Union Territory of Jammu & Kashmir vs Asif Ali

This Criminal Acquittal Appeal has been preferred by Appellant-UT of J&K, against judgment dated 30.06.2020 (‘impugned judgment’) passed by learned Special Judge Anti Corruption Kathua (‘trial Court’) in File No.10/Sessions titled ‘State V. Asif Ali’, whereby the trial court dismissed the case and acquitted the respondent herein as accused, of the charges under Sections 5(1)(d) read with 5(2) of J&K PC Act Svt. 2006 and Section 161 RPC.

Having been aggrieved of the acquittal, the appellant-UT of J&K after obtaining sanction to file appeal vide Govt. Order No. 2936-JK(LD) of 2020 dated 17.12.2020 preferred this appeal, assailing the impugned judgment on the following grounds:

Mr. Raman Sharma, learned AAG argued that trial court has passed not only an erroneous but illegal judgment, while appreciating the prosecution evidence brought on record wrongly, though the appellant while prosecuting the respondents had brought on record sufficient oral and documentary evidence, which established the commission of the offences of charges by the respondent/accused and prayed that the impugned judgment dated 30.06.20220 passed by the court of learned Special Judge Anti Corruption Kathua, whereby the respondent has been acquitted of the charges under Sections 5(1)(d) r/w 5(2) of J&K PC Act Svt. 2006 and Section 161 RPC, be set-aside and respondent be convicted of the proved charges and sentenced.

He further argued that proof of ‘demand’ and ‘acceptance’ of illegal gratification by a public servant, as a fact in issue, by the prosecution is a ‘sine qua non’ in order to establish the guilt of the accused public servant u/s 7 & 13(1)(d) (i) & (ii) of the Act; that testimony of a witness in a criminal trial cannot be discarded, merely, because of minor contradictions or omissions, only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. In support of his contentions, learned AAG has relied upon judgment of the Supreme Court in ‘P. Sarangapani V. State of Andhra Pradesh’ reported as AIR 2023 Supreme Court 4739 and ‘Neeraj Dutta V. State (Govt. of NCT of Delhi) reported as (2023) 4 SCC 731, and decision of this court in the case titled ‘Dharam Paul V. State of Jammu & Kashmir’ reported as 2005 Legal Eagle (J&K) 472.

Mr. Gagan Basotra, learned senior counsel assisted by Ms. Navdeep Kour, Adv. appearing on behalf of the respondent, on the other hand, argued that the learned trial court has passed a well reasoned judgment, which does not brook any interference; that the prerequisites for an offences under Section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act, Svt. 2006 is the ‘demand’ at the initiate stage, as well as, the time of trap which is completely missing.

He further argued that the evidence adduced by the prosecution in the present case was neither sufficient nor cogent to establish the guilt of the accused; that in order to prove its case and establish the guilt of the accused in a case for offence made punishable under Section 5(1)(d) read with 5(2) of JK PC Act, 2006, it is incumbent upon the prosecution to establish all the three ingredients, namely, demand, acceptance and recovery by convincing and trust-worthy evidence and the failure of the prosecution to prove any of these three ingredients would result in failure of its case; that there was absolutely no evidence to establish any of the said three ingredients; that the evidence of the complainant is far from satisfactory and fails to inspire confidence; that it is not established by the prosecution in its case, as to what role did the accused had in processing of the bills and so the entire genesis of this case is shrouded in mystery; that in the absence of corroboration/supporting evidence, the testimony of the complainant in a trap case should not be placed reliance upon; that the procedure adopted by the investigating agency in collecting the bills/vouchers, the payment whereof was purportedly unpaid, was unknown to law; that the prosecution case is not free from doubts. In support of his arguments, he has placed reliance on the judgments in the cases, ‘B. Jayaraj Vs. State of Andhra Pradesh’ reported as 2014 AIAR (Criminal) 515, ‘P N Dogra v. CBI Jammu’ reported as 2009 (1) JKJ 384, wherein, it has been held that recovery of tainted money vis-à-vis evidence of demand and payment, presumption of gratification cannot be raised once demand of the bribe is clouded with doubt, rather not supported by the prosecution witnesses, cited to that extent.

Heard learned counsel for the parties, perused the record and considered.

Brief facts, shorn of unnecessary details, are that:

A case was registered in P/S VOJ (now ACB) on 30.01.2011 on the basis of a written complaint lodged by Mohd. Ayoub S/O Ali Mohd R/O Malhar Tehsil Billawar District Kathua alleging therein that respondent-Asif Ali, the then Jr. Engineer, RDD Kathua demanded bribe amount of Rs.8000/- as 20% commission from the complainant for passing vouchers regarding remaining payment of executed work of construction of CIC building at Malhar allotted to him by Rural Development Department;

That during the course of investigation, a trap team of officers of Vigilance Organization, Jammu was constituted to lay the trap. The services of two independent witnesses were sought who were associated with the proceedings as independent witnesses; that during pre-trap proceedings, the complainant produced Rs.8,000/-which were to be paid as illegal gratification to the accused on his demand; that these currency notes were treated with phenolphthalein powder;

That after completing pre-trap proceedings, the trap team members accompanied by the complainant and the independent witnesses proceeded towards Bus Stand Billawar, where bribe was fixed to be paid; that complainant informed the accused that he is reaching Bus Stand on his motorcycle and asked him to come there; that on reaching Bus Stand, accused demanded and accepted the bribe money from complainant; that accused retained Rs.2000/- and returned Rs.6,000/- which was supposed to be paid to him after release of payment; that the shadow witness, in the meantime, passed the pre-fixed signal regarding transaction of bribe money; that trap team caught hold of the accused while accepting the bribe money of Rs.2000/- from the complainant;

That the bribe amount of Rs.2000/- was recovered from accused and hand wash/pocket wash was done during post trap proceedings; that the solutions obtained during investigation were kept in bottles, duly sealed and seized on spot and later sent to FSL for expert opinion, which was received in positive; that prima facie case for commission of offences punishable U/S 5(1)(d) r/w 5(2) of J&K PC Act, 2006 and Section 161 RPC, was established against the accused and after obtaining sanction vide Govt. Order No.47 GAD(Vig) of 2011 dated 02.08.2011, charge sheet was laid before the trial court on 25.08.2011;

That the trial court framed the charge against accused on 23.09.2011; that accused pleaded innocence and claimed trial; that the trial court after conducting the trial vide impugned judgment dated 30.06.2020 acquitted the accused from the charges levelled against him.

Complainant-Mohd. Ayub made a written complaint (Ext.-P1) to the Vigilance Organization, Jammu on 30.01.2011 alleging that against the release of payment of the work executed by him of the construction of CIC building at Malhar, respondent, as Junior Engineer in the Rural Development Department, had demanded a sum of Rs.8,000/- as gratification, which was about 20% of the payment due to him as commission; on receipt of this complaint, a case was registered vide FIR No.2/2011 at P/S VOJ for the commission of offences punishable under Section 5(2) of the PC Act.

Consequent to the registration of the case, the Vigilance Organization constituted a trap team to nab the accused red handed; the team comprised of Dy.SP H K Nazir (PW-6), Inspectors Muneer Ahmed (PW-15), Deepak Tufchi (PW-10), Rattan Lal (PW-8), Bhushan Lal (PW-13), Shafiq Ahmed (PW-5) and Ct. Neeraj Sharma, (PW-9), two independent witnesses, namely, PW-3 Khalid Hussain, Lecturer Arabic Studies and Som Nath (PW-4), Lecturer of Commerce in Maharaja Hari Singh Higher Secondary School, Jammu were also associated. After completing the requisite formalities and treating the currency notes with phenolphthalein powder, the trap team proceeded to the place allegedly fixed by the accused and the complainant for payment of the amount. The trap laying officer (TLO) directed PW-4 Som Nath to act as a shadow witness and remain as close as possible to the complainant to eavesdrop the conversation as well as notice the passing of the bribe amount to the accused and inform the other Vigilance team members about the payment of the bribe amount to the accused by messaging his head.

On reaching Billawar, the complainant (PW-1) and shadow witness (PW-4) Som Nath, Shafiq Ahmed and Neeraj Sharma were asked to go by walking towards Bus Stand Billawar and the remaining members of the trap team, after some time, also proceeded towards Bus Stand Billawar, in their vehicles. The vehicles were parked at the Chaugan near Shiv Ji Temple and the trap team members took their positions; after some time, the accused came there on motorcycle and called the complainant and both of them went to an open passenger shed at the Bus Stand, the shadow witness took his position in front of said passenger shed wherein the complainant and said individual were sitting and the rest of the team members also took their positions at appropriate distances; after some time, the shadow witness informed TLO and the members of the trap team about the acceptance of bribe money by the accused, by way of pre fixed signal; the trap team reached on spot and the complainant and the shadow witness identified the accused and stated that the accused had demanded and accepted Rs.2,000/-comprising of two currency notes, each of the denomination of Rs.1,000/-from the complainant and kept the same in the pocket of his jacket. They further told that the accused accepted Rs.8,000/- and after counting the same, he returned an amount of Rs.6,000/- to the complainant with the direction that he will accept this amount only after release of the payment to the complainant.

The accused was enquired by the TLO about the vouchers given to him by the complainant, who replied that those vouchers were at his place. After completing post trap proceedings and with positive tests, the trap team proceeded to Dak Bunglow Billawar, where VLW Shamas Din brought the record/vouchers submitted to the accused by the complainant from the residence of the accused; the documents were also seized.

After competing necessary formalities, the investigation was culminated into charge sheet against the accused. The accused was charge sheeted by the learned Special Judge Anti Corruption Jammu vide order dated 23.09.2011 for the commission of offences punishable under Section 5(2) and 5(1)(d) of the PC Act and offences under Section 161 of RPC. On denial of charge by the accused, prosecution examined as many as 19 witnesses out of 20 cited in the prosecution list.

To prove the charge against the accused/respondent, the ingredients of demand and acceptance of the amount of bribe are required to be proved and in a trap case, the next question that arises for consideration is that whether recovery of the bribe amount from the possession of the accused has been proved or not. The Statutory presumption has also to be kept in mind while deciding the criminal case regarding corruption by a Special Court.

PW-Som Nath, who had been assigned the role of shadow witness had stated that the complainant and accused had spoken to each other in Kashmiri language, with which, he was not conversant, therefore, he was not in a position to say that whether or not the accused made the demand and then accepted bribe amount during the trap proceedings. The inability or failure on the part of the shadow witness to support the case of the prosecution on the vital aspects of demand and acceptance of bribe amount inflicts a crucial blow to the case of the prosecution. The other independent witnesses, namely, Khalid Hussain, too, has not stated anything on these vital aspects of the case in his evidence. All he has stated is that the accused came to the bus stand, he (the accused) and the complainant went to the passenger shed, where they sat and gossiped for about twenty minutes and thereafter PW-4 (Som Nath) made a pre-fixed signal, therefore, PW-3 as an independent witness has also not deposed anything about the demand and acceptance of the bribe amount by the accused.

In this situation of the matter, it is only the evidence of the complainant/first informant (PW-1), which remained for the prosecution to fall back upon as far as question of demand and acceptance of the bribe amount is concerned. Whether the solitary evidence of the complainant/first informant can be placed reliance upon to prove the allegation of demand and acceptance of the bribe amount, once the shadow witness fails to support the case of the prosecution, is an important question to be looked into. The sole statement of the complainant/first informant can only be placed reliance upon if the same is of sterling quality and if it is not so, then independent corroborative evidence is must. Independent corroboration to the evidence of the complainant is generally required by the court, if not as a rule of law but at least a rule of caution and prudence.

The positive case of the prosecution was that accused demanded a sum of Rs.8,000/- as bribe from the complainant purportedly for granting approval to some of the bills/vouchers, the payment whereof had remained unpaid and irked by the said conduct of the accused, the complainant made the complaint and got the present case registered against him, however, in his deposition, the complainant/first informant deposed that the accused had returned a sum of Rs.6,000/- after receiving amount of Rs.8,000/- to the complainant during the trap proceedings and, that too, without any request or claim made on the part of the latter, is something which does not appeal to the common sense as to the accused, who was demanding bribe of Rs.8,000/- without any request from the complainant reduced the amount to be received at Rs.2,000/- after receiving the amount of Rs.8,000/-. It is not only surprising but at the same time unbelievable that a person whose conduct was of such nature, which forced the complainant to file a complaint against him, himself returned a substantial part of the bribe amount to the complainant, that too, without much persuasion in that behalf. There being no explanation offered by the complainant/first informant regarding the return of a sum of Rs.6,000/- out of bribe amount in absence of any corroborative/supportive evidence, it does not appear justifiable in view of sequence of events projected by the complainant/first informant (PW-1) and is thus sufficient to cast a serious doubt on his evidence as well.

The Hon’ble Apex Court in a case titled ‘C. Sukuraman V. State of Kerala [2015 (1) Crimes 130 (SC)] held that the fact that out of Rs.1500/- that was allegedly demanded as bribe money from the complainant, an amount of Rs.250/- was paid by him out of which the appellant allegedly managed to return Rs.20/- to the complainant, since he had no money left, made their lordships pause and ponder over the facts and circumstances of the case, which, casts a serious shadow of doubt on the sequence of events as narrated by the prosecution. The prosecution in a corruption case is under a duty to prove three ingredients of demand, acceptance and recovery of bribe amount by unimpeachable evidence and failure to establish any of the said ingredients would result in failure of the case of prosecution itself. In other words, mere acceptance of amount allegedly by way of illegal gratification or recovery thereof without a proof of payment, ipso facto, would not be sufficient to bring home the charge against the accused. The contention of the learned AAG that once the bribe amount has been recovered from the possession of the accused, a presumption can be drawn that the bribe amount was received for doing or forbidding to do any official act and, therefore, strict proof of demand was not imperative, again, seems to be misplaced as a bare perusal of Section 4(1) of the J&K Prevention of Corruption Act, 2006, is enough to manifest that this rebuttable presumption is not available to the prosecution for proving such a charge.

During trial, the claimant/first informant (PW-1) had admitted that he had received the substantial part of his due amount with regard to the execution of work undertaken by him. The presumption that Vigilance Organization has not taken pains to bring on record the documentary evidence with regard to such payments from the office of BDO Lohai Malhar, the investigating officer PW-17 had himself admitted that he had not seized any record from that office which could evidence the fact that what was the total amount due to the accused; how much he had received and what was the balance payment to him. PW-12 Mohan Lal, a senior assistant in the office of BDO Lohai Malhar, though was not sited as witness, exactly on that point had deposed that the record produced by him marked as ML-1, ML-2, ML-3, ML-4 is with regard to records of work executed under the control of the accused, transfer order and service book of the accused, the work order and the measurement book, respectively, but the said records, as pointed out by the trial court, did not pertain to the payment due to the complainant/first informant, however, this witness himself admitted during his examination that the entire payment, which was due to the complainant/first informant on account of the construction of the CIC building, had been made to him by 31.03.2010, and to that extent a certificate marked as ML-5 was issued by the BDO concerned and that nothing remained unpaid to the complainant regarding the said work; that he had not executed any other work for the department after execution of the aforesaid work. His statement was also supported by defence witness Mohd. Latif (DW-2), who had stated that he had worked as Secretary Panchyat (VLW-Malhar) w.e.f. September 2009 to June 2012; that the work order for the execution of the construction of CIC building at Malhar was issued in the name of complainant and the said construction was completed in the month of March 2010 and that nothing remained unpaid. DW-Mohd. Latif had also stated in his evidence that all the purchases in connection with the construction of the building are made through Panchayat Secretary (VLW) and the person to whom the work is allotted cannot make any purchase of his own and that the bills are to be submitted to the BDO concerned through Panchayat Secretary and that the accused posted as Junior Engineer was in no way connected in the processing of the bills/vouchers. With regard to the seizure of the vouchers/bills from the residence of the accused as produced by PW-3 Shamas Din, it will not be out of place to mention that none of the members of the trap team had visited the place of residence of the accused and they only believed the statement of PW-3 (Som Nath) with regard to the documents brought from the residence of the accused, which is also a serious infirmity in the case.

For the afore-stated reasons it can be safely held that the appellant had failed to prove the necessary ingredients of demand and acceptance of the amount of bribe, so as to constitute and prove the commission of any of the offences of which the accused/respondent was charged.

The Apex Court in a case titled ‘Dileepbhai Nanubhai Sanghani V. State of Gujarat & Anr’ reported as 2025 LiveLaw (SC) 273 held that constitution bench of the Apex Court in ‘Neeraj Dutta v. State (Govt. of NCT) Delhi’ reported as (2023) 4 SCC 731 held that proof of demand (or an offer) and acceptance of illegal gratification by a public servant as a fact in issue, in a criminal proceeding is a, sine qua non, to establish the guilt of the accused public servant under Sections 7 and 13 of the Act; that unless proof is offered to the satisfaction of the Court that there is a demand and acceptance of illegal gratification, the statutory presumption would not arise. All the prosecution witnesses who had been named by the complainant from whom the initial demand of bribe was made had turned hostile, as noticed above, and did not support the prosecution story during their examination before the court.

The Apex Court even earlier in a case of ‘State of Maharashtra V. Dhyaneshwar Laxman Rao Wankheda’ reported as (2009) 15 SCC 200 has held as under:

In view of aforesaid authoritative law laid down by the Apex Court and in absence of any incriminating prosecution evidence so as to substantiate the fact of demand of bribe, no presumption can be drawn against the respondent/accused so as to record his conviction.

Having regard to the discussion made hereinabove and aforestated reasons, the acquittal appeal filed by the appellant is found to be without any merit and substance. The impugned order has been passed perfectly in consonance with legal parameters in the backdrop of the prosecution evidence and does not call for interference by this court invoking appellate jurisdiction. The judgment is, thus, upheld. The bail and personal bonds, furnished by the respondent, if any, during the pendency of this appeal are ordered to be discharged.

The CrlA(AS) No.7/2025 is, accordingly, dismissed along with connected application(s).