2G Verdict- Explained [Part-III] SPP Anand Grover Rebuts CBI Special Judge O.P.Saini’s Judgment in 2G Spectrum Cases

The December 21 judgment of CBI Special Judge, O.P.Saini, has been a pleasant surprise to the accused.  However, it has shocked many that the Judge found no one guilty for the so-called multi-crore scam, which led to a political upheaval, a Supreme-court monitored investigation and trial, and was a prominent issue in the 2014 general elections, resulting in the change of Government at the Centre.   LiveLaw tries to answer some questions which the judgment may possibly give rise to.

Q: What does senior advocate, Anand Grover, Special Public Prosecutor in the case, have to say about the judgment?

A: Anand Grover is hurt that the Judge made disparaging remarks about his role in the judgment unjustifiably.  Grover, therefore, has been talking to the media, to explain his point of view, so that Judge Saini’s ‘distorted’ view in the judgment does not go uncorrected and unchallenged.  First, Grover says that he joined the trial case proceedings only in 2014, after Justice U.U.Lalit, who was the SPP earlier, was elevated to the bench.  Much of the trial case proceedings were over during Justice Lalit’s term as the SPP.  When Grover joined, only the money laundering case remained.   But Judge Saini’s judgment makes it appear as if Grover alone is responsible for the prosecution’s so-called lapses. Secondly, Grover asks why Judge Saini framed as many as 1000 questions for Raja, and held that they were against him, and wasted the court’s time, if he is so convinced that there was no legally admissible evidence against him or other accused.  Third, Grover takes serious objection to Saini’s remark that the chargesheet is orchestrated.  If so, why did he not throw it out at the initial stage, he asks.  He reminds him that the Supreme Court approved the chargesheet.  Grover also denies that many of the witnesses were not cross-examined or not asked the right questions, as claimed by Saini in the judgment.  Lastly, Grover insists that he was right in refusing to sign his written submissions, because the rules say a senior advocate need not do so; but when Saini insisted, he relented and signed.  But this is such a trivial issue, but Judge Saini  exaggerated it, to make it appear as the serious one, sidelining other fundamental aspects of the case, Grover claims.

Q: How did the Judge deal with the issue relating to the alleged transaction of Rs.200 crore as payment for illegal gratification?

A:  Prosecution case is that Raja as Minister, granted UAS licences for 13 service areas to STPL, a company of DB group of Shahid Balwa and Vinod Goenka.   In consideration thereof, Rs200 crore was paid as bribe/reward by these companies to Raja which was parked in Kalaignar TV (P) Limited  in which Kanimozhi and Sharad Kumar were directors.   However, the prosecution gave up its case in its entirety during the examination of witnesses, as not a single question was put to any witness suggesting these facts, the Judge has concluded.    In response, Grover asks why the Judge himself did not or could not ask these questions, if, in his view, the prosecution failed to ask, during the cross-examination of witnesses.  According to him, records do show that all the  relevant questions were asked during the cross-examination.

The allegation is that money was routed through Dynamix Realty, KusegaonFruts and Vegetables (P) Limited and Cineyug Films (P) Ltd for the favours.  Witnesses were examined from all four entities, that is, from Dynamix Realty, Kusegaon  Fruits and Vegetables, Cineyug Films and Kalaignar TV.  Not even a single witness deposed that the transaction was meant for payment of illegal gratification or that it was a mala fide or sham transaction . “There was no suggestion that the transaction of illegal gratification was dressed up as loan.  Prosecution did not suggest to even a single witness.  To some witnesses, it was suggested that the transaction was not a bona fide one and the documents executed were bogus”, the Judge has recorded.

He further observed:  “A bogus document by itself does not mean payment of illegal gratification. These transactions per se are not illegal.  To make out a case of illegal gratification these documents would have to be linked to a public servant, which is lacking in this case”.

Almost all witnesses owned up the documents and transactions as genuine, and their version went unchallenged by the prosecution.  It was nowhere suggested to any witness that whatever may be the colour, character, or designation of the transaction between the four entities, it was, in fact, payment of illegal gratification to Raja.  There is no evidence, oral or documentary, to show that Rs.200 crore was illegal gratification meant for Raja and parked in Kalaignar TV, the Judge concluded.

The Judge further reasoned:

A case is to be decided on the basis of evidence led by the parties, and not on the basis of arguments alone.   Arguments are no substitute for evidence.  The end result is that prosecution failed to put its case to the witnesses indicating that it gave up its case during examination of witnesses itself.

The judge records that even the Investigating Officer resorted to rhetoric without bothering to submit admissible evidence.   Thus, PW 151 Dy SP S.K.Sinha deposed that the transactions of transfer of money, onward from Dynamix Realty to Kalaignar TV and its return to DR was “sham and dubious”.  “His conclusion is of no value in the eyes of the law, unless it is supported by some other legally admissible circumstantial evidence, which is lacking in this case.  The role of the IO is only to collect evidence.  His word, by itself, does not provide proof for commission of any offence.  He did not furnish any reason or evidence for calling the transaction sham and dubious, what to talk of its link with Raja” the judge observes in Paragraph 1697.

The chief IO, PW 153 Vivek Priyadarshi did not depose anything, not even a word, about the transfer of money through the four entities, the judge has added.

In Paragraph 1707, the Judge acknowledges that an amount of Rs.200 crore had moved from DB group of companies, the group to which STPL belongs, to Kalaignar TV, a company being run by the family members of the head of the DMK, a political party, of which Raja is also a member.  Prosecution alleged that this transfer of money was illegal gratification for the favours shown by Raja to STPL.

In Para 1708, the Judge says that none of the witnesses belonging to the four entities have supported the prosecution case.  There is no oral  or documentary evidence to link the transfer of Rs.200 crore to Kalaignar TV with Raja.  There is no evidence of demand and acceptance of illegal gratification by Raja.

Prosecution alleged that for transfer of money from Dynamix Realty to Kusegaon Fruits no formal agreement was executed, and the latter is a shell company with no history of business.

The amount of Rs.200 crore was transferred immediately after the investment was received in STPL on December 17, 2008 from Etisalat.  Rate of interest was less than the market rate and no proper securities were taken for the loan.

Money moved at an  unusual speed from one entity to another at a very proximate time.

In a case of political corruption, hardly any direct evidence would be available, prosecution argued, and the Judge concurred.

But the Judge was clear that high profile nature of a case could not be used as a ground for holding people guilty without legal evidence.  Lack of commercial prudence in execution of documents cannot be used as a ruse to hold people guilty of corruption, he added.  The transaction was between private entities and in a private entity, rate of interest, execution of securities, due diligence, etc., depend upon risk aversion or risk friendly attitude of the persons concerned.   Objectivity and rationality are not always hallmark of private commerce.  In case of close relations between the parties, risk mitigation procedures can be lowered or even can be given complete go-by.   Lack of these attributes in a transaction may, in a specific circumstance, indicate wrongdoing but for criminalizing them specific evidence is always required, he reasoned.

Prosecution cannot absolve itself of its burden to prove its case by piggy-riding on the so-called high magnitude of the case and media hype.  At the final stage, legally admissible evidence is required, he suggested.

There is an additional circumstance against the accused to the effect that the refund of Rs.200 crore had occurred immediately after registration of the instant case and on CBI taking various steps in the investigation including calling Raja for interrogation.  In the absence of any other evidence, this is also in the realm of conjectures and remote possibilities and requires no detailed discussion, he added.

Imperfect documentation does not indicate payment of illegal gratification. Perfect documentation also would not make a transaction of illegal gratification clean. Everything depends upon the facts of the case.  Link with public servant must be proved by legal evidence, he further reasoned.

Allocation of spectrum in Delhi service area was approved by Raja on August 26, 2008.  But the first tranche of money of Rs.10 crore moved only on December 23, 2008.  How to link the two is a huge problem, states the Judge. Things remain in the realm of conjectures and surmises, he says.

Q: Is there a single instance of the Judge supporting the Prosecution version at all anywhere in the judgment?

A: There is one. In Paragraph 1728, the Judge disagreed with the defence’ contention that the sanction for prosecution of R.K.Chandolia was not properly granted.