Allowed

Showkat Hussain Koul v. State of Jammu and Kashmir through Commissioner/ Secretary to Govt, Public Works Dept

J&K HC6 Aug 2021CRMC/260/2018

Case brief

AI extract

What is this about?

The High Court quashed an FIR under the Prevention of Corruption Act and RPC. The court held that the complainant lodged the FIR with an ulterior motive to seek revenge after his contract was terminated. It found the proceedings vexatious and fell under Bhajan Lal's category of mala fide prosecutions due to the long, unexplained delay and absence of bribery allegations in the earlier writ petition

What did the court decide?

The impugned FIR No.05/2016 and all criminal proceedings emanating therefrom against the petitioner are quashed.

Showkat Hussain Koul Vs State of Jammu and Kashmir through… — Corruption | J&K HC (2021)

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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

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Reserved on:30.07.2021 Pronounced on:06.08.2021

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CRMC No.260/2018

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SHOWKAT HUSSAIN KOUL ... PETITIONER(S)

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Through: - Mr. A. H. Naik, Sr. Adv. With Mr. Zia, Adv.

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Vs.

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STATE OF J&K & OTHERS … RESPONDENT(S)

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Through: - Mr. B. A. Dar, Sr. AAG.

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CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

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JUDGMENT

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1) Petitioner has challenged FIR No.05/2016 for offences under Section 5(1)(d) r/w 5(2) and Section 4A of J&K Prevention of Corruption Act and 109 RPC registered with Police Station, Vigilance Organization Kashmir, Srinagar.

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2) The facts emanating from the record are that pursuant to e-tendering, the work pertaining to construction and maintenance of road from Salamabad to Gohalan, Stage-II, Phase-VI, Package No.JK00-57, was allotted by Chief Engineer, PMGSY (JKRRDA), Srinagar, to M/S Jehangir Steel Industries, Awantipora, Kashmir, through its proprietor Jahangir Ahmad Bhat, who happens to be the complainant in the instant case. The work was allotted to the aforesaid complainant in terms of the letter of

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acceptance bearing No.CE/PMGSY/1886-92 dated 24.06.2010. As per the terms of the agreement pertaining to the allotment of contract, the work was to be executed and completed within a period of 18 months.

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3) It appears that the work could not be completed by the contractor i.e., the complainant, within the stipulated time and he could not do so even within the extended period of time. There were contradictory versions with regard to reasons for non-completion of work. The complainant alleged that there was some dispute going on between the land owners and the Government with regard to payment of compensation which prevented him from completing the work within the stipulated period whereas the Chief Engineer and the Executive Engineer claimed that the delay in progress of work is wholly attributable to the complainant-contractor.

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4) Ultimately, the contract came to be cancelled/terminated vide communication No.CE/PMGSY/DB/K/5216-19 dated 06.08.2012 of the Chief Engineer, PMGSY(JKRRDA), Kashmir. This was done on the basis of recommendations of the Executive Engineer, PMGSY, Division Uri-the petitioner herein, who happens to be the accused in the impugned FIR. The termination order and the subsequent allotment of balance work was challenged by the complainant by way of a writ petition bearing OWP No.365/2013, which is stated to be pending before this Court.

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5) On 21.12.2013, a written complaint came to be filed by the complainant, on the basis of which preliminary verification was undertaken by the Vigilance Organization, Kashmir. In the said complaint, the complainant while narrating that he had been awarded the aforesaid work

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of construction of road, claimed that the work could not be completed within the stipulated time because execution of the work was resisted by the local residents and landlords as they had not received the adequate compensation from the Government. He also stated in the complaint that his contract was terminated at the instance of the Executive Engineer, the accused/petitioner herein, who had also received a sum of Rs.90,000/ as illegal gratification from him. It was alleged that the contract of the complainant was terminated due to the reason that he could not fulfill the illegal and unlawful demands of the accused. The amount of Rs.90,000/, as per the complainant, had been paid by him by transferring the same in the bank account of one Dr. Aijaz Ahmad Kamili, a close friend of the accused/petitioner. This is alleged to have been done by the complainant on 25.04.2011. The complainant is further alleged to have paid certain other amounts to the accused/petitioner in cash from time to time.

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6) The Vigilance Organization, Kashmir, after conducting preliminary verification into the allegations made in the complaint came to the conclusion that the offences under Section 5(1)(d) r/w 5(2), 4A of J&K Prevention of Corruption Act and 109 RPC, are disclosed against the petitioner/accused and, accordingly, the impugned FIR was registered.

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7) The petitioner has challenged the impugned FIR on the grounds that the contents of the same do not disclose commission of any offence by the petitioner; that the allegations made in the impugned FIR are an afterthought, inasmuch as the complainant has not made any allegation of mala fides or bribery against the petitioner in his writ petition which he had

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filed in the year 2013 whereby he had challenged the action of termination of his contract; that the allegations made by the complainant against the petitioner are simply to wreak vengeance upon him because it was on the recommendations of the petitioner that the contract came to be terminated, and, that the complainant has lodged the complaint against the petitioner after a long delay without affording any explanation for the same.

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8) The official respondents have resisted the petition and filed the status report regarding investigation of the case. In their status report, the official respondents, while narrating the facts leading to the filing of the complaint by the complainant, have claimed that the bank transactions between the complainant and Dr. Aijaz Ahmad Kamili, show that the complainant had transferred an amount of Rs.90,000/ in the account of said Dr. Aijaz Ahmad Kamili on 25.04.2011 and there is also material on record to show that there were several bank transactions and cash transfers between the above named Dr. Aijaz Ahmad Kamili and wife of the petitioner as well as the petitioner, which clearly go on to show that the petitioner was paid the amount of bribe by the complainant. It has also been claimed that during the investigation of the case, the allegations made in the complaint stand corroborated by the statements of witnesses recorded under Section 161 of Cr. P. C. On these grounds, it is urged that investigation in the case needs to be brought to its logical conclusion and that the same cannot be scuttled at its infancy.

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9) I have heard the learned counsel for the parties and perused the material on record including the case diary and the record pertaining to preliminary verification of the case.

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10) Before proceeding further in the matter, certain dates and events

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which assume significance in the context of the contentions raised in this case are required to be noted:

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I)	Date of tender	-	10.05.2010
II)	Date of acceptance of offer of the complainant by Chief Engineer, PMGSY(JKRRDA)	-	24.06.2010
III)	Date of execution of contract between The Chief Engineer and the complainant	-	17.08.2010
IV)	Date of commencement of work	-	12.09.2010
V)	Date on which bribe money was allegedly paid by the complainant to the petitioner	-	25.04.2011
VI)	Stipulated date of completion of work	-	12.03.2012
VII)	Date of termination of contract	-	06.08.2012
VIII)	Date of filing of writ petition challenging the termination of contract and tender notice dated 25.03.2013 issued for execution of balance work	-	05.04.2013
IX)	Date of filing of complaint by the complainant, which is subject matter of this petition	-	21.12.2013
X)	Date of registration of impugned FIR	-	02.02.2016

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11) From the aforesaid sequence of events, it emerges that the

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complainant after having allegedly paid the bribe money to the petitioner/accused in April, 2011, did not immediately approach the Vigilance Organization or any other law enforcement agency to set the law

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into motion. He went on with his usual job of execution of work and it is only when his contract was terminated in August, 2012, he approached the Writ Court and when he failed to get the desired order from the Court, he chose to file a complaint against the petitioner in December, 2013.

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12) It is to be noted that the material placed on record by the petitioner, which forms part of the case diary/verification file clearly suggests that the petitioner herein in his capacity as Executive Engineer had been reminding the complainant time and again to stick to the timeline for completion of the project and warning him about the consequences. In this regard, a number of communications addressed by the petitioner to the complainant form part of the record. The termination order dated 06.08.2012 clearly suggests that the contract of the complainant has been terminated on the basis of the recommendations made by the petitioner. Thus, it is clearly a case where actions of the petitioner in his official capacity have infuriated the complainant and as an act of vengeance, he has resorted to filing of the complaint against the petitioner which has become the basis of the impugned FIR. Had it been a genuine case of payment and acceptance of bribe, the complainant would not have taken more than two and a half years to approach the police for lodging the complaint against the petitioner.

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13) Apart from the above, if we go to the contents of the writ petition that has been filed by the complainant to challenge the order of termination of his contract and re-tendering of work, the same do not disclose any allegation of mala fides or bribery against the petitioner herein. The only ground on which challenge has been thrown to the action of the official

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respondents impleaded in the said writ petition, is that they did not take into account the fact that there were unfavourable conditions prevalent in the Valley at the relevant time and that there were disputes between the landowners and the Government regarding non-payment of compensation which prevented him from completing the work within the stipulated time. The fact that the complainant did not impute any allegations of bribery against the petitioner herein in the said writ petition clearly shows that lodging of complaint with the police by the complainant was an afterthought and a ploy to wreak vengeance upon the petitioner.

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14) The Supreme Court in the celebrated case of State of Haryana and others v. Ch. Bhajan Lal and others, 1992 (1) SCC (Supp) 335, while holding that the power to quash the criminal proceedings in exercise of jurisdiction under Section 482 Cr. P. C should be resorted to in rearest of rare cases, has illustrated the categories where this power can be exercised. The same are given as under:

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(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

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(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

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(c)where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support

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of the same do not disclose the commission of any offence and make out a case against the accused;

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(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

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(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

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(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

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(g)where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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(Emphasis supplied)

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15) From the above it is clear that where the complaint is frivolous, vexatious or oppressive, the High Court would be well within its jurisdiction to quash the criminal proceedings. As already noted, the sequence of events in which the complainant has set the criminal law into motion against the petitioner in this case clearly indicates that his only motive is to take revenge against the petitioner who has been instrumental in recommending termination of his contract.

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16) Apart from the above, a perusal of the Case Diary as well as file pertaining to preliminary verification shows that the enquiry officer and the

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investigating officer prior to registering the FIR, have not taken trouble to collect any material that would go on to throw any light on the reasons for delay in lodging of the complaint.

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17) A Constitution Bench of the Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh and others, (2014) 2 SCC 1 , has stressed upon the need for holding of preliminary enquiry in certain cases where there is delay/latches in initiating criminal proceedings, for example over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

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18) Even though in the instant case, the Vigilance Organization did conduct a preliminary verification but I could not find anything worth the name in the verification file that would go on to suggest that an effort to find the reason as to why the complainant after having allegedly paid the bribe to the petitioner in April, 2011, chose to approach the agency as late as in December, 2013. Without undertaking this exercise, it was not open to the Vigilance Organization to rely upon the bald allegations of the complainant. The delay in lodging the complaint in the instant case assumes great significance in the face of the fact the contract of the complainant was terminated on the recommendation of the petitioner and it was only after the termination of the contract and subsequent re-tendering of the balance work, that the complainant chose to set the law into motion by filing the complaint. Without going into this aspect of the case and simply accepting the version of the complainant as a gospel truth, the enquiry officer has

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abdicated his legal duty and thereby landed himself into an error by setting the criminal proceedings into motion.

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19) It has been vehemently argued by learned Senior AAG, appearing for the official respondents, that there are documents on record of the case that would suggest that there was transfer of money from the account of complainant to the account of Dr. Aijaz Ahmad Kamili, who in turn had cash transactions with the petitioner and his wife which cannot be ignored.

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20) It is true that there is material on record to show that the complainant had transferred a sum of Rs.90,000/ to the account of Dr. Aijaz Ahmad Kamili and it is also a fact that there were a number of banking transactions between said Dr. Aijaz Ahmad Kamili and petitioner as well as his wife. This, however, does not lead us anywhere as these transactions do not indicate that it is the petitioner who had accepted money from the complainant. The bank statements would show that there have been several transactions between the petitioner and Dr. Aijaz Ahmad Kamili even prior to the date of alleged transfer of bribe money and subsequent thereto as well. Thus, just because the complainant credited an amount of Rs.90,000 to the account of Dr. Aijaz Ahmad Kamili who was having bank transactions with the petitioner or his wife for many years, does not lead to the conclusion that the petitioner had accepted any money from the complainant. Therefore, it cannot be stated that there is any material on record to even remotely suggest that the petitioner has accepted the bribe money from the complainant. The argument of learned Senior AAG, therefore, deserves to be rejected.

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21) For the foregoing discussion, this Court is of the considered opinion that the complaint, which has become the basis of the impugned FIR, has been lodged by the complainant with an ulterior motive in order to settle score with the petitioner who had recommended termination of his contract. The case, therefore, squarely falls under category (g) mentioned by the Supreme Court in Bhajan Lal’s case (supra) If the prosecutions of instant nature are allowed to proceed, then no Engineer would dare to take action against an erring contractor.

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22) Thus, this is a fit case where the Court should exercise its discretionary powers under Section 482 of Cr. P. C (corresponding to Section 561-A of the Jammu and Kashmir Code of Criminal Procedure) to quash the proceedings that have been initiated against the petitioner. Accordingly, the petition is allowed and the impugned FIR bearing No. No.05/2016 and the criminal proceedings emanating there from against the petitioner are quashed.

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23) The case diary be returned to learned Sr. AAG

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Srinagar 06.08.2021 “Bhat Altaf, PS”

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Whether the order is speaking: Yes Whether the order is reportable: Yes

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MOHAMMAD ALTAF BHAT 2021.08.06 12:23 I attest to the accuracy and integrity of this document

Showkat Hussain Koul v. State of Jammu and Kashmir through Commissioner/ Secretary to Govt, Public Works Dept

Case brief

What is this about?

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Showkat Hussain Koul v. State of Jammu and Kashmir through Commissioner/ Secretary to Govt, Public Works Dept

Case brief

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