Explained: CBI Special Judge O.P.Saini’s Judgment in 2G Spectrum Cases [Part -II]

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.This is the Second Part of the series. Read the First Part HereQ: The Judge is also critical of absence of cross-examination of witnesses on crucial points. Is the prosecution to be blamed? A: The prosecution case is that priority for dual technology applicant was to be fixed from date of payment. PW, R.J.S.Kushvaha gave up the case of the prosecution, but he was neither re-examined or cross-examined by the prosecution. The prosecution, therefore, is bound by his deposition.The Judge cites a Supreme Court judgment to say that a witness must be cross-examined by his own party, and not necessarily by an opposite party. It is because it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses, the Judge elaborates further.Explained: CBI Special Judge O.P.Saini’s Judgment in 2G Spectrum Cases [Part -I]Q: What does the Judge say regarding the role of the accused during the trial?A: An accused is not supposed to prove his case beyond reasonable doubt. He has just to explain his conduct in reasonable and acceptable manner. Thus, he did not find any merit in the submission of prosecution that the amendment of licence was delayed for any conspiratorial reasons under the pretext of pending dues.Q: The Judge seems to have rejected instances of conspiracy, in the absence of legally admissible evidence, right?A: In paragraph 1284, he refers to leasing out of his house by R.K.Chandolia to STPL, ShahidBalwa and Vinod Goenka. Chandolia rented out his residential house C-6/39 2nd Floor, Safdarjung Development Area, New Delhi to Associated Hotels Private Limited, a sister concern of DB Realty Limited on March 3, 2009. Defence denied that Associated Hotels is a sister concern of DB Realty.The judge noted that even if the prosecution claim is correct, merely renting out the property does not show anything more than an ordinary relationship of landlord and tenant between Chandolia and Shahid Balwa. It is not indicative of any conspiracy by itself, unless supported by some other legally admissible evidence, which is missing in this case, the judge noted.Prosecution alleged that after allocation of spectrum, both STPL and Unitech Group of companies offloaded their shares. Etisalat (Mauritius) Limited subscribed to 11,29,94,228 shares of STPL on December 17, 2008 for a consideration of about Rs.3228 crore. Genex Exim Venture Private Limited also subscribed to 1,33,17,245 shares of STPL for Rs.380 crore. The prosecution alleged that Genex Exim Venture Private Limited also subscribed to 1,33,17,245 shares of STPL for Rs.380 crore. Dynamix Balwa Group promoted by Shahid Balwa and Vinod Goenka earned about Rs.2818 crore, as Tiger Trustees Limited held by them was having 90% equity of STPL.Unitech Group companies also offloaded their shares to Telenor Asia Private Limited, which agreed to infuse extra equity in the companies for a 66.5 per cent stake. By offloading the shares of the companies, the promoters of Unitech earned Rs.2342 crore.In Paragraph 1289, the Judge says that at that time, offloading of shares or issue of fresh equity was not prohibited by any rule or guideline. There was no lock-in period prescribed at that time by any rule or guideline, he adds.The Judge thus concluded that there is no merit in the submission of the prosecution that TTSL was wrongly denied dual technology spectrum in Delhi service area and the same was equally wrongly allocated to STPL.It is the case of the prosecution that STPL belonged to Reliance ADA group, an existing licensee, on the date of application, that is, on March 2, 2007. RCL, a company of Reliance ADA Group, was operating on CDMA standard. It was alleged that STPL filed applications in 13 service areas where Reliance ADAG/RCL had no GSM spectrum, so that it can avail the facility of GSM spectrum also without any permission from DoT. Therefore, it was in violation of clause 8 of UAS guidelines. Applications were filed by A.N.Sethuraman, an employee of Reliance ADA group, and PW2.Sethuraman deposed that...

Explained: CBI Special Judge O.P.Saini’s Judgment in 2G Spectrum Cases [Part -II]

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