The promoters of Essar Group on Wednesday told a Delhi court that no offence of cheating is made out against them as the government had not found any irregularity and illegality in granting 2G licences to Loop Telecom, which has been alleged by the CBI to be its front company.
Senior advocate Mukul Rohatgi, appearing for Essar Group promoters Ravi Ruia and Anshuman Ruia, said there cannot be intention to cheat when all the facts were available with the government.
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"The point which I am trying to tell is that there cannot be any concept of cheating when the person who is giving the licences is aware of what he is doing. He examines everything as there is some controversy.
"He knows there is nothing wrong or deceptive in it. Government found there is no irregularity and illegality in giving licence to this company," he told Special CBI Judge O P Saini.
Opposing the framing of charges against Ruias, Rohatgi said when all the facts are available, it cannot be cheating. It can be termed as cheating, when the facts are wrong and they are created, he added.
"There is no question of cheating. If we know all the facts then how is it cheating? Before licences were issued, a full examination takes place and it is clear from the stand of the government that whole thing was probed and then licences were given," he argued.
The CBI, in its charge sheet filed on December 12 last year, had named Essar Group promoters Ravi Ruia and Anshuman Ruia and Loop Telecom promoters I P Khaitan and Kiran Khaitan, besides Essar Group Director (Strategy and Planning) Vikash Saraf as accused in the case.
Besides the five persons, three companies -- Loop Telecom Pvt Ltd, Loop Mobile India Ltd and Essar Teleholdings Ltd -- are also accused in the case.
The CBI, in its charge sheet, has alleged that the accused had committed offences of cheating and criminal conspiracy for obtaining 2G licences in 2008.
During the arguments, Rohatgi said spectrum is not a property and it belongs to the government only, so no case of cheating is made out against the Ruias.
"No case under section 420 (cheating) of the IPC is made out as there is no transfer of property. Section 420 of the IPC only uses the word dishonest and it does not use the word fraudulently," he said.
Pointing out alleged lacunae in the CBI charge sheet, Rohatgi said the charges and allegations levelled against the accused are "imprecise" and "equally vague".
He said Ruias and Khaitans have been accused of violating clause 8 of the Unified Access Services Licences (UASL) guidelines, but the word 'associate' is no where defined.
"The clause (8 of UASL guidelines) is entirely capable of having different interpretation. If there is an ambiguity in it, it can never lead to prosecution.
"Unless you define what is associate, you cannot hold someone criminally liable for violating it. I cannot be charged for something which is vague. If you do not know legal meaning of associate, how can I be prosecuted," he said. The counsel argued that if the word associate can mean so many things, it cannot lead to criminal charges.
Rohatgi submitted that Ruias are being prosecuted for allegedly violating a guideline which is not a law and it is not known to the court or even the author (DoT) or any other body.
"There is no complainant in this case. The complainant could have been the DoT or the licensor or the government because it is a commercial transaction. Here no person was cheated," he said.
Rohatgi also argued as to how Ravi Ruia could be prosecuted when he was not a director or shareholder of any of the three accused companies.
"Ravi Ruia was not a director or officer or a shareholder of the accused companies but in the charge sheet he was named as promoter of Essar group. Promoter can be of a company and not of a group. He was director of Essar Investments from 2006-2008 and this company is not an accused," he said.
Senior advocate Siddharth Luthra, who appeared for Vikash Saraf, sought discharge of his client saying there was no criminality in the case. "It is not CBI's case that the Company Law has been violated. The intent that the CBI is trying to generate is not the intent which carries any criminality. There is no criminality in the case," he said.
Luthra also said the CBI has suppressed entire facts from the court and its charge sheet is defective.
"There is defect in the charge sheet. The CBI is not here to fix the liability on us. The charge sheet lacks clarity. The CBI is not clear about what they are saying and this is certainly not a case which constitutes criminal charges," he said.
He said the CBI is trying to create a doubt in the mind of the court that these transactions are "surreptitious."
Meanwhile, both the senior counsel also advanced their arguments on the bail of Ruias and Saraf saying they have co-operated during the investigation and there is no likelihood of them influencing the witnesses of the case.
Rohatgi and Luthra said their clients had appeared before the court after summonses were issued to them and they are also regularly appearing during every hearing of the case.
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