New Delhi: Five corporate honchos, including Unitech Group MD Sanjay Chandra and Group MD of Reliance ADAG Gautam Doshi, will remain in jail in the 2G case with the Delhi High Court today dismissing their bail pleas, saying "the gravity of offence itself is sufficient to deny bail".
Besides Chandra and Doshi, Justice Ajit Bharihoke also rejected the bail applications of high-profile accused Swan Telecom co-promoter Vinod Goenka, ADAG Group President Surendra Pipara and Senior Vice President Hari Nair, who are cooling their heels in Tihar jail since April 20.
"Taking into account the gravity of the accusation against the petitioners a reasonable possibility of their interfering with the process of justice by tampering with the evidence, I do not deem it appropriate to release the petitioners on bail at this stage when further investigation in the matter is going on and the trial is yet to begin," the court, in its 34-page order, said.
The defence of corporate leaders that they should have been granted bail by the special CBI court as they were not arrested during the probe failed to impress the court.
"This circumstance, in itself, gives an insight into the influence wielded by the petitioners during investigation," the court said and referred to the inaction and delayed probe in the case.
"From the record, it is evident that despite of having collected prima facie evidence of involvement of petitioners in deep-rooted conspiracy involving corrupt practice by the public servants to cause huge wrongful gains to the favoured companies of the petitioners running into thousands of crores of rupees, neither of the petitioners was arrested by the CBI nor they were taken into custody and produced before the court along with the charge sheet...," the court said.
The court referred to various judgements to reject the plea of noted criminal lawyer Ram Jethmalani and others that the offences, which entail either life term of death penalty as maximum sentence, were serious and the corporate accused deserved to be granted bail as the maximum jail term was seven years for the crime attributed to them.
"To my mind, quantum of sentence alone cannot be yardstick for measuring the gravity of offence. Another parameter to measure the gravity of offence is the impact of the offence on the society. The offences against body or property generally affect one or few victims, but the economic offences involving exploitation of public offices have a potential to impact the society at large," the court said.
"When a loss is caused to the state exchequer, every citizen suffers because the money could have been used for the development of the country or for public welfare measures like food, health, education etc," the court said.
Highlighting the Supreme Court ruling in the Satyam fraud case, the court said, "In the instant case, the petitioners have been shown to be prima facie involved in criminal conspiracy resulting in a financial loss to the tune of around Rs 30,000 crore and corresponding gains to their companies running into thousands of crores of rupees."
"This is an offence of highest magnitude which not only impacts the society at large but also puts a question mark on the governance in the country which can adversely affect the economy of the country."
The plea that the accused co-operated during the probe and cannot either tamper with the evidence or influence the witnesses was also disallowed by the court which said that after filing of the charge sheet the names of their employees, supposed to depose against them, are out.
The court said that the non-arrest of accused during the probe was one of the factors and cannot be the "sole determinant" as there was a change in circumstances due to filing of the charge sheet.
"The fact that the charge sheet against the petitioners have been filed and there are no allegations that the petitioners tried to influence the witnesses during investigation, cannot be a guarantee that during trial, the petitioners would not try to interfere with the process of justice by tampering with the witnesses," it said.
The court also referred to the charge sheet to lay emphasis on the allegations against the corporate leaders.
"It cannot be ignored that during investigation the petitioners could not have known the identity of the witnesses examined during investigation. The situation has changed after the filing of charge sheet. Petitioners are now aware of the identity of the witnesses and incriminating statements made by them during investigation.
"Therefore, given the magnitude of the offence and the role played by the petitioners in the scam, there is a reasonable likelihood of the petitioners tampering with the witnesses, particularly when employed in the companies controlled by them," it said.
Justice Bharihoke, however, clarified his observations be not "treated as finding on the merits" of the case.
The court, in its order, discussed the roles of Sanjay Chandra of Unitech, Vinod Goenka of Swan Telecom and three top officials of Reliance ADAG separately, saying they conspired with former Telecom Minister A Raja and DoT officials to cause a loss of Rs 30,000 crore to the state by manipulating the first-come-first-served (FCFS) policy.
The court also considered the plea of special prosecutor U U Lalit that the accused, who got the licenses at throw-away price by manipulating the FCFS policy, "made the kill" by offloading their shares to MNC telecom players.
"The enterprise value of Unitech Group of Companies was pegged at Rs 4,400 crores of which Rs 1,146.7 crores was shown as external debt and Rs 773 crores was shareholders loan and net equity worth of promoters as against the actual investment of Rs 138 crores was treated as Rs 2,480 crores.
"Thus, with the grant of Letter of Intents (LoIs), the promoters of the Unitech Group of Companies got monetary gain of Rs 2,342 crores," the court said.
It also said that Vinod Goenka along with Shahid Balwa of Swan Telecom, who got UAS licence and scarce spectrum in 13 telecom circles including Delhi, sold the shares to UAE-based Emirates Telecommunications Corporation (ETISALAT) and Genex Exim Ventures Private Ltd and earned huge profits.
ETISALAT subscribed to 11,29,94,228 shares of Swan Telecom of face value Rs 10 at a huge premium of Rs 275.71 per share for a total consideration of Rs 3228 crores, it said, adding that shares were sold on the same lines to Genex Exim Ventures also.
"This gives a glimpse of quantum of monetary gain reaped by the accused Shahid Balwa and Vinod Goenka," it said.
The Reliance officials, who created Swan to circumvent the then telecom policy debarring existing firms, promptly off-loaded its equity in Swan after the Reliance telecom was granted the UAS licenses due to change in the policy, it said.