Decoding the 2G Judgment(s), Part 1: The Conspiracy That Wasn’t

In the first part of a special series, read why the CBI failed in the 2G scam case and if their appeal can succeed.

It’s safe to say that nobody saw the 2G verdict(s) coming, not after the way in which the facts and evidence had been presented to us for the last seven years. In the rush to put out takeaways from the judgment, it’s also been ignored that the case was not just about whether or not Raja and Kanimozhi received kickbacks to allocate the 2G spectrum at the price it was.

Much has been made of special CBI judge OP Saini’s criticism of the prosecution, and its inability to prove the charges, and also his comments about how the prosecution case deteriorated as time went on. But these comments only deal with one of the six issues that the main judgment dealt with. The main 1550 page judgment had six issues (relating to cheating, forgery, breach of trust and accepting illegal gratification), while the 105 page money laundering judgment dealt with a further issue.

In this multi-part series, we will break down the judgments to understand what the CBI needed to establish on each issue, why they failed to do so, and what this means for their chances of a successful appeal.

The Preliminary Issue: Was There a Pre-Existing Conspiracy?

A key part of the prosecution’s case that the accused knew each other well from before and therefore conspired to change the application system and dates for 2G spectrum allocation – and that this led to the massive losses to the exchequer since licences were granted on favourable terms to certain companies. It was important for the CBI to prove that this conspiracy existed, because Raja and Kanimozhi were not directly involved in some of the other offences alleged by the CBI.

Raja along with Kanimozhi and Sharad Kumar were also accused of receiving Rs 200 crore as illegal gratification from other accused parties, which was routed from Dynamix Realty to the television company Kalaignar TV (P) Limited with which they were connected – as reward for their role in the conspiracy.

The prosecution case for this whole pre-existing conspiracy rested on two contentions:

1. That Raja, during his tenure as Minister of Environment and Forests (2004-2007) had developed associations with DB Realty Limited (a company owned by Shahid Balwa and Vinod Goenka, two of the other accused) and Unitech Limited (a company owned by Sanjay Chandra, another accused). These two companies had applied for environmental clearances for some of their real estate projects, and it was alleged that to obtain these, Balwa, Goenka and Chandra used to visit Raja at his office and his residence, leading to a familiarity/association between them and Raja. (“Direct Association”)
2. That some family members of A Raja were on the board of directors of Green House Promoters (P) Limited, which DB Realty Limited conducted due diligence on, and then paid money to as an advance for purchase of land. On this basis, it was alleged that Raja had developed a further familiarity/association with Balwa and Goenka. (“Indirect Association”)

The problem was that Judge OP Saini was not convinced that any such conspiracy existed, and it is difficult to see how the CBI thought they had enough evidence to prove their contentions.

Why Did Judge Saini Find That There Was No Evidence of Direct Association?

First off, the only evidence they brought before the court to support their first contention was the testimony of Raja’s former Additional Private Secretary, Aseervatham Achary. They had no documentary evidence to support his claims that Raja met with the other accused 20 times, nor did they have any other witness to corroborate them – which seems strange since Achary does not claim that these meetings took place in secret.

In fact, Achary himself pointed out that their visits to Raja should have been reflected in the registers maintained by Raja’s security team and the engagement charts prepared for him. However, none of these documents showed that Balwa, Goenka or Chandra had visited Raja, and when these were shown to Achary, neither he nor the prosecution lawyers contested their authenticity.

Achary’s claims were further countered during Raja’s own testimony, and also by his Private Secretary RK Chandolia, who could not recall any file relating to their companies being approved by Raja in any case. The CBI somehow failed to contest this evidence either.

And on top of all of this, there are reasonable grounds to doubt the probity of his evidence – as Judge Saini points out, Achary first made his statement to the CBI on 24 March 2011, barely a week before the chargesheet in the case was filed. The case itself was registered on 21 October 2009. Given that Achary is the ONLY witness/source of evidence for the claim of conspiracy, it is highly suspicious that he was only contacted so late in the game. Saini is of the opinion that this

long delay in recording his statement alone is good enough to destroy the evidentiary value of his deposition.

Why Did Judge Saini Find That There Was No Evidence of Indirect Association?

If the CBI’s argument of Direct Association seemed a bit on the thin side, their argument as to how there was an Indirect Association between Raja and Balwa and Goenka was even more threadbare.

Essentially, the CBI was trying to say that there was a conspiracy between the accused because some of Raja’s relatives were on the board of directors of a company which was researched and then transacted with by another company which was connected with Balwa and Goenka. On the face of it, this is quite a stretch.

To make matters worse, none of the prosecution witnesses at any point indicated that Raja had anything to do with the due diligence or the advance payment or anything else between the two companies. A driver and several directors (including one who was a relative of Raja) were examined, but most of them didn’t even say anything relevant to the case!

And as the judge pointed out, even if some vague connection could be made out, that would still be insufficient to prove any sort of conspiracy between Raja and Balwa and Goenka, citing Supreme Court decisions which had dismissed claims of conspiracy that were based on similarly flimsy connections.

What Are the CBI's Chances on Appeal?

For the CBI to turn this around on appeal would require something quite special. It would have to show that the evidence submitted wasn’t properly appreciated by Judge Saini, and that in fact, the CBI evidence was sufficient to show that a conspiracy had taken place.

Conspiracy in Indian criminal law is defined in section 120-A of the Indian Penal Code 1860 (IPC), which says that a criminal conspiracy is committed when “two or more persons agree to do or cause to be done an illegal act or a legal act by illegal means.”

Judge Saini rightly points out that a finding of criminal conspiracy is not meant to be some easy thing used to drag a number of people under the net of some criminal act, and that courts have to guard against the danger of unfairness to the accused. The Supreme Court has consistently recognized that it is difficult to find compelling direct evidence of a conspiracy, and so circumstantial evidence is also sufficient – but that such evidence has to lead to a

conclusive or irresistible inference of an agreement between two or more persons to commit an offence.

Vague connections between the parties cannot be sufficient for holding that a criminal conspiracy has taken place, and yet the CBI’s evidence only seems to prove the vaguest connections at best. For a different view to be taken on the conspiracy issue would therefore need some new evidence to be produced.

But this is not something the CBI will be able to do when this goes to appeal, as new evidence will not be admissible. This will be a huge problem for the CBI, because Raja’s defence did a superb job on cross-examination and making sure the evidence recorded looks favourable to him.

Even if there were a way to argue around its failure to discredit Raja’s testimony, the CBI will still only be able to rely on Achary for its argument on the pre-existing conspiracy, which is uncorroborated and as mentioned earlier, highly questionable.

On this issue at least, therefore it looks like the prospects of turning this around for the CBI look bleak.

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