The latest chargesheet by the Central Bureau of Investigation (CBI) in the 2G telecom spectrum scam has put the blame on three companies but not on any of its representatives. This, according to legal experts, will weaken the case as criminal intent is attributed to an abstract entity like a company. If charges are proven, the penalty would be a fine on these companies, they say. The court could, however, ask for compensation if the amount of fine is not considered adequate.
Besides, if convicted, the company would stand to lose corporate goodwill and reputation. Conviction could also mean further investigations under the Companies Law.
After much debate, legal opinion and the Supreme Court order to go by former director Amar Pratap Singh’s view, the CBI has decided to name just the three companies in the chargesheet filed on December 21, 2012 — Bharti Cellular (now Bharti Airtel), Hutchison Max and Sterling Cellular (both now a part of Vodafone India) — charging them for criminal misconduct and conspiracy. The CBI’s prime reason for not naming any individual was the lack of evidence, except for former telecom secretary Shyamal Ghosh.
However, experts feel if a company is liable, it is natural to assume an individual is complicit in the wrongdoing, since criminal intent cannot be attributed to an abstract entity like a company. According to lawyers, the lack of individual identification makes the chargesheet suspicious.
“A company cannot debate its liability, but it has to be an alter ego of a person, the guilty mind. Company is mute, it cannot speak for itself. Why is the CBI reticent about going the whole hog and pin-pointing the people involved?” asked senior advocate Aman Lekhi.
In a recent case filed by Iridium India against Motorola, the apex had ruled that a corporate body cannot claim immunity from criminal prosecution on the grounds that it is incapable of possessing the necessary mens rea (guilty mind) to commit a criminal offence.
A senior defence lawyer in the case, who did not wish to be named, said, “The chargesheet shows inconsistency on the CBI’s part. This only raises speculation that something is amiss.”
The latest case is also peculiar as the late Pramod Mahajan, former telecom minister, cannot be made an accused, landing the prime responsibility of the alleged scam on Ghosh’s shoulders. “The high court had come down on the CBI for naming Rajiv Gandhi in the Bofors scandal, since a dead person cannot be insinuated,” a senior advocate pointed out. The CBI chargesheet, however, has highlighted Mahajan’s involvement in criminal conspiracy along with Ghosh.
The CBI has so far denied any possibility of a supplementary chargesheet, such as the one it had filed in the case against former telecom minister A Raja. The investigating agency had named Rajya Sabha member Kanimozhi and Kusegaon Fruits and Vegetables directors Asif Balwa and Rajeev Agarwal, and Cineyug Entertainment managing director Karim Morani in its supplementary chargesheet, establishing a money trail to DB Realty, to establish quid pro quo between Raja and Swan Telecom.
Till recently, CBI had named corporate bigwigs in its previous chargesheets including Unitech’s Sanjay Chandra, Reliance Telecom’s senior executives Hari Nair, Gautam Doshi, Surendra Pipara and DB Realty directors Shahid Balwa and Vinod Goenka. In its second chargesheet, the CBI named Essar Group vice-chairman Ravikant Ruia and promoter-director Anshuman Ruia, Loop Telecom promoters Kiran Khaitan and I P Khaitan, besides Essar Teleholdings Limited CEO Vikash Saraf, Essar Teleholdings Limited, Loop Telecom and Loop Mobile India Limited.
