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| HC quashes FIR against XEn in corruption case | | | Early Times Report
JAMMU, Aug 6: The Jammu & Kashmir and Ladakh High Court today quashed FIR registered by Vigilance Organization Kashmir now Anticorruption Bureau J&K against the Showkat Hussain Koul Executive Engineer, PMGSY, Division Uri against whom VOK registered a FIR in demand and acceptance 5,90,000/- illegal gratification.
Justice Sanjay Dhar while quashing the FIR NO 5/2016 against the petitioner observed 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 facts of the case is 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 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.
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. 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. 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 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.
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.
Justice Sanjay Dhar after hearing Sr. Adv AH Naik for the applicant whereas Sr. AAG BA Dar for the ACB observed that 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 abdicated his legal duty and thereby landed himself into an error by setting the criminal proceedings into motion.
During the Couse of arguments Sr. AAG vehemently argued 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.
Court observed that 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.
With these discussions, Justice Sanjay Dhar 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. If the prosecutions of instant nature are allowed to proceed, then no Engineer would dare to take action against an erring contractor.
Justice Sanjay Dhar further observed that 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. —JNF |
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