The Gs Goof ups of 2G

Recent 2G Verdict appears to have opened much needed skyline for the opposition parties. In the fight to survive, all else, except few, have lost miserably in almost all the elections held after the CAG declared 2G as scam on presumptive and notional losses to the tune of Rs 1.76 lakh crore in Nov’10. Within a week’s time Telecom Minister A. Raja had to resign, which followed his arrest in Feb’11.

In Mar’11, Delhi High Court set up Special Court to deal exclusively with 2G cases. In apparent efficient manner, CBI filed two Charge-sheets in Apr’11, following which Ms K. Kanimozhi (then MP) was arrested in May’11.

While UPA was still in governance, in Oct’11, CBI filed FIR against former telecom minister Dayanidhi Maran & his brother and the Special Court put on trial all 17 accused. While this was also the time, when Anna’s Anti-Corruption Movement was at its peak, everything contributed to the perception of perceived corruption in governance and the then Union Government also tried its luck by initiating swift action against people of its side. The concept of adopting discretion by authorities was at its low and demand for transparent and corruption-free governance echoed all around. This period was the new beginning of perception based politics, which gave rise to Arvind Kejriwal in Delhi and Narendra Modi at Centre.

Supreme Court also could not keep itself away from creating history and in Feb’12 cancelled 122 telecom licences allocated to nine companies declaring that natural resources could not have been allocated on first-come-first-served basis. This cancellation was surprising and untimely, as the Special Court was still dealing with the trial and Special Court was the best court, where evidence was to be taken on record, appreciated, countered and relied or discarded, on the basis of principles of admissibility.

After Supreme Court verdict, government moved for Presidential Reference with eight questions, including, ones on judicial interference in policy matters and auction being the only mode of allocation.

While by May’12, most of the accused including A.Raja were enlarged on bails by different courts; in Sep’12, a 5-Judges’ Constitution Bench of Supreme Court (headed by the then Chief Justice SH Kapadia) decided the Presidential Reference and held that Auction is ‘not a must’ for all resources and government has the right to decide policy, not judiciary, and maximization of revenue cannot be the sole criterion of consideration in all situations. I deem cancellation of 122 licences by Supreme Court was the second Goof-up of 2G episode.

Then came the famous Niira Radia tapes, of which transcripts of 5800 tapped conversations with politicians, corporate honchos were submitted before the Supreme Court in sealed cover in Jan’13. In Aug’13, Anil Ambanni & Tina Ambani appeared in witness box. Numerous other witnesses were examined from both prosecution and defence sides. In Sep’13, Mammohan Singh and P. Chidambaram got clean chit from a Parliamentary Panel on the 2G scam.

After completion of trial, it took more than two years for completion of arguments, which in fact started in Apr’15 and concluded in Apr’17. Special Court pronounced the Judgment on 21st Dec’17. All the 17 accused of CAG ballooned 2G Scam were acquitted.

As noted in the 2G judgment, it would be worthwhile here to refresh the allegations contained in FIR Charge-sheets:

“(a) The entry fee for the new pan India UAS licences in the year 2008 was kept by Department of Telecommunications (DOT) as Rs.1658 Crore, at which price the Cellular Mobile Telephone Service (CMTS) licences were awarded by DOT after auction in the year 2001. These UAS licences, issued in 2008 were issued on first¬come first¬served basis without any competitive bidding.

(b)  A press release was issued by DOT on 24.9.2007, which appeared in the newspapers on 25.9.2007, mentioning that the new applications for UAS licences will not be accepted by the DoT after 1.10.2007 till further orders. However applications received up to 25.09.2007 only were considered, which was also against the recommendations of Telecom Regulatory Authority of India (TRAI) that no cap should be placed on the number of Access Service Providers in any service area.

(c)  Even First¬ Come First ¬Served policy was implemented by the DOT in a manner which resulted into wrongful gain to certain companies. Further, there are allegations that the suspect officials of DoT had selectively leaked the information to some of the applicants regarding the date of issuance of letter of intent on 10.01.2008. In the letter of intent, an arbitrary condition was incorporated that whosoever deposits the fees (as per conditions in Letters of Intent, i.e. LOIs) first, would be the first to get license. Since some of the applicants, who had this prior information, were ready with the amount and they were able to deposit the fee earlier than others. Thus, favour was allegedly shown to some applicants by way of leaking the information about the date of issuance of letter of intent.

(d) Although, the FDI limit was increased from 49 to 74% in December, 2005, but there was no lock¬in period or restriction imposed on sale of equity or issuance of additional equity. As a result of this M/s. Swan Telecom Pvt. Ltd. (A¬6), which paid to DOT Rs. 1537 Crore for UAS Licences of 13 circles, offloaded its 45% equity to M/s Etisalat of UAE for Rs. 4200 Crore. Similarly, M/s. Unitech Wireless ( Group of 08 companies), which paid to DOT Rs.1658 Crore for UAS Licences of all 22 circles, offloaded its 60% equity to M/s Telenor of Norway for Rs. 6100 Crore. These stakes were sold by the said companies even before the roll out of services by them. The estimated loss to Government by grant of licences to these two companies alone comes to Rs. 7105 Crore. On pro rata basis, the estimated loss for all 122 UAS Licences issued in 2008 was more than Rs. 22000 Crore.”

Some important findings, arrived at by the Special Court in the 2G Trial Court Judgment, are extracted below: -

“TRANSFER OF 209.25 Crores from KUSEGAON FRUITS TO CINEYUG TO KALAIGNAR TV

PW 112 : This witness categorically deposed that the transfer of Rs. 209 crore from Dynamix Realty to Kusegaon Fruits and Vegetables (P) Limited was a loan and it was reflected in the draft prospectus of IPO, Ex PW 112/DF, also, filed with the SEBI on 30.09.2009. However, the version of the witness that it was a loan was not challenged by the prosecution. Only its reflection in the draft prospectus was questioned in re¬examination. Now the aforesaid evidence is binding on the prosecution.

FURTHER No Questions were put to other witnesses PW 118, 113. about the transfer. In the re-examination by learned Sr. PP, PW 137 denied the suggestion that the transfer of Rs. 200 crore was not a genuine transaction. The witness was not re¬examined on many other issues. Furthermore, when the witness supported the version of defence, there was no cross¬examination by the prosecution on that point.

The perusal of the evidence of aforesaid witnesses shows that witness after witness deposed that transfer of Rs. 200 crore from Dynamix Realty to Kusegaon Fruits and Vegetables (P) Limited was a loan and it was given through banking channel by means of cheques. However, the prosecution took no steps to discredit the witnesses by putting relevant questions either by re¬examination or cross¬ examination. No question was also asked to any witness to impeach the credit of any document. Thus, the prosecution did not put to the witnesses that the above transaction of Rs.200 crore was a transaction of illegal gratification. Only case put to the witnesses is that it was not a bonafide transaction. To make it to be a transaction of illegal gratification, prosecution argued about the speed and proximity with which the money was transferred from one entity to another. However, mere movement of money at fast or meandering speed does not make a transaction corrupt, as people conduct their business as per their own business sense and acumen. Speed of money can be commerce driven or crime driven. Speed of money by itself cannot be conflated with criminality unless there is good and irrefutable evidence, because speed of money is an important characteristic of modern commerce. In the instant case, there is no evidence that the speed of money by itself indicates criminality of the accused.

ISSUES WITH THE FINANCE MINISTRY ABOUT REVISION OF FEE.

Sh. D. S. Mahur deposed that Minister accorded approval to the use of dual technology at the same price which was determined in 2001 and the Government had issued Guidelines reiterating the same rate of entry fee. Sh. D. S. Mathur agreed with the proposal that dual technology applicants be charged the same entry fee as was being charged from the new applicants and raised no objections. However, he had raised objections only about priority to dual technology applicants in the matter of allocation of spectrum and no objection was there about entry fee. However, later on, he changed his stand.

The deposition of PW 36 DS Mathur shows in detail as to how the objections of Ministry of Finance were dealt with in detail and the role of Member (F) and Secretary (T) in that process. It shows as to how Member (F) agreed to the reply sent to the Finance Secretary and later on raised the issue of entry fee. PW 36 in his further cross¬examination dated 18.04.2012, pages 5 and 6, deposed about constitution of committee and when the Parliamentary Committee about the auction of spectrum raised questions, PW 36 Sh. D. S. Mathur in his further cross¬ examination dated 20.04.2012, page 7, deposed as to how the file was called back by Ministry of Law & Justice to give its opinion as under:

“.........I have been shown DoT file D¬7, already Ex PW 36/B, wherein vide note Ex PW 36/DK-16, the file was sent back by the Joint Secretary of Ministry of Law and Justice to the DoT for the reason mentioned therein. As per the noting of Sh. A. K. Srivastava at point A, the file was called back by the Joint Secretary, Law, on the same day. It is not clear from the file whether the information sought by the Ministry of Law and Justice was provided by the DoT or not. The signature of Sh. K. Sridhara, Member (T), bears the date of 01.11.2007 and below it there is endorsement with signature of Sh. A. K. Srivastava, which bears the date of 31.10.2007.........”

It may be noted that Ministry of Law & Justice in the first instance had declined to give any opinion citing lack of clarity in the reference but later on called the file back and gave an entirely different opinion. The evidence of Sh. D. S. Mathur has been quoted extensively above. If the same is read collectively, it is clear that he is not sticking to any point and changes his opinion with the change of question. He has justified his reply to the Finance Secretary regarding non¬revision of entry fee and at the same time tried to resile from it. He first wrote a letter to the Finance Secretary justifying non¬revision of entry fee and thereafter, also agreed with the note of Member (F) regarding the need for revision of entry fee without citing any good reason. Once these two officers had justified non-revision of entry fee to the Finance Secretary, there was no reason for them to rake up the issue again without citing any good reasons. The most unfortunate part is that Member (F) cited the same letter of Finance Secretary for raking up the issue, a reply to which had been sent with her consultation. This shows the obstructive attitude of the two officers. The end result is that Sh. D. S. Mathur is not a reliable witness and is capable of saying and doing anything. Thus, his testimony deserves to be discarded in toto. He is unworthy of reliance.  This made the case for A Raja stronger as DS Mathur was found to be lost and never in the line of duty.

TRAI RECOMMENDATIONS
The Recommendations of TRAI were examined by a committee consisting of officers of DoT and the same were placed before the Telecom Commission, which also approved the same on 10.10.2007 and this was conveyed to the AS branch vide Ex PW 36/A¬13 (34/c). Accordingly, note dated 11.10.2007, Ex PW 36/A¬14 (D¬5, 7¬18/N), was recorded regarding the TRAI Recommendations and approval thereof by the Telecom Commission. The same was agreed to by DDG (AS) PW 60 Sh. A. K. Srivastava, Member (T) PW 77 Sh. K. Sridhara and Secretary (T) PW 36 Sh. D. S. Mathur. The Recommendations were approved by Sh. A. Raja on 17.10.2007 at 19/N.  PW 60 Sh. A. K. Srivastava in his cross¬examination dated 12.09.2012, pages 3 and 4, deposed on the aforesaid point as under:

“........It is correct that an office order dated 15.10.2007 already Ex PW 36/DK¬9, file D¬7, already Ex PW 36/B, page 109, was issued for processing UASL applications and thereunder a committee was constituted which were to process the applications in the manner mentioned in this order. After scrutiny of an application for UAS licence, the same is put up before Member (T) accompanied by the feedback of the processing officers and Member (T) marks the same to Secretary (T). Volunteered: Occasionally an application may be marked to Member (F) before being marked to Secretary (T).

It is correct that thereafter the application is submitted to Minister, MOC&IT, who is the competent authority to grant the approval.......”

Thus, deposition shows that TRAI Recommendations were duly examined.

ON CONSPIRACY
A man join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”

FAMILIARITY OF ACCUSED
PW 153 Sh. Vivek Priyadarshi, Investigating Officer, in his cross¬examination dated 18.11.2013, pages 16 and 17, deposed as under:

“I had written a letter to Ministry of Environment and Forest asking for certain documents relating to the groups involved in the instant case and I did receive a response, but the same has not been placed on the record of this case. I did not record statement of any official of this Ministry. It is wrong to suggest that this response did not suit the prosecution version and for this reason I did not place the same on the record of this Court.”

PW 153 in his further cross¬examination dated 19.11.2013, page 20, deposed as under:

“It is correct that a Minister has a daily list of appointments both for residence as well as office. A gate register is also maintained. No gate register or appointment diary of accused A. Raja have been seized during his tenure as Minister for Environment and Forests.” The Investigating Officer could not collect any evidence, oral or documentary, from the Ministry of Environment and Forests regarding the meetings of accused.  From the perusal of the deposition referred to above, it is clear that there is no legally acceptable material on record to show that three accused, namely, Sh. Shahid Balwa, Sh. Vinod Goenka and Sanjay Chandra, used to meet Sh. A. Raja and were familiar with each other from before, that is, during the tenure of Sh. A. Raja in the Ministry of Environment and Forests. PW 113 Sh. Krishan Goyal has deposed that Protiviti Consulting (P) Limited conducted due diligence of Green House Promoters (P) Limited, on being engaged by DB Realty Limited vide agreement dated 10.06.2008, Ex PW 113/A (D¬785), and it submitted a draft due diligence report, Ex PW 113/B (D¬786). He also deposed that part fee was also paid by DB Realty Limited. He deposed that two persons, namely, Sh. Venkat Iyer and Sh. Navil Patel were involved from DB Realty. There is absolutely no evidence in the deposition of these witnesses indicating any relations between Sh. A. Raja and Sh. Shahid Balwa and Sh. Vinod Goenka. At best it shows an inchoate transaction between the two companies. From the material on record, it cannot be said that there was any relation/ association/ familiarity between Sh. A. Raja, Sh. Shahid Balwa, Sh. Vinod Goenka and DB Realty Limited from before. Moreover, mere familiarity does not mean conspiratorial familiarity. Moreover, deposition referred to above does not reveal as to what the accused used to talk and plan relating to the conspiracy alleged in the case.”

In conclusion, while all the 17 accused have been let off by the Special Court; the Judgment of the Special Court would soon be appealed by CBI and in future, both High Court & Supreme Court would be replaying the same ball with different bats. On political front, the judgment would provide fresh lease to UPA in the coming years and India would either see a change in power or a strong opposition or both in the General Election - 2019.

The kind of political churning 2G Issue has provided to our system, would always be unmatched. For launching the idea of ‘notional loss’ in 2G, the then CAG may apply for Nobel Prize too. But history would surely record that the Theory of ‘Presumptive Loss’ given by CAG in 2G has failed its first Litmus test.

   The author MR. VIVEK NARAYAN SHARMA is an Advocate-on-Record of the Supreme Court of India. 

VIVEK has successfully filed several important PILs for Welfare of Society like Delhi Government’s illegal Power Subsidy (2013); Corruption in Censor Board (2011-12); Foreign Adoption (2012); argued PIL in Nirbhaya Gang Rape case (2013) & gave valuable suggestions to Govt. seeking change in JJ Act and paved way for trial of juvenile under IPC in serious crimes. Vivek has filed PILs i.e. Demonetization case (2016) & Homebuyers case (2017) before Supreme Court. In Demonetisation case, Vivek sought cushion, comfort, ease and welfare of general public during the demonetization process and gave important suggestions to the erstwhile Attorney General. These suggestions were implemented by Govt. VIVEK is also National Advisor to National Youth Awardees Federation of India (NYAFI). VIVEK aims to work for social welfare and to eliminate discrimination among gender, classes and religions and is a known philanthropist and social reformer.)

DISCLAIMER: This article was prepared or accomplished by MR. VIVEK NARAYAN SHARMA in his personal capacity. The opinions expressed in this article are the author's own and do not reflect the views of the www.IndiaOnline.in Network.