Pran Nath Koul and Another vs State and Another

Y.P. Nargotra, J.—The appellants were tried in the Court of learned Special Judge, Anti Corruption, Jammu for the commission of the

offences u/s 5(2) of Prevention of Corruption Act, 2006 read with Section 161 RPC, allegedly committed about 24 years ago. The case of the

prosecution was that complainant Mohammad Saleem S/O Shah Mohd R/O Mendhar lodged a complaint with the Additional Inspector General

of Police, Jammu on 12-4-1983, alleging therein that he was conducting the business of sale and purchase of fruits at Bhimber Gali, District

Poonch. On 22-10-1982 he met Constable Mohd Khaliq and ASI Pran Nath Koul, who told him that they were recruiting people in Police

Department and that the recruitment was possible only by spending money. There-after both of them went to Poonch and there-from returned on

24-10-1982. On that day the complainant paid them Rs 1500/- to them, on which they asked the complainant to see them at Jammu on 25-10-

1982. Accordingly on the next day, the complainant came to Jammu but could not trace out the accused. They however, met him on 7-11-1982 in

Police Lines, Jammu and there-from he was asked to go alongwith Constable Tasavar Hussain to the C.P.O for getting his order of appointment.

He went alongwith accused Tasavar Hussain to the office of C.P.O. Tasavar Hussain after taking a round of the office told him that he would have

to spend Rs 1000/- more. So he borrowed Rs 1000/- from one of his relations who was employed in BSF and paid the same to the accused

Tasavar Hussain. After taking the money the accused Tasavar Hussain asked the complainant to go back to his place where he would receive the

order of appointment but despite that he did not receive the order of appointment so he again came to Jammu 3/4 times but the accused threatened

him with dire consequences, if he asked for the return of the money.

The complaint of the complainant was forwarded by the Addl Inspector General of Police to SSP Jammu in consequence whereof the SSP

Jammu held preliminary inquiry on which the allegations were found by him to be prima-facie proved. The report of his preliminary inquiry was then

came to be forwarded to the Commissioner of Vigilance alongwith the statements of the witnesses, which resulted into registration of the FIR No.

175/1983 dated 20-11-1983. After completion of the investigation the charge-sheet against three accused namely, Pran Nath Koul, Tasavar

Hussain and Mohd Khaliq came to be filed. The learned trial Court framed the charges for the commission of said offences against the said

accused to which the accused pleaded not guilty and claimed trial.

Prosecution in order to prove the charges against the accused, examined PWs S/Shri Mohd Saleem, Sanjay Kumar, Mohd Javed, Niyaz Ali,

Jagdish Chander, Sharnaghat Singh, Bodh Raj Sharma, Mohd Nasir Khan and Shri Kuldip Khuda. The accused were being tried originally in the

court of 1st Additional Sessions Judge, Jammu. However, after the creation of an independent Court of Special Judge, Anti Corruption Jammu

vide SRO 121 of 1998 the case came to be transferred to the Court of Special Judge, Anti corruption Jammu.

During the pendency of the trial accused Mohd Khaliq absconded so proceedings against him under sections 87 88 read with Section 512

Cr.P.C were initiated. The appellants only faced the trial. The learned trial Court after appreciating the evidence of the prosecution and in the light

of the statements of the accused/appellants recorded u/s 342 Cr. P.C came to the view that offence u/s 5(2) Prevention of Corruption Act read

with Section 120B RPC stood established against the appellants and vide its judgment dated 21-12-2001 convicted and sentenced them to under-

go rigorous imprisonment for two years and to pay a fine of Rs 10,000/-each and in default of payment of fine to undergo further rigorous

imprisonment for six months for the commission of offence u/s 5(2) Prevention of Corruption Act. They were also sentenced to undergo further

imprisonment of two years and to pay a fine of Rs 10,000/- each for commission of offence u/s 120B RPC read with Sections 5(h) and 5(1)(d) of

the Prevention of Corruption Act and in the event of default in the payment of fine to further under go rigorous imprisonment for six months. Both

the substantive sentences however, were ordered to run concurrently.

Aggrieved by the judgment of the trial Court, the accused are in appeal.

The contention of the learned Counsel for the appellants is that the trial Court has not appreciated the evidence of the prosecution in its proper

perspective and has fallen in error in convicting and sentencing the ac-cused/appellants. It has been contended that the prosecution cannot be said

to have cogently and conclusively proved the guilt of the accused. The learned trial Court has committed an error in relying upon the shaky and un-

corroborated evidence of the prosecution witnesses. On the other hand the contention of Mr. B.S. Salathia, learned Additional Advocate General

is that from the evidence guilt of the accused has cogently been proved. He submits that there is ample corroboration in the evidence of the

prosecution witnesses to support the testimony of the complainant and therefore, the conviction and sentence of the accused/appellant at the hands

of the trial Court under law cannot be faulted with.

1 have gone through the evidence led by the prosecution.

It may be pointed out here that for appreciating the evidence of the prosecution, it is necessary to keep in view that the complainant in the case

is a bribe-giver. The bribe which he allegedly paid to the accused has not been recovered during the investigation of the case. It is only the ocular

evidence of the witnesses on which the prosecution sought to prove the guilt of the accused.

Criminal cases lodged against a public servant on the allegations of his having demanded and accepted the money as illegal gratification,

generally arise out of two types of complaints/FIRs. First type of complaint/FIR being that of a complainant who on the demand of bribe by a

public servant, before actually paying the bribe amount to him goes to the police and lodges the complaint/FIR and therein discloses the fact of

such demand of the bribe and enables the police to register the FIR and during investigation to arrange a trap and in the process apprehend the

accused public servant red handed immediately after his acceptance of the bribe. In such case the corpus delicate i.e. the bribe amount can also be

recovered. While the other type of the complaint/FIR is that of such a complainant who on demand being made, readily and willingly pays the bribe

amount to a public servant for due or undue favour and only if he does not get the favour promised for, he lodges the complaint/FIR against such

public servant. And in such case no recovery of the bribe amount comes to be made. Complainants in both the situations though enjoy the legal

impunity from prosecution for the offence of giving bribe but cannot stand at the same pedestal so far as their reliability and credibility of their

evidence in Court is concerned, because in the first case the assurance and necessary corroboration to his version can emanate from the fact of

recovery of bribe amount from the accused if proved but in the second case the version of the complainant cannot have any such assurance or

corroboration. In the absence of recovery of the bribe amount his version ordinarily would deserve to be looked upon with suspicion and for

reliability the Court shall have to look for strong corroboration from other trustworthy evidence from independent source for recording the

conviction of a public servant for having accepted the bribe. The conviction of a public servant on the basis of the testimony of such a complainant

even if supported by interested or his relation witnesses would be hazardous because in that case it would be very easy for an unscrupulous person

to get an honest but un-obliging officer, falsely implicated on allegations of corruption. A heavy duty is cast upon the Courts to protect an honest

officer from being harassed at the hands of an unscrupulous person.

With the above factors in view, now I would deal with the evidence of the prosecution which has been relied upon by the learned trial Court for

recording conviction of the appellants.

The complainant Mohd Saleem whose statement was partially recorded on 11-1-1989 firstly deposed that he knew the accused persons. He

was a Matriculate and had filed a complaint EXPW-MS against the accused in the Anti Corruption Department. He identified his signatures on the

said complaint dated 22-4-1983. He however, took up the stand that he had not given the bribe to the accused and while it was one Sakhi Mohd

S/O Mian Sayeda Khan to whom he had paid the money for getting him recruited in the Police through the accused. On the afore-said statement

the complainant was declared hostile by the prosecution and subjected to cross-examination. He admitted during cross-examination that he had

made a statement during the preliminary inquiry before the SSP Jammu initiated on his complaint EXPW-MS and that his statement EXPW-MS/1

was bearing his signatures. He denied the correctness of the statement. According to him in the statement it was wrongly stated that he had paid

the money to the accused Mohd Khaliq in presence of accused Pran nath Koul. According to him Mohd Khaliq was his relative and it was

wrongly written in the statement that on 7-11-1982 the Constable Mohd Khaliq asked him to accompany constable Tasavar Hussain to CPO and

get the order of appointment and that he paid Rs 1000/- to Tasavar Hussain, accused. He states that his statement made during inquiry was a

manipulated one. His further cross-examination on that day was deferred at the request of the C.P.O and came to be resumed on 16-2-1989.

On the resumption of his cross-examination on 16-2-1989 i.e. almost after more than a month he admitted the contents of his complaint and stated

that after his bail, accused Tasavar Hussain threatened him earlier and even on the day of his making the statement, after taking him out side the

Court room. At that time CPO had arrived and when the CPO was taking him inside the court room for being produced before the Presiding

Officer, the accused persons had caught hold of him and dragged him out. So being afraid he resiled from his complaint. He further stated that he

was no longer afraid after being in the court and then stated that in November, 1982 accused met him at Bhimber Gali for selling fruit; that accused

had told him that they were going to Poonch for making recruitment in the police and if he wanted to be recruited he should tell; that he told them

that his right arm is broken so how he could be recruited in the police, but the accused told him that with money every thing was possible and

there-after they demanded Rs 1500/-. He borrowed Rs 500/- from his brother Mohd Javed as he did not have that much money and had only Rs

1000/- with him; that his brother javed Mohd was an employee in a Canteen at Bhimber Gali. After obtaining the money from him he paid Rs

1500/- to Mohd Khaliq and Pran Nath Koul; that on the second day the accused brought him to the house of Mohd Khaliq at City Chowk,

Jammu; Mohd Khaliq was in his house and he told him that his work has been done. Then Tasavar Hussain also came and accused Pran Nath

Koul and Ab Khaliq handed him over to Tasavar Hussain and asked him to take him to CPO and get the order of appointment; that then he went

to CPO alongwith accused Tasavar Hussain who had a round of one or two rooms and then came back and told him that he would have to spend

more money and demanded Rs 1000/- more from him; that he paid Rs 1000/- to the accused which he had borrowed from his brother Niaz Ali

who was Lance Naik in BSF. Then the accused Tasavar Hussain told him to go back to his house so that his work would be done.

On being cross-examined by the accused he admitted that accused took from him Rs 1500/- at Bhimber Gali and Rs 1000/- at Jammu; that

Rs 1500/- was paid to accused Ab. Khaliq in presence of his brother Javed Mohd and Rs 1000/- to accused Tasavar Hussain at Jammu,

however, in presence of none. He admitted that when he paid Rs 1000/- to accused Tasavar Hussain at Jammu, accused Pran Nath Koul and

Abdul Khaliq were not with him. He also stated that at Bhimber Gali he had paid Rs 1000/- to accused Abdul Khaliq as Pran Nath Koul was not

known to him. Regarding the occurrence in which Rs 1500/- were paid by the complainant to accused Abdul Khaliq at Bhimber Gali, he stated

that occurrence had taken place in the month of November, 1982.

So from the statement of the complainant, it clearly transpires that firstly he resiled from his earlier version which he had disclosed in the

complaint and his statement u/s 161 Cr. P.C as well as in his statement recorded during preliminary inquiry and even on being cross-examined by

the prosecution after being declared hostile remained stuck to the said stand. It appears that confronted with such a situation the prosecution made

a request for deferring his further cross-examination which was accordingly deferred and was resumed after about a period of one month and

during the subsequent cross-examination he again shifted back to his original stand. From such shifting of his stands in the statement by the

complainant coupled with the fact that he himself is a bribe giver, his evidence for being relied upon would need strong corroboration from other

evidence of the prosecution witnesses. So far as the occurrence which took place at Bhimber Gali in which the complainant alleges that he paid Rs

1500/- as bribe to the accused Abdul Khaliq, who was in the company of appellant Pran Nath Koul, is concerned, according to the stand of the

complainant he had paid the money in presence of his brother Mohd Javed. PW Mohd Javed being his brother is a close relation of the

complainant. His evidence being the evidence of a close relation would require close scrutiny.

PW Mohd Javed in his statement has stated that in the year 1982 he was employed in Military Canteen at Bhimber Gali. Complainant Mohd

Saleem is his brother. Accused Abdul Khaliq and Pran Nath Koul came at Bhimber Gali and asked him to call his brother Mohd Saleem as they

had some work with him; that he went to his house, but his brother was not available there, so he kept a message that when he returns he should

be told that two persons were looking for him at Bhimber Gali; that after half an hour his brother came and then after talking to the accused came

to him and told him that they were demanding from him Rs 1500/- for getting him recruited in the police and that he had only Rs 1000/- with him,

so he should pay Rs 500/- from his salary; he got Rs 500/- from the owner of the canteen PW Sanjiv Kumar and paid the same to his brother,

who in his presence paid Rs 1500/- to the accused Abdul Khaliq in presence of Pran Nath Koul, where-after Pran Nath Koul told his brother that

his work would be done. He further stated that his brother went to Jammu on the same or on the next day and after coming back told him that

accused were demanding Rs 1000/- from him and that he had paid Rs 1000/- to accused Tasavar Hussain after getting the same from Niaz Ali.

Thus, according to Mohd Javed PW he obtained money from his employer PW Sanjiv Gupta and paid the same to his brother who in his presence

paid Rs 1500/- to accused Ab Khaliq who was in the company of appellant Pran Nath Koul.

PW Sanjiv Gupta in his statement admits that he had paid Rs 500/-to PW Mohd javed. However, in his cross-examination he has stated that

he had paid Rs 500/- to PW Mohd Javed on 26-10-1982 and regarding which he had made the entry in his account book which had been seized

by the police vide EXPW-SG. Now coming back to the complaint of the complainant on which the case of the prosecution is based, for the first

time the accused had met him at Bhimber Gali on 22-10-1982 while they were on their way to Poonch. It is stated in the complaint that both of

them returned on 24-10-1982 and on that day he had paid Rs 1500/- to them. It is significant to note that the complainant allegedly paid Rs

1500/- to accused Khaliq at Bhimber Gali on 24-10-1982. According to the stand of the complainant he had Rs 1000/- with him and Rs 500/- he

had borrowed from his brother PW Mohd Javed who had paid the same to him after getting the said amount from PW Sanjiv Gupta. PW Sanjiv

Gupta in categoric terms has stated that he had paid Rs 500/- to PW Mohd Javed on 26-10-1982. His version is supported by the entry made in

his account book. Thus, if it is accepted that PW Sanjiv Gupta paid Rs 500/- to PW Mohd Javed on 26-10-1982, it falsifies the stand of the

complainant as well as his brother PW Mohd Javid because if PW Mohd Javed had received the money on 26-10-1982 from PW Sanjiv Gupta,

there could not be any question of complainant's paying Rs 1500/- to accused on 24-10-1982. The version of the complainant that he paid the

amount of Rs 1500/- to the accused Ab Khaliq on 22-10-1982 for the first time sought the light of the day on 22-4-1983 when he lodged the

complaint. Thus, there is a delay in lodging the complaint. Why the complainant kept mum for such a long time there is no explanation. In his

complaint, the complainant has mentioned that he had borrowed Rs 1000/- for paying bribe to appellant Tasavar Hussain from one of his relation

Niaz Ali, but so far as his brother Mohd Javed is concerned, he has not said a word. The statement of PW Mohd Javed when is examined in the

light of the above facts, it appears that he is a planted witness and no reliance can be placed upon his testimony, in view of in-consistency in his

statement and the version of PW Sanjiv Gupta on the point of his obtaining Rs 500/- for onward payment to his brother Mohd Saleem,

complainant.

So far as the payment of Rs 1000/- which the complainant allegedly paid to the accused Tasavar Hussain, appellant is concerned, admittedly

there is no evidence to support him as the same was allegedly paid by him when there was no body present. There is thus no eye witness in whose

presence the complainant paid Rs 1000/- to the accused Tasavar Hussain. There is no recovery of the amount from Tasavar Hussain which can be

said to have been received by him from the complainant as a bribe. The sole testimony of the complainant in view of his changed stand and in the

absence of due corroboration cannot be made basis for holding him guilty for the offence.

The prosecution relied on the evidence of PW Niaz Ali who is also brother of the complainant and from whom he had received the said

amount of Rs 1000/- for onward payment to Tasavar Hussain for the purposes of corroboration to the evidence of complainant. The evidence of

PW Niaz Ali that he had paid Rs. 1000/- to the complainant does not and cannot advance the case of the prosecution. He may have paid the

money to the complainant, but this fact alone by itself cannot lead to the assumption that money received by the complainant from him was actually

paid to the accused Tasavar Hussain. The other prosecution witnesses have deposed about the manner in which the investigation was carried out.

Therefore, their evidence is only of a formal character.

The learned trial Court has not appreciated the evidence of the prosecution rightly and the evidence of the complainant and his two brothers

could not be relied upon to hold the appellants guilty.

For the reasons stated above, in my considered opinion the prosecution cannot be said to have proved its case beyond all reasonable shadow

of doubt against the accused/appellants. They are therefore, entitled to be acquitted. Accordingly they are acquitted of the changes. The judgement

passed by the trial Court impugned in these appeals shall stand set aside. The bail bonds of the appellants/ accused shall stand discharged.