as this court upheld the
validity of the redevelopment scheme approved by the HPC. Hence, the
illegality or validity of such a redevelopment scheme cannot be questioned.
It appears from the record that, on the basis of the permissions granted by
the HPC, sanctions were granted by the State Government, MHADA, and
the Municipal Corporation, and the Municipal Corporation has issued
occupation certificates for the constructed buildings on the redeveloped
property.
10. Learned Magistrate has held that further investigation is
necessary in view of protest petition. It appears from the record that
earlier, Kherwadi Police Station filed a B-summary report in the present
case, and thereafter, on the protest petition of respondent No. 3, the
matter was transferred for investigation to EOW. The EOW conducted an
in-depth investigation and again filed a B-summary report. Learned
Magistrate, in paragraph 7 of the impugned order, observed that “the
earlier Court had directed an in-depth investigation into such aspects”.
Respondent No.2-EOW had complied with that direction. However,
Learned Magistrate did not record what remained to be investigated that
was not already covered by the EOW investigation. A successive direction
for further investigation has been made without any reason. It appears that
learned Magistrate also failed to consider that criminal Writ Petition was
filed by respondent No. 3 before this Court seeking similar and identical
reliefs, which were mentioned in the private complaint filed before the
learned Magistrate, and the said criminal writ petition was withdrawn by
respondent No. 3. Learned Magistrate also did not consider Long Cause
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Suit No. 2783 of 2016 was filed by respondent No. 3 to investigate
redevelopment given to the applicants, which was also withdrawn by
respondent No. 3.
11. It appears from the record that respondent No. 3 has
suppressed the fact of filing criminal complaints from Courts. Firstly, the
allegations made by respondent No. 3 in the private complaint were
investigated by Kherwadi Police Station, and thereafter on the protest
petition filed by respondent No. 3, the matter was further investigated by
EOW. Two independent investigating agencies have investigated the
matter. They have recorded the statement of respondent No. 3, collected
the documents provided by him, and accordingly investigated the
allegations, recorded the statements of the concerned witnesses,
formulated questions, and sought explanations from the concerned
authorities and filed B-summary reports. This shows that the investigating
officers conducted a detailed investigation as per the allegations of
respondent No.3. Despite this, respondent No.3 filed a protest petition
seeking further investigation. This shows that respondent No.3 is taking
undue advantage of the rights guaranteed under the Constitution of India,
wasting the time of the court, and compelling the police machinery to
waste time in investigating baseless allegations. This shows substance in
the allegation of the applicant that respondent No. 3 is a blackmailer and
extortionist.
12. It is contention of learned counsel for respondent No. 3 that he
is a whistle-blower. However, the record counters this claim. A genuine
whistle-blower would not conceal the filing of complaints on the same
grounds in different Courts and would not present incorrect facts on oath
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before the Courts. Such conduct reflects poorly on the integrity of
respondent No. 3 and indicates that his intentions were not clean.
13. B-summary report is filed by the investigating officer when
he/she concludes that there is no credible evidence or prima facie case
against the accused, or when the complaint is determined to be maliciously
false, frivolous, or unfounded. When a B-summary report is filed, learned
Magistrate is expected to review it properly. In the present case, it appears
that learned Magistrate has not reviewed the B-summary report properly
and has passed the impugned order without application of mind and has
been swayed by the allegations made in the protest petition, without
considering the fact that the allegations challenging the validity of the
redevelopment project have been rejected by this Court. I have gone
through case-laws cited by learned counsel for respondent No.3. The facts
of present case and cited case-laws are different, hence, not applicable.
14. In view of the above-mentioned reasons, I pass following order:
ORDER
a) The revision application is allowed.
b) The impugned order dated 28th August, 2026 passed by learned
Additional Chief Judicial Magistrate, 47th Court, Esplanade,
Mumbai, below Exhibit-1 in C.C.No.4702388/MISC/2019, is
quashed and set aside.
c) B Summary report is accordingly accepted.
(SHIVKUMAR DIGE, J.)
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