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2018 DIGILAW 177 (JK)

Mohammad Ashraf Wani v. State of JK

2018-03-22

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. Aggrieved by the judgment of conviction and sentence dated 25.08.2017, passed by the learned Special Judge, Anti-Corruption, Srinagar, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of two years for an offence under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, as also to pay a fine of Rs. 10,000/- and to undergo a further rigorous imprisonment of six months for the commission of an offence under Section 161 RPC, and in default of the payment of fine to undergo a simple imprisonment for three months, the appellant has filed an appeal before this Court challenging its virus on the grounds, inter alia, that the judgment under appeal is not sustainable in the eyes of law. It is against the facts and the legal position evolved in terms of the well-established principle of law laid down by the Supreme Court. The demand and the recovery of the bribe money are the indispensable essentials required to be proved for the commission of offences under Section 5 (2) PC Act or 161 RPC. No legal evidence has been brought on record by the prosecution to prove the demand and recovery of the tainted money. The complainant has not supported the prosecution version before the Court. He has been declared hostile by the prosecution. There is no other evidence on record to support and corroborate the prosecution case. The judgment recorded by the trial Court is based on surmises, conjectures and presumptions which is against the canons of law. The learned trial Court has not considered the material and the vital evidence that would establish the innocence of the appellant. The Court below has acted dehors the established rules and principles of law and has directed itself in a manner which is not permissible under law. In the end it has been urged that the judgment of conviction and sentence be set aside and the appeal be allowed. 2. The prosecution case in brief is that the complainant namely Bashir Ahmad Koul S/o Haji Assadullah Koul R/o Wandihama, Lar, Ganderbal, filed a written complaint before the authorities of the Vigilance Organization, Kashmir, Srinagar, stating therein that he was working as a Store Keeper in the office of the CA & PD Department, situated at Ganderbal. 2. The prosecution case in brief is that the complainant namely Bashir Ahmad Koul S/o Haji Assadullah Koul R/o Wandihama, Lar, Ganderbal, filed a written complaint before the authorities of the Vigilance Organization, Kashmir, Srinagar, stating therein that he was working as a Store Keeper in the office of the CA & PD Department, situated at Ganderbal. He was awaiting his posting orders and in this regard, the accused demanded an amount of Rs. 15000/- from him as bribe. An amount of Rs. 10,000/- was decided and settled to be paid in advance. The authorities of the Vigilance Organization took cognizance of his complaint and registered an FIR bearing No. 121/2011 for the commission of offences punishable under Section 5 (2) Prevention Act, 2006 and Section 161 RPC with which the investigation commenced. A team was constituted to lay a trap on the accused. The services of an independent witness were sought from the Social Welfare Officer, Kashmir Srinagar. A Junior Assistant of the said Department, Shri Shujat Hussain was deputed to associate in the pre-trap and post-trap proceedings. During the course of investigation an amount of Rs. 10,000/- consisting of twenty currency notes of the denomination of Rs. 500/-each were produced before the trap team by the complainant which he intended to pay as illegal gratification to the accused on demand. The currency notes produced by the complainant were treated with phenolphthalein powder. These were handed over to the independent witness immediately. The independent witness after counting the currency notes noted down their numbers and subsequently put these notes in the pocket of the complainant, who was advised to pay them to the accused on demand. The complainant was advised not to touch the currency notes till such time that the accused demands the bribe from him at the spot. Before proceeding on spot, a practical demonstration was conducted to show the effect of phenolphthalein powder smeared on the currency notes produced by the complainant. A solution of sodium carbonate was prepared and a vigilance Officer dipped the fingers of his hands in the said solution. On doing so, the colour did not change. Thereafter, the independent witness, who had touched the said currency notes dusted with phenolphthalein powder was asked to dip the fingers of his hands in the said solution. On doing so the colour of the solution changed into pink. On doing so, the colour did not change. Thereafter, the independent witness, who had touched the said currency notes dusted with phenolphthalein powder was asked to dip the fingers of his hands in the said solution. On doing so the colour of the solution changed into pink. After explaining the effect of this this chemical reaction to the members of the trap team including the independent witness, the pink coloured solution so obtained was preserved and sealed in a bottle which was seized on spot. In this regard, a memo of demonstration was prepared on spot which was signed by the witnesses. Before leaving the office, the members of the trap team washed their hands with soap and they were given appropriate instructions. After completing the pre-trap proceedings the trap team accompanied by the complainant Bashir Ahmad Koul and the independent witness proceeded towards the spot, i.e., the Office of the Directorate of CA & PD, Srinagar. Immediately after reaching the spot, the members of the trap team were positioned appropriately. The vehicle was stopped ahead of the said location. The complainant and the independent witness entered into the building housing the Office of the Directorate of CA & PD, Kashmir, Srinagar, where the said Joint Director was officiating. After a few minutes, the complainant came out from the said office and gave the pre fixed signal to the members of the trap team about the handing over of the bribe money to the accused. The trap team immediately swung into action and caught hold of the accused on spot. The post trap demonstration was conducted in presence of the independent witness and the other witnesses. During the post trap demonstration, a solution of sodium carbonate was prepared in water and the trap laying officer dipped the fingers of his hands in the said solution. On doing so, the colour of the solution did not change. Thereafter, the accused Mohammad Ashraf Wani was asked to dip the fingers of his hands in the same solution and on doing so, the colour of the solution changed into pink. The solution so obtained was preserved in a bottle sealed and seized on spot. The trap money of Rs. 10,000/- was recovered from the drawer of the table of the accused. The solution so obtained was preserved in a bottle sealed and seized on spot. The trap money of Rs. 10,000/- was recovered from the drawer of the table of the accused. The pocket wash of the jacket worn by the accused at the moment was conducted which tested positive and was preserved in a bottle which was sealed and seized on spot. The currency notes recovered from the accused/appellant were tallied with the numbers already noted on the pre-trap memos and they were found to be the same. The jacket worn by the accused was seized on spot. The file under letter No. DCAPDK/AD (Gbl/Sgr (R)/11/3601 dated 22.11.2011, D.O No. 226/MLC dated 19.11.2011 in Photostat, Ref. No. 786/11 dated Nil in Photostat, Photostat copy of the letter head of Sarpanch Mohammad Yousuf Rather and Photostat copy of the application of Bashir Ahmad Shah, were recovered and seized from the Office of the accused Joint Director and the accused was arrested on spot. The arrest memo, the site plan and the seizer memos were prepared on spot. The accused was subjected to medical checkup. The statements of the witnesses under Section 164-A Cr. PC were recorded before the 2nd Additional Munsiff, Srinagar. The three seized/sealed pink colour bottles were got re-sealed through Executive Magistrate Ist Class, Srinagar. These was sent to the FSL on 10.12.2011 for chemical opinion. The expert opinion was received and it stated that the phenolphthalein and sodium carbonate was detected in the seized, sealed solution. During the investigation, it also came to the fore that the accused was dealing service matters of the Subordinate employees of CA & PD Department, Kashmir and was authorized to move the proposals for their transfer/posting. It was also found that the accused demanded and accepted illegal gratification of Rs. 10,000/- from the complainant for the issuance of his posting orders. On the culmination of the investigation of the case, a charge sheet in terms of the Section 173 Cr. PC was laid against the accused/appellant before the competent Court for the commission of an offence punishable under Section 5 (2) J&K PC Act, Svt. 2006 read with Section 161 RPC. The accused/respondent was charged with the commission of offences as detailed in the charge. By order dated 08.10.2012 of the trial Court, the accused/respondent was charged for the commission of offences as detailed and substantiated in the charge. 2006 read with Section 161 RPC. The accused/respondent was charged with the commission of offences as detailed in the charge. By order dated 08.10.2012 of the trial Court, the accused/respondent was charged for the commission of offences as detailed and substantiated in the charge. The accused pleaded not guilty to the charge and, accordingly, the trial Court directed the prosecution to produce the evidence at trial in support of its case. The prosecution examined as many as thirteen witnesses in support of its case, where after the prosecution evidence was closed by order dated 10.06.2017. After closing the evidence of the prosecution, the accused/appellant was examined in terms of the provisions incorporated in Section 342 Cr. PC. The accused/respondent denied the allegations levelled against him by the prosecution. He pleaded his innocence and did not offer to produce any evidence in defence. The case ended with the conviction of the accused by judgment dated 25.08.2017 of the trial Court. 3. I have head the arguments advanced at the Bar and the material on record has also perused by me. 4. The core issue that requires to be considered and determined herein this appeal is whether, while recording the judgment of conviction and sentence, the prosecution evidence has been appreciated, analyzed and scanned in the right perspective. The trial Court has recorded the entire evidence in its breadth and length in the impugned judgment and the same does not require to be repeated and reiterated here. The trial Court, as is clear from the impugned judgment, has after taking into consideration the entire evidence adduced by the prosecution, come to the conclusion that the prosecution has succeeded in proving the charge against the accused. It also held that the accused by abusing his power and position as a public servant demanded and accepted illegal gratification from the complainant in order to favour him by issuing his transfer/adjustment order. The trial Court also opined that the ingredients of the offences for which the accused has been charged are squarely met and, therefore, he is convicted for the commission of the offences levelled against him. 5. The trial Court also opined that the ingredients of the offences for which the accused has been charged are squarely met and, therefore, he is convicted for the commission of the offences levelled against him. 5. Before adverting to the evidence adduced by the prosecution and appreciated by the learned trial Court, it will be pertinent to state that the basic and necessary ingredients of the offences under the wharf and woof of which the case of the accused has been folded, the prosecution has to establish that there was a demand from the accused for the payment of bribe; the accused accepted it and it was recovered from the possession of the accused. All these three ingredients have to be established by the prosecution and the mere recovery of money from the accused cannot and shall not mean that the accused has demanded and accepted the bribe. Demand and recovery of the bribe money are the pillars and essentials, within the framework of which, the Prosecution has to prove its case against the accused in a case of bribe. Proof does not mean and convey proof by rigid mathematical demonstration, but it must be such on the basis of which a reasonable and a prudent man can come to the conclusion that the offence, the commission of which has been imputed to the accused, is proved against him. Recovery of the bribe money only cannot fasten the criminal liability unto the accused. The law evolved on the subject by the Apex Court of the country has been consistent. In Suraj Mal v. State, reported in 1979 (4) SCC 725 , the Apex Court held that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused, when the substantial evidence in the case is not reliable. In M. Narsinga Rao v. State of AP, reported in 2001 (1) SCC 691 , the Supreme Court viewed that we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us, the said aspect has been dealt with at length (Madhukar Baskar Rao Joshi v. State of Maharashtra 2000 (8) SCC 751). In this judicial precedent, the Supreme Court held that it is not enough that currency notes were handed over to the public servant to make it acceptance of gratification and the Prosecution has a further duty to prove that what was paid amounted to gratification. In the case of State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, reported in 2009 (15) SCC 200 , the Supreme Court held that indisputably the demand of illegal gratification is a 'sine qua non' for consideration of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on record in their entirety. In State of Kerala and Another v. C.P. Rao, reported in 2011 (6) SCC 450 , the Apex Court envisioned that mere recovery of tainted money is not sufficient to raise a presumption of guilt, unless it is shown that the accused voluntarily accepted the money knowing it to be a bribe. The authoritative pronouncements of the law laid down on the subject by the Apex Court of the country make it abundantly clear that the burden of proving the case in all the fours rests primarily on the Prosecution and it cannot be diluted. The demand and acceptance of illegal gratification by the accused has to be proved and established by substantive evidence. This position has also been explained and elucidated in the law laid down by this Court in 1963 K.L.J.1 para "26" of which is germane in the context of decision of the instant case. To this is added the observation made in the law laid down in 2000 Cr. L. J. 1882 wherein it has been held that it is for the prosecution to prove that there was a demand of money which was not legal. In other words, it means that the public servant was demanding illegal gratification in respect of an official act and he in fact received or obtained the money as illegal gratification, by corrupt means or by abusing the official position as a public servant. The judgment further directs that the recovery of the money dehors of the demand would not be sufficient to convict the accused. 6. The judgment further directs that the recovery of the money dehors of the demand would not be sufficient to convict the accused. 6. The trial Court after giving a resume of the statements of the witnesses produced by the prosecution in support of its case viewed that the accused Joint Director, CA & PD, was approached by the complainant for his posting/adjustment and the accused demanded Rs. 15000/- as bribe from the latter. The accused accepted the tainted currency notes amounting to Rs. 10,000/- as bribe from the complainant when the complainant called on him during the course of the trap laid at his office on 24.11.2011 for the said purpose. In this regard, the statement of the complainant that the accused initially refused to accept the money and then put the bribe money into the pocket of the accused clearly shows his acceptance of bribe by conduct. After handing over the bribe money to the accused, the complainant walked out of the room and thereafter the tainted money was recovered from the drawer of his office table which points out that the accused removed the bribe money from his pocket and put it into the drawer. The pocket wash of the accused taken on spot in a separate solution of sodium carbonate tested positive for the presence of Phenolphthalein powder and this confirmed that the accused as a matter of fact handled the tainted currency notes. The defence of the accused that the bribe money was put forcibly into his pocket without there being any demand from his side and that during the scuffle, he might have touched those notes is not tenable being not supported by any circumstance or his conduct. The entire course of transaction also belies such an interference. The Court further held that the accused has not rebutted the prosecution evidence and has failed to bring anything on record that would demolish the credibility of the statements of the prosecution witnesses. He has simply banked upon the contradictions as these exist in the statement of the complainant. There is no other reason or justification to disbelieve, discard and disregard the prosecution evidence which is clear, consistent and trust worthy. 7. The above analysis and conclusions have been drawn by the trial court on the basis of the evidence recorded at the trial. There is no other reason or justification to disbelieve, discard and disregard the prosecution evidence which is clear, consistent and trust worthy. 7. The above analysis and conclusions have been drawn by the trial court on the basis of the evidence recorded at the trial. The factum of demand and acceptance of money on the part of the accused and its recovery as is reiterated here constitute the sheet anchor of the case and it is for the prosecution to prove and establish these essential ingredients of the offences under Section 161 RPC and 5 (1) read with Section 5 (2) of the Prevention of Corruption Act by corroboration from the independent witnesses. The star witness to corroborate the statement of the complainant is the shadow witness, named Sajjad Husain. He has in his statement stated that when the members of the trap team reached at the spot, they spread in the vicinity of the office of the accused/appellant. The complainant was directed to go into the office of the accused/appellant along with him. They went upstairs. The complainant entered into the office room of the accused. He remained outside and a vigilance man stayed at the staircase. After sometime the complainant came out. He passed on the pre fixed signal and all of them rushed into the office of the accused. The accused was returning from the bathroom. The vigilance officers carried out the search. They recovered the bribe money from the drawer of the table of the accused/appellant. On the search of the person of the accused, an amount of Rs. 8,200/- was recovered. In his cross examination, he has stated that he met and saw the complainant for the first time on the day he was introduced to him by the team of the Vigilance Organization. He does not know whether anyone else was in the room or whether the accused was on his chair. When he along with others entered into the room, the accused was coming out from the bathroom. Some two to three persons were already in the room. They were not known to him. He does not know what transpired between the complainant and the accused during their conversation. It is correct to state that the accused neither demanded any money nor accepted it in his view and presence. Some two to three persons were already in the room. They were not known to him. He does not know what transpired between the complainant and the accused during their conversation. It is correct to state that the accused neither demanded any money nor accepted it in his view and presence. He does not know who kept the bribe money in the drawer of the table. 8. The shadow witness, i.e., star witness projected by the prosecution to prove the ingredients of the offences with which the accused/appellant has been charged has turned the entire prosecution case topsy turvey. He has not in any manner whatsoever supported the prosecution version to the effect that the accused/appellant demanded and accepted the bribe money from the accused in his view and presence. The shadow witness has categorically and emphatically stated that he did not hear the conversation of the complainant and the accused and that the accused neither demanded nor accepted bribe in his presence. 9. As regards the complainant namely, Bashir Ahmad Koul, he has stated in his statement that he went to the office of the accused situated at Shaheed Gunj, Srinagar. He requested the orderly in the office of the accused to allow him access to the accused. He refused and asked him the purpose of his visit. He told the orderly that he has to make the request for his posting. The orderly told him that it will be done on payment of an amount of Rs. 15,000/-. He left the office in disgust. He has been dubbed and declared hostile by the prosecution and in his cross examination, he has stated that he was attached on the basis of a complaint but he does not know whether or not any inquiry was conducted against him. He has further stated that he never met the Joint Director personally and it was the orderly in his office, who demanded an amount of Rs. 15000/- from him, which amount was slashed down to Rs. 10,000/- on persuasion. He was instructed by the authorities of the Vigilance Organization, Kashmir, not to state and divulge the name of the peon in the compliant and he reduced the complaint, into writing, accordingly. He has further stated that Sajjad Hussain stopped outside the office of the accused. The accused refused to accept the money. 10,000/- on persuasion. He was instructed by the authorities of the Vigilance Organization, Kashmir, not to state and divulge the name of the peon in the compliant and he reduced the complaint, into writing, accordingly. He has further stated that Sajjad Hussain stopped outside the office of the accused. The accused refused to accept the money. He forcibly pushed it into the left pocket of the jacket worn by the accused at that moment. Thereafter he passed the requisite pre-fixed signal to the independent witness, who in turn informed the members of the trap team, and they barged into the office of the accused/appellant. 10. The complainant has knocked the bottom out of the prosecution case. He has turned a volte face to the prosecution. The statement of the complainant that he pushed the tainted money forcibly into the pocket of the jacket of the accused which he was wearing at that moment turns turtle the entire prosecution edifice. In such an eventuality what can be presumed is that the accused neither demanded nor accepted the bribe money from the complainant out of his will and volition and above all in such a fact situation even if the colour of the solution turns pink, it is immaterial and as such of no consequence. The statement of the star witness projected by the prosecution, i.e., the shadow witness does not lend any credence or support to the prosecution case inasmuch as he has in unequivocal terms stated that he did not see the accused demanding and accepting the bribe from the complainant nor was he present there. On the face of the statements of these two witnesses as also taking into consideration the fact that no other witness has witnessed the sequence of the demand and the acceptance of bribe money as alleged by the prosecution, the appeal of the appellant requires to be allowed on the analogy of the law evolved and laid down on the subject by the Apex Court of the country in a catena of judicial pronouncements as also in the case of B. Jayaraj v. State of A.P. reported in 2014 (13) SCC 55 , the relevant excerpts of which germane to the issue are reproduced herein below: "8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. 11. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. 11. Neither the complainant nor the shadow witness have supported the prosecution case in its material particulars that is regarding the demand and acceptance of the bribe money by the accused. The prosecution has not examined the witnesses, who were present in the office of the accused (as stated by the shadow witness in his statement) when the bribe money as alleged is said to have been paid to the accused by the complainant. The evidence of the shadow witness is unworthy of credit. On a close appreciation of the testimony of the members of the raiding party, they have not, in any manner whatsoever, pleaded for the Prosecution version that the demand and acceptance of the illegal gratification was made by the accused/appellant in their presence. The complainant has stated it in unequivocal terms that it was the Orderly, who demanded the money from him. He has not stated that any demand for the payment of bribe emanated from the accused/appellant. This version is consistent with the innocence of the accused/appellant buttressed with the fact that the shadow witness did not witness the crime. Thus, on the evaluation of the evidence tendered at the time of trial and the proposition of law evolved in the judicial dictums cited above, the Prosecution has failed to rebut the presumption of the innocence of the accused/appellant. The complaint and the FIR are not substantive pieces of evidence. These can be merely used for contradicting and corroborating the witness. 12. In view of the preceding analysis, the learned trial Court has not been correct in holding that the demand alleged to have been made by the accused and the acceptance of the bribe by him has been proved. These can be merely used for contradicting and corroborating the witness. 12. In view of the preceding analysis, the learned trial Court has not been correct in holding that the demand alleged to have been made by the accused and the acceptance of the bribe by him has been proved. Mere possession and recovery of currency notes from the accused without proof of demand and acceptance cannot be construed to mean that the offences levelled against the accused are proved and to crown it all even the recovery of the currency notes pales into insignificance in view of the fact that the same is said to have been made from the drawer of the office of the accused and not from the search of his person. 13. Viewed in the context of what has been said and done above, the appeal of the appellant is allowed, as a corollary to which, the accused is acquitted of the charges levelled him and the impugned judgment dated 25.08.2017 passed by the learned Special Judge, Anti-Corruption, Kashmir Srinagar is set aside. 14. The record of the trial Court shall be sent back along with this order.