Chattisgarh High Court
Rikhi Ram Paraste vs State Of Chhattisgarh on 3 February, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:6057
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 03-12-2024
Judgment delivered on : 03-02-2025
CRA No. 782 of 2005
Rikhi Ram Paraste, S/o Shri Punawalal Paraste, Aged About 54 Years
Sub Divisional Officer (Telephone Exchange) Up Mandal Office
Tikrapara, Raipur, Distt. Raipur (C.G.)
... Appellant
versus
State Of Chhattisgarh through Special Police Establishment, Lokayukt
Office, Bhopal, Ikai, Raipur, Distt. Raipur (CG)
... Respondent
For Appellant : Mr. Adil Minhaj, Advocate.
For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey, J
C A V Judgment
Challenge in the present appeal is to the legality and validity of the judgment of conviction and order of sentence dated 19.9.2005 passed by the Special Judge and First Additional Sessions Judge, Raipur in 2 Special Criminal Case No. 10/2002 whereby the accused/appellant has been convicted and sentenced as under:
Conviction Sentence Under Section 7 of Prevention of RI for one year, pay a fine of Corruption Act, 1988. Rs.500/- and in default thereof to suffer additional RI for one month.
Under Section 13(1)(d) read with RI for two years, pay a fine of Section 13(2) of Prevention of Rs.1000/- and in default thereof to Corruption Act, 1988. suffer additional RI for two months.
Both the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that complainant Dr. Shankar Pushpkar opened a clinic at Nehru Nagar, Raipur and for the purpose of getting telephone connection in his clinic, on 12.4.2001 he deposited the requisite fee of Rs.2000/- with the Telephone Department but no such connection was provided to him. Hence the complainant sent his assistant Purushottam Manikpuri to Telephone Exchange, Tikrapara for enquiring about the matter where he met the accused/appellant who was working as Sub Divisional Officer (Telephone) and he demanded Rs.400/- for providing telephone connection. On 1.5.2001 when the complainant went to the office of the accused, he again demanded Rs.400/- for telephone connection. Since the complainant did not want to give bribe to the accused and wanted to get him caught red handed, on 2.5.2001 he wrote a complaint regarding demand of bribe by the 3 accused to Superintendent of Police, Special Police Establishment, Raipur who authorized Shri NS Rajput, Dy.SP, Special Police Establishment to enquire into the matter. For verification of the complaint, the complainant was given a micro tape recorder with empty cassette for recording the conversation regarding demand of bribe by the accused. On 3.5.2001 the complainant again submitted an application to the SP, Special Police Establishment along with tape recording of conversation with the accused regarding demand of bribe.
03. Dy. Superintendent of Police Shri NS Rajput called the panch witnesses namely Shri Avinash Sharma and Dr. Vimal Kumar Kanungo, Assistant Professors of Govt. Science College, Raipur, to Lokayukt Office, Raipur on 3.5.2001, they were introduced to the complainant who had come with bribe amount of Rs.300/- and also informed about the demand of bribe by the accused. After recording numbers of three currency notes of 100 denomination produced by the complainant in the Preliminary Panchanama (Ex.P/8) and applying phenolphthalein powder on the said notes, it were kept in the left pocket of complainant's shirt with an instruction to give this amount on being demanded by the accused in his hand only and before and after giving this amount to him and, he should not shake hand with him and that thereafter he is to give signal to the trap party by scratching his head. The complainant and the witnesses were made aware of the trap proceedings.
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04. After reaching the office of the accused, the complainant gave the tainted notes of Rs.300/- to the accused and after coming out from the office, gave signal to the trap party whereupon the trap party entered the office and Constable Shyam Sunder caught hold of left wrist of the accused and Rakesh Bhatt, Police Inspector, caught hold of his right wrist. The bribe amount was seized at the instance of the accused from his table which was kept under a diary and on numbers of the currency notes being tallied, it were found to be the same tainted notes described in the preliminary panchanama. After completing the usual formalities, charge sheet under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act was filed against the accused.
05. Learned trial Court framed charges under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act against the accused, which were denied by him and he prayed for trial. The prosecution in order to prove its case examined 14 witnesses. Statement of the accused under Section 313 of CrPC was recorded wherein he denied the incriminating circumstances appearing against him in the prosecution case and pleaded innocence and false implication. In his defence, he examined two witnesses.
06. After hearing counsel for the parties and considering the material placed on record, the learned trial Court by the impugned judgment 5 convicted and sentenced the accused as mentioned in para 1 of this judgment.
07. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court has not properly appreciated the oral and documentary evidence on record. PW-2 Kanungo admitted that when hands of the appellant were dipped in the sodium carbonate solution, its colour did not change and this fact is also proved by the defence witnesses but the learned trial Court ignored this important aspect. PW-13 Purushottam Manikpur, who is subordinate of the complainant, also did not support the prosecution case and was declared hostile. The complainant has deposed that as demanded by the appellant, he gave four tainted currency notes of 100 denomination to him whereas only Rs.300/- was seized from the table of the appellant and remaining 100 rupee note was not seized. This itself creates doubt as to the authenticity of demand and acceptance. There are material contradictions and omissions in the evidence of the complainant. Therefore, in the given set of evidence, it is clear that the prosecution has failed to prove its case beyond all reasonable doubt and as such, the appellant deserves to be acquitted of the charges by giving him benefit of doubt.
Reliance has been placed on the decisions in the matters of A. Subair Vs. State of Kerala, (2009) 6 SCC 587; P. Satyanarayana 6 Murthy Vs. District Inspector of Police, State of Andhar Pradesh and another, (2015) 10 SCC 152; C. Sukumaran Vs. State of Kerala, (2015) 11 SCC 314; and K. Shanthamma Vs. State of Telangana, (2022) 4 SCC 574.
08. On the other hand, learned counsel for the respondent/State supporting the impugned judgment submits that the learned trial Court upon minute examination and appreciation of the overall evidence on record has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. Therefore, the present appeal being without any substance is liable to be dismissed.
09. Heard learned counsel for the parties and perused the material available on record.
10. It is clear from the record of learned trial court that the appellant was charged under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act on the ground that he demanded and accepted Rs.300/- as bribe from the complainant for providing him telephone connection.
11. PW-1 complainant Dr. Shankar Pushpkar states that he deposited Rs.2000/- with the telephone department for getting telephone connection. After one week he sent his assistant Purushottam Manikpuri to Telephone Exchange Office, Tikrapara to 7 enquire about the matter. However, Purushottam informed him that the appellant is demanding Rs.400/- as bribe for telephone connection and he has called him. When he went to the office of the appellant, he demanded Rs.400/- bribe from him and also misbehaved with him. Thereafter, he made a written complaint (Ex.P/1) to the Superintendent of Police which bears his signature from A to A part. The office of Lokayukt gave him a mini tape recorder and he recorded conversion with the accused regarding demand of bribe. Transcription of the conversation is Ex.P/5 and he admitted his signature from A to A part on this document.
He states that he submitted Rs.400/- in the office of Lokayukt, its numbers were noted and phenolphthalein power was applied on it. He was explained the procedure of trap and was asked to again record the conversation while giving bribe to the accused. After reaching the office of the accused, on being demanded by the accused he gave four tainted notes of 100 denomination to the accused. The accused took three notes of 100 denomination and kept it under a diary on the table and one note of 100 denomination was kept on the table itself. After coming out of his office, he (PW-1) gave signal to the trap party, upon which they rushed into the office, introduced themselves to the accused and enquired about the bribe amount. Initially, the accused did not tell them anything but after sometime disclosed to have kept it under the diary on the table. When hands of the accused were washed 8 with the sodium carbonate solution, its colour turned pink. When the tainted notes and hands of the complainant were also washed, colour of the solution tuned pink. On numbers of the notes being tallied, it were found to be the same tainted notes.
In cross-examination he admits that after depositing Rs.2000/- he sent his assistant to telephone department and he admitted that by that time work order was issued but he did not mention this fact in his written complaint Ex.P/1 that on 23.4.2001 work order was received by the accused. He admitted in para 13 that on 26th he came to know through his compounder Manikpuri that telephone connection is to be provided but the said fact was not mentioned in Ex.P/1 by mistake. He admits that on 26th he got to know that for want of space in DP, it may take some time for providing telephone connection. In para 18 he admits that in his application Ex.P/1 he mentioned that the accused demanded Rs.400/- and while giving statement to the police he stated that he gave Rs.400/- to the accused but he returned Rs.100/- to him saying that his work will be done for Rs.300/-. He states that Rs.100/- was kept in the office of the accused and he cannot tell as to which police officer picked it.
12. PW-2 Dr. Vimal Kumar Kanungo is a shadow witness and he admitted his signature on Exs.P/5 to P/8, P/11 to P/19. In cross- examination he admits that mini tape recorder was not given to the complainant in his presence and that the complainant was given three 9 currency notes of 100 denomination only. He admits that he went with the trap party but the complainant went into the office of the accused alone and after about 15 minutes when the complainant gave signal to the trap party, then he along with the trap party members went inside the office of the accused and saw that the money was recovered from the table of the accused which was kept under a diary. However, he admits that when hands of the accused were washed before him with the solution, its colour did change.
13. PW-6 Shyamsunder, Police Constable, PW-7 Virendra Sharma, Inspector and PW-8 Shivbadan Mishra, Head Constable are members of the trap party and they stated that they stood outside the office of the accused and only the complainant went inside the office.
14. As per complainant, the accused demanded bribe from his assistant Purushottam but Purushottam (PW-13) states that when he went to Telephone Exchange, Tikrapara to enquire about the status of complainant's application, he met one lineman who told him that it would take about 15-20 days for providing connection. Next time when he went to the said office, he met the accused who informed him that after laying cable, he would get telephone connection within 10-15 days. He states that nobody demanded money for providing telephone connection and that he did not tell Dr. Pushpkar about demand of money for providing telephone connection. This witness was declared hostile by the prosecution and cross-examined, however, in cross- 10 examination also he denied all the suggestions of the prosecution. In cross-examination by the defence he admits that the power to connect the telephone connection is with the head office and the ring tone is provided by the head office and not by the office at Tikrapara. He admits that phone was installed in the clinic of the doctor but dial tone could be obtained from the head office only.
15. As per written complaint Ex.P/1 of PW-1 Dr. Shankar Pushpkar, the accused demanded Rs.400/- as illegal gratification from his Assistant Purushottam and thereafter when he himself met the accused on 1.5.2001 the accused again demanded Rs.400/- from him as bribe for providing telephone connection. Ex.P/5 is the transcription of conversation of the complainant with the the accused on 2.5.2001 but in this transcription also it is written " ugha ,Dpwoyh oks Duty jftLVj uk oks izkCye vkuh gS fQj vki dk ykbZu djrk] vc vHkh vki us ns[kk D;k fd;k gSA dscy esa txg gh ugh FkkA ckr fd;s fQj fudyok;s eSa ogka lsA"
16. In the matter of Rajesh Gupta Vs. State Through CBI, 2022 SCC OnLine SC 1107 the Hon'ble Supreme Court held in paras 12 and 20 as under:
"12. On the issue of evidentiary value and credibility of the recording in the cases of trap, the law is well-settled in the case of Ram Singh V. Col. Ram Singh, 1985 Supp SCC 611, wherein this 11 Court held that tape-recorded statement is admissible in evidence if the voice of the speaker is identified by the maker of the record and other persons recognizing his voice. In case, the maker is unable to identify the voice, strict proof would be required to determine whether or not, the said voice is of alleged speaker. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence, direct or circumstantial. The possibility of tampering with, or erasure of any part of the tape-recorded statement must be totally excluded. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances, otherwise, the transcript as prepared, is inadmissible in evidence.
20. On the said issue, the judgments of this Court in B. Jayaraj vs. State of Andhra Pradesh (2014)13 SCC 55 C.M. Girish Babu vs. CBI (2009) 3 SCC 779 are relevant, whereby this Court has clearly spelt out that the recovery shall follow the proof of demand. The presumption under Section 20 of PC Act can be drawn only when the demand is proved and the money is voluntarily accepted, knowing the fact that the said money has been delivered by way of bribe. In absence of proof of demand for illegal gratification and mere possession or recovery of the currency notes is not sufficient to constitute such offence. It is clarified that presumption under Section 20 PC Act can be drawn only after demand and acceptance of illegal gratification is proved beyond reasonable doubt. In our considered opinion, the findings as recorded by the Trial Court and the High Court, drawing presumption under Section 20 of the PC Act, are completely perverse in law. There is no evidence to prove the demand and the acceptance. The theory of preponderance of probabilities, as applied in this case, is not sustainable and the finding of the High Court is liable to be set- aside.12
17. Learned trial Court found that as per transcription (Ex.P/5), the accused demanded Rs.200-300/- but in the transcription it is written that accused told "nks rhu lkS Hkst nks" and the complainant said that "nks rhu lkS Bhd" and then the accused explained some technical problem. However, on the basis of above transcription the learned trial Court found that the accused demanded Rs.300/- and held the demand by the accused proved. It is evident from the record that tape recording was not played before the trial Court and no one identified the voice of the accused. In Ex.P/1, demand of Rs.400/- is said to have been made by the accused whereas while framing charge, learned trial Court mentioned that the accused demanded Rs.300/- as bribe. Further, from the statements of the complainant and the shadow witness, only Rs.300/- was recovered from the table of the accused which was kept under a diary. The trap witnesses admit that they do not know as to who owned that diary. The complainant admitted in para 21 that when he reached the office of the accused, one person was sitting there. However, that person has not been examined by the prosecution who could have been the best independent witness regarding demand and acceptance of bribe. The accused examined the said person Laxman Singh as DW-1.
DW-1 Laxman Singh states that on 3.5.2001 he was sitting with the accused and at around 3.30 to 4 pm one doctor entered the office who was asked to sit by the accused but he did not sit and kept 13 something on the table after taking out from his pocket and ran away. As soon as he ran away, he (DW-1) followed him and after coming out he saw that the said person was talking with the Lokayukt people who asked him whether work is done and the doctor replied that he has kept under the diary on the table. He states that when hands of the accused were washed with the solution and its colour did not change, the doctor fled from there.
18. DW-2 Pappu Nishad states that before him the lineman laid wire and installed the telephone instrument in the office of Dr. Pushpkar. He states that the work of Tikrapara Exchange is limited to this extent only. He further states that while he was digging pit, the doctor kicked down two liters of kerosene oil brought by him and he informed about it to the Sahab.
19. The complainant himself admitted that at the time of trap, one person was sitting with the accused but the prosecution did not examine that person and he was examined by the accused as defence witness. It is also admitted by the trap witnesses that notes were recovered from under the diary.
20. In the matter of P. Satyanarayana Murthy (supra) it has been held by the Hon'ble Supreme Court in paras 21, 22, 23 & 25 of its judgment as under:
14"21. In State of Kerala v. C.P. Rao, (2011) 6 SCC 450 this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would a not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj, (2014) 13 SCC 55, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
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23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any e amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.
25. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d) (i) and (ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification."
21. In the matter of C. Sukumaran (supra) the Hon'ble Apex Court in paras 16 & 17 of its judgment held as under:
"16. Further, none of the prosecution witnesses have actually deposed in the case that the appellant was the person who had demanded and accepted the bribe from the complainant and since PW 2 has materially turned 16 hostile, therefore, neither the demand aspect nor can the acceptance of the bribe money be verified from any other witnesses of the prosecution. Further, PW I in his a deposition before the Special Judge has also not supported the case of the prosecution, as he had refused to acknowledge the ownership of the tea shop, on the premises of which the bribe money was allegedly accepted by the appellant from the complainant. Hence, it is safe to say that the prosecution has failed to prove beyond any reasonable doubt that the appellant had accepted the illegal gratification from the complainant under Section 13(1)(d) of the Act. In support of the same, the learned counsel on behalf of the appellant has rightly placed reliance upon the decision of this Court in B. Jayaraj v. State of A.P. (2014) 13 SCC 55, which reads thus: (SCC p. 58, para 8) "8.... there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established." (emphasis supplied) 17
17. Now, coming to the legality of the conviction of the appellant under Section 13(2) of the Act by the High Court in its judgment, the same cannot be allowed to sustain in law, as the prosecution has failed to prove the demand of illegal gratification made by the appellant from the complainant and acceptance of the bribe money by the appellant. Further, the phenolphthalein test cannot be said to be a conclusive proof against the appellant, as the colour of the solution with regard to the other samples was pink and had remained so throughout. However, the lime solution in which the appellant's hands were dipped in, did not show the same pink colour. The reason assigned by the trial court is that the colour could have faded by the lapse of time. The said explanation of the trial court cannot be accepted by us in view of the fact that the colour of the other samples taken by the investigating officer after the completion of the trap laid against the appellant had continued to retain the pink colour. Moreover, the sample of the shirt worn by the appellant which was produced before the trial court did not show any colour change on the shirt's pocket section, where the bribe money was allegedly kept by him after the complainant had allegedly given him the bribe money."
22. In light of above decisions, if the facts emerging in the present case and the evidence adduced by the parties are examined, it is seen that as per the complainant, the accused demanded illegal gratification of Rs.400/- from his assistant Purushottam (PW-13) but PW-13 did not support the prosecution case and states that no demand was ever made by the accused from him. Statement of the complainant also 18 suffers from the vice of contradiction on the point of amount of bribe money. According to him, the accused demanded Rs.400/- and after that when he gave him Rs.400/-, he accepted only Rs.300/- saying that this much would do. However, as per trap witness (PW-2) he kept three tainted currency notes of 100 denomination in the pocket of the complainant and stated that the said notes were recovered from under the diary on the table of the accused.
23. The Hon'ble Supreme Court in the matter of A. Subair (supra) held in para 30 of its judgment as under:
"30. In a case such as this an inference of corruption may not be fairly drawn as the alleged demand was of Rs 25 only. In our view, the High Court was not justified in drawing the presumption under Section 20 and holding that the offence punishable under Section 7 of the Act was proved. Mere recovery of currency notes (Rs 20 and Rs 5) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe."
24. In the present case also, as per the complainant, the accused demanded Rs.400/- and later said that Rs.300/- would do. But it is also suggested by the defence that one employee of Telephone Exchange went to the house of the complainant on 1.5.2001 with whom the complainant misbehaved and also kicked down his kerosene oil. Though the complainant denied all these allegations but the defence 19 witness (DW-2 Pappu Nishad) who is working in Telephone Exchange stated that when he went to the house of the complainant for telephone connection, the complainant misbehaved with him and also kicked down his two liters of kerosene oil which was reported to his higher authorities. Thus, conduct of the complainant appears to be very suspicious and except the complainant, no witness supported the demand of illegal gratification by the accused. It is also clear that at the time of acceptance, one person was sitting with the accused but the prosecution did not examine him for the reasons best known to it and he was examined by the defence. The investigating officer PW-14 NS Rajput states in para 15 that if the complainant states that he gave Rs.400/- to the trap party, it is an incorrect statement.
25. PW-10 G.R. Banjare admits that before search the accused did not make personal search of them and he denied the suggestion of the defence that when the complainant went to the chamber of the accused some person was sitting with the accused. Thus, statements of the trap witnesses are also contradictory to each other. From the very beginning the prosecution has been unable to prove what was the amount of bribe whether 300/- or 400/-. The conversation between the appellant and the complainant regarding demand of bribe has also not been proved by the prosecution as per guidelines of the Hon'ble Supreme Court.
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26. Having regard to the facts and circumstances of the case, the nature and quality of evidence adduced by the prosecution and the defence; the inconsistency and contradiction in the evidence of the complainant and trap party witnesses, keeping in view the aforementioned principles of law laid down by the Hon'ble Supreme Court, this Court is of the opinion that the prosecution has failed to prove demand and acceptance of bribe by the accused beyond reasonable doubt. Being so, the impugned judgment of learned trial Court is not legally sustainable and it is liable to be set aside.
27. In the result, the appeal is allowed. The impugned judgment of learned trial Court is hereby set aside. The appellant is acquitted of the charges under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. The appellant is reported to be on bail, therefore, his bail bonds shall remain in operation for a period of six months from today in view of provisions of Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023.
Sd/ (Rajani Dubey) Judge Digitally MOHD signed by AKHTAR MOHD KHAN AKHTAR KHAN Khan