A court in Srinagar recently discharged former Jammu and Kashmir minister Naeem Akhtar and two others in a case under the Prevention of Corruption Act in connection with the illegal appointment of an officer as the Managing Director (MD) of Jammu And Kashmir Projects Construction Corporation (JKPCC).

Akhtar was the Chairman of JKPCC and Works Minister in 2018 when General Manager Vikar Mustafa Shonthu was appointed as the JKPCC MD. The case was registered against Akhtar, Sonthu and JKPCC Company Secretary Neeru Chadha in 2019 after the fall of the then People's Democratic Party (PDP)-Bharatiya Janata Party government. 

In the judgement passed on August 29, Special Judge Surinder Singh said that though only the Governor could have appointed the MD, Shonthu was merely given the charge of the post after the retirement of the then MD.

Such appointment does not amount to promotion, the Court ruled. 

“The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion,” the Court said.

Thus, the Court rejected the charge that Shonthu was appointed or promoted to the substantive post of MD.

”I am afraid if the prosecution fails in proving the above said plea, it would be uphill task for them to establish the requisite ingredients of offence of criminal misconduct aided with criminal conspiracy on the part of the accused persons,” the judge said.

The Court also opined that Akhtar’s exercise of power could be called an irregularity but not a criminal offence under the anti-corruption law. It also rejected the allegation of “dishonest intention to obtain an undue pecuniary advantage” against Akhtar.

“The order of assignment of charge issued by the accused-Chairman was in the administrative capacity enjoyed by him and if at all and as alleged by the prosecution, the Chairman was lacking power to issue such order, the same could have been an irregularity in the administrative capacity and not illegality and much less than being an offence under section 5(1) (d) r/w 5(2) of Prevention of Corruption Act attributed to the accused-Chairman.”  

However, the Court also said that Shonthu could not have drawn House Rent Allowance during the period he had charge of the JKPCC MD since he was already in possession of an official accommodation.

”As HRA is for those who incur expenses on rent for private housing. Eligibility for HRA ceases once the government provides official accommodation. Therefore, HRA amounting to Rs. 117014/- stated to be drawn by the accused-2 during the period from March 2018 to November 2018 can be recovered from him if he was otherwise held entitled to the official accommodation at Jammu during the period,” it said.

In this regard, the Court said it would still not lead to charges under the Prevention of Corruption Act. The Court also was not persuaded to frame a charge of criminal conspiracy in the case.

”The material on record would nowhere show any iota of evidence direct or circumstantial to satisfy the court that there was a prior meeting of minds between the accused persons. So also, no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations, or the conduct of the accused, was there. An offence of criminal conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference, which is not supported by cogent and acceptable evidence. Again I am not persuaded to hold that there is sufficient material to presume that accused have committed the said offences,” the judge said.

Keeping in view the contents of the charge sheet, evidence on file and submissions of both the sides besides the law laid down on the subject, the Court concluded that there was no ground for proceeding against the accused and thus rejected the chargesheet.

Senior Advocates Altaf Haqani with advocate Aasif Wani represented Naeem Akhtar. 

Senior Advocate Faisal Qadri and advocate Feroz Ahmad represented other accused.