Wednesday, January 3, 2018
Let me begin at the very beginning by pointing out straightaway that in a verdict which grabbed the news headlines of all news channels as well as newspapers and magazines, a Special CBI court on December 21, 2017 acquitted all the accused, including former Telecom Minister AA Raja and DMK MP Kanimozhi and telecom company owners in the infamous 2G scam. The judgment acquitted them in all three separate cases lodged by the CBI and the Enforcement Directorate (ED). No doubt, this has come as a big respite for all those who were very anxiously waiting for this verdict to come!
Before proceeding ahead, let me point out here that the case centres around five main allegations: fixation of an arbitrary cut-off date; violation of First Come First Serve policy in issuing Letters of Intent (LoIs); granting of Unified Access Service licences to two ineligible companies and payment of Rs 200 crore bribe to Kalaignar TV Pvt Ltd, promoted by the family of DMK patriarch M Karunanidhi.
Terming the CBI chargesheet as a “well choreographed” one, Special Judge OP Saini minced no words in saying pin pointedly that, “The CBI’s evidences were incorrect facts which miserably failed to prove charges against the accused in 2G spectrum case.” Reacting to the acquittal, the CBI and the ED said they would appeal against the judgments. Naturally, they have to appeal because by this judgment it is their reputation that has taken the worst beating because they failed to convince by their arguments that a prima facie case existed against all the accused in the 2G scam!
To be sure, at the end of his 1,500 pages order, Special CBI Judge Saini said that, “I have absolutely no hesitation in holding that the prosecution (CBI) has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet.” It must be pointed out here that among the accused, it was Raja who had spent longest period – 15 months in jail during the trial. Kanimozhi was in jail for six months from May 21, 2011 to November 28, 2011. Without a doubt, their face looked cheerful and happy as they have finally got a long-awaited respite. They cannot be faulted because this is what they were looking for.
To put things in perspective, the fifteen other accused allowed to walk free include former Telecom Secretary Siddharth Behura, Raja’s erstwhile private secretary RK Chandolia, Swan Telecom promoters Shahid Usman Balwa and Vinod Goenka, Unitech Ltd MD Sanjay Chandra and three top executives of Reliance Anil Dhirubhai Ambani Group (RADAG) – Gautam Doshi, Surendra Pipara and Hari Nair. Saini, whose court came into being on March 14, 2011 for hearing 2G cases exclusively, also, acquitted Essar Group promoters Ravi Kant Ruia and Anshuman Ruia and six others in a separate case arising out of the 2G scam probe. Besides Ruias, Loop Telecom Promoters IP Khaitan and Kiran Khaitan and Vikash Saraf, one of the Essar Group Directors, Loop Telecom Ltd, Loop Mobile (India) Ltd and Essar Teleholding Ltd also were acquitted.
It is noteworthy that the CBI had alleged that there was a loss of Rs 30,984 crore to the exchequer in allocation of licences for the 2G spectrum which were scrapped by the top court on February 2, 2012. Raja and Kanimozhi who is daughter of DMK supremo M Karunanidhi were also let off in another case lodged by the ED under the money laundering law arising out of the 2G scam. It is certainly by all accounts a great relief for them!
It would be pertinent to mention here that in its chargesheet, the ED had also named DMK supremo M Karunanidhi’s wife Dayalu Ammal as an accused in the case in which it had alleged that Rs 200 crore was paid by Swan Telecom (P) Ltd (STPL) promoters to DMK-run Kalaignar TV. Along with them, 16 others, including Shahid Balwa and Vinod Goenka of STPL, Asif Balwa and Rajiv Aggarwal of Kusegaon Fruits and Vegetables Pvt Ltd, film producer Karim Morani, P Amirtham and Sharad Kumar, Director of Kalaignar TV, were also acquitted in the money laundering case.
In hindsight, the Judge did not pay much significance to nearly Rs 200 crore transferred to DMK controlled Kalaignar TV by some of the accused persons and companies. He dismissed the transaction saying none of the accused persons claimed that it was part of illegal gratification in lieu of alleged favour granted to them by Raja. The Judge also find no illegality in the Raja’s decision to advance the cutoff date for receiving application for grant of licences from October 1, 2007 to .
What also cannot be missed out here is that though the Department of Telecom gave just one hour for the applicants to submit their bids, leading to a chaos and scuffle, Judge Saini justified the decision. He also took no notice of the fact that the one-hour time, without any prior notice was too short for any bidder to procure a bank draft ranging from Rs 200 crore to Rs 500 crore. Brushing aside this damning accusation against Raja, Saini went on to justify the decision, saying, “A non-serious player, who had no financial resources, would block the way of a serious player by claiming early mover advantage. This was the main disadvantage of determining seniority by date of application and as such, it was injurious to the interest of serious players, who had the financial resources to execute the telecom project.”
It also cannot be lost on us that Judge Saini also said that whenever an officer wanted to delay an application, “he would wrap it up in the mantle of first-come first-served, that is, unless earlier application was disposed of, the next will have to wait despite no fault of his own.” He said change of criteria was a facilitating innovation. The Judge also seemed to be impressed by the allegations made by the accused persons against prime witness Aseervadam Achary about his political motives. The court rubbished its testimony saying explicitly that, “He was a man with political testimony and used to think of joining political party.”
Be it noted, Justice OP Saini said that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” It was also held that, “When defence started arguments, they kept filing written submissions contemporaneously with their oral submissions. Not only this, the most painful part is that the Special Public Prosecutor was not ready to sign the written submissions filed by him. What is the use of a document in a court of law, which is not signed by anyone? When questioned as to why the Special Public Prosecutor was filing unsigned written submissions, his reply would be that some defence advocates had also not signed the written submissions.”
While acquitting A Raja, Ms Kanimozhi and 15 others, including 4 companies, of all the charges in the CBI case, Special Court Judge OP Saini said that, “There is no evidence on the record produced before the court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first-come, first-served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of Swan Telecom Pvt Limited (STPL) and Unitech group companies, non-revision of entry fee and transfer of Rs 200 crore to Kalaignar TV (P) Limited as illegal gratification.”
The Judge minced no words in stating quite explicitly that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” In his judgment acquitting all the accused in the 2G spectrum case on December 21, Special Judge OP Saini said that, “Everything happening in the Department of Telecom (DoT) then was known to several other companies – and that there was no secrecy and sanctity. Everything taking place in DoT was conveyed by officials concerned to each company in advance.’
It was also held by the Judge that, “Everything was leaking in DoT. There was no secrecy or sanctity. Who is responsible for it? There is no evidence. In such a situation, no blame can be cast on any of the accused alone. In such a scenario where every official information was being leaked, it cannot be argued that a specific information was conveyed to a specific company by a specific individual, unless there is a definite evidence on this point. It is all in the realm of speculation.”
Furthermore, the Judge also while exonerating Raja and all others of any wrongdoing held that, “It is clear that the Ministry of Finance was not very enthusiastic about its objections regarding pricing of initial spectrum/revision of entry fee. Moreover, [the then] Finance Secretary admitted that after receipt of reply of DoT, they did not pursue their objections seriously. If the Finance Ministry had been serious, and Sh. A Raja was not heeding its query for revision of entry fee, the matter must have been reported to the Cabinet Secretariat or PMO.”
The Judge accepted the defence contention that nowhere had the Telecom Regulatory Authority of India (TRAI) recommended revision or indexation of entry fee. Nor had it recommended auction of spectrum. The Judge said: “No witness had deposed that TRAI had recommended revision of entry fee for 2G spectrum, except Nripendra Misra, a former Secretary Telecom, and a former TRAI Chairman. However his view is not supported by the contents of the recommendations.”
The Judge also made it clear in the 1552 page judgment that, “The chargesheet is based mainly on misreading, selective reading, non-reading and out-of-context reading of the official record. Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness-box.” He also said that, “Proceeds of crime is the foundational fact for the offence of money laundering. Since there are no proceeds of crime, there can be no offence.” He concluded by saying that, “The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused, made in its well choreographed chargesheet. Accordingly, all accused are entitled to be acquitted and are acquitted.”
Eminent Supreme Court senior lawyer KTS Tulsi while hailing the judgment said that, “A truckload of documents did not have anything on the basis of which it could be said that the ineligibility of Swan or Unitech was ignored or Raja’s link with transfer of Rs 200 crore to Kalaignar could be established. The court accepted the statement of D Subbarao, referred to as a sterling witness, for coming to the conclusion that there was no loss to the exchequer and at best it was only some sacrifice of revenue (for the benefit of poor subscriber). Once the court came to the conclusion that A Raja was not responsible for change of policy with regard to the cut-off date and its change from first come first serve to first paid, there was virtually nothing left in the case. On detailed careful scrutiny of the files, their notings and evidence of the authors of those notings, the court came to the conclusion that there was no interference by any of the accused persons in processing the files. In addition to that, the court found that in fact Raja passed the correct order and that for the change of policy, DS Mathur was responsible. Moreover, the Solicitor General of India had approved the decision with regard to the change of policy of first come first serve from date of application to date of payment. Thus, it was almost impossible for Raja to be held responsible for the same.”
But Special Public Prosecutor Anand Grover who was appointed after SPP and senior advocate UU Lalit was appointed as a Judge of the Supreme Court is not happy with the judgment. He said the trial Judge made silly mistakes in even reading the basic document, the chargesheet. He asked: “If the chargesheet was faulty, why did he frame charges at all? He should have discharged all the accused only on that ground. No trial Judge proceeds with the trial after finding the chargesheet faulty.”
He said the trial Judge appeared to have completely missed the tabular chart provided by CBI detailing the transfer of Rs 200 crore by Dynamics, a real estate company to Kusegaon, a fruit and vegetable trader, which had no business. The money was then transferred to Cineyug Films to be finally routed to Kalaignar TV. He said that, “The money trial was vivid and detailed. The motive was clear. The tabular chart provided by CBI during trial proceedings clearly brought out the sequence and motive behind the payments. Yet, the chart does not even get referred to by the trial Judge. This is strange process of accused getting acquitted.”
He further added that it was the cardinal duty of the trial Judge to look for facts in the midst of the jungle for documents. He lamented that, “But, the Judge preferred to go by the contradictory and varying explanations given by the defence lawyers on the money trial. The trial Judge made so many mistakes.”
All said and done, the decision by the learned Judge has to be accepted by one and all as binding unless and until it is overturned by the higher court. But one thing is quite clear: CBI and ED miserably failed in doing its homework properly. The outcome of the case could have been different if the CBI and ED had been more serious in pursuing the case right from day one!
Severely castigating the CBI for putting “no question” to any witness that a “transaction of Rs 200 crore was a transaction of illegal gratification linked to (UPA telecom minister) A Raja” in the allocation of 2G spectrum in 2008, Special Judge OP Saini acquitted all accused charged with criminal breach of trust, conspiracy and cheating over alleged largescale irregularities in the allocation. Saini pulling up the CBI for “remaining silent” and “filing a well-choreographed chargesheet” and noting that the prosecutor had made it out to be a “case of high political corruption”, said: “I have endeavoured hard to persuade myself to take an expansive and liberal view of the prosecution case. However, in view of deficient, or I may say nil evidence on record, I find myself unimpressed and unmoved, whatever may be nature of the case. High profile nature of a case cannot be used as a ground for holding people guilty without legal evidence.”
What a pity that the CBI Special Judge OP Saini had to say that, “I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from , awaiting for someone with some legally admissible evidence in his possession, but all in vain…Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.”
This shows how well prosecution, CBI and ED were prepared in such a high profile case! It is really tragic! In a veiled reference to the Comptroller and Auditor General’s estimate of a presumptive loss of Rs 176,000 crore to the exchequer in grant of 2G licences, Special Judge OP Saini said categorically that, “Some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels and a huge scam was seen by everyone where there was none. These are only a few examples of how policy issues are strewn around here and there in a disorderly manner. Because of this, it becomes very difficult for outside agencies and institutions to understand issues in proper perspective, leaving scope for controversy.” Centre must spell out all its policy issues clearly so that no such stinging remarks are required to be made by any Judge again as we see most unfortunately here in such a high profile case!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.04411111111111111