2G scam verdict: CBI, ED to move HC over acquittal, say special court failed to note evidence

The ED said that the acquittal by the court in PMLA prosecution by interpreting the term criminal activity to the extent of commission of an offence appeared to be erroneous.

Published: 21st December 2017 10:29 PM  |   Last Updated: 22nd December 2017 09:15 AM   |  A+A-

Rajya Sabha MP Kanimozhi, Former Telecom Minister A Raja (EPS | Shekhar Yadav)

By Express News Service

NEW DELHI: The CBI and Enforcement Directorate (ED) will challenge a special 2G court’s verdict acquitting all accused, including former telecom minister A Raja and DMK MP Kanimozhi, before the Delhi High Court.

“It appears that the evidence adduced to substantiate the charges by the prosecution has not been appreciated in its proper perspective by the Learned Court. CBI will be taking necessary legal remedies in the matter. In due course, CBI will be filing an appeal,” the CBI said in a statement.

For its part, the ED put out a statement saying: “The Directorate of Enforcement has decided to move an appeal against the judgement of the Special Court, inter alia, on a number of grounds based on the facts as well as legal provisions.”

On the acquittal of 19 persons accused of money laundering, the ED said the special court surmised that no scheduled offence was committed by them as per the CBI chargesheet. The acquittal is also based on the court’s findings that there are no proceeds of crime (as per PMLA, which is a predicate offence) in the absence of any crime (offence under IPC or Prevention of Corruption Act).

“The Special Court appears to have failed to appreciate a number of factors which, inter alia, position the offence of money laundering as standalone offence. Besides the observation / findings of the Supreme Court in this case appear to have not been considered by the Special Court,” the statement further said.

“The offence of money laundering as defined under Section 3 is, inter alia, based on the term proceeds of crime. Proceeds of crime is defined under Section 2(1) (u) of PMLA, which considers only the criminal activity instead of commission of an offence. The acquittal by the Court in PMLA prosecution by interpreting the term criminal activity to the extent of commission of an offence appears to be erroneous,” the agency said.

The agency further said, “The Special Court has appreciated the material evidence qua offence of money laundering at the time of framing of charges against the accused persons but the same material appears to have not been considered while deciding the prosecution complaint (chargesheet) under PMLA and the accused persons have been acquitted from the offence of money laundering only on the basis of no commission of offence and not the occurrence of criminal activity.”

Trashing the CBI investigations, the 2G court said: “the prosecution failed miserably to prove any charge against any of the accused, made in its well choreographed chargesheet.”  
The court noted that Raja was shown to be the “mother lode of conspiracy in the instant case” but “there is no evidence of his no-holds-barred immersion in any wrongdoing, conspiracy or corruption.”

The 1,552-page judgment delivered on Thursday said: “There is no evidence on the record produced before the   Court   indicating   any   criminality   in   the   acts   allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first come first served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of STPL and Unitech group companies, non-revision of entry fee and transfer of `200 crore to Kalaignar TV (P) Limited as illegal   gratification.”
Lambasting the CBI for its failure in proving the charges, the court said, the chargesheet is based mainly on misreading, selective reading, non-reading and out of context reading of the official record.

“It is based on   some oral statements made by   the witnesses during investigation, which the witnesses have not owned up in the witness box.  Lastly, if statements were made   orally by the witnesses, the same were contrary to the official record and thus, not acceptable in law.”

“I may add that many facts recorded in the chargesheet are   factually incorrect, like Finance   Secretary strongly recommending revision of entry fee, deletion of a clause of draft LOI (Letter of Intent) by Sh. A. Raja, Recommendations of TRAI for revision of entry fee etc.,” Saini said.

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