Tuesday, August 28, 2012

PTI, Aug 4, 2011

The affordable billing of one paise per second could not have become a reality had government auctioned 2G licenses as suggested by CAG, Swan Telecom today told a Delhi court and sought discharge saying the 'hypothetical' loss of Rs 1.76 lakh crore cannot be a ground for its prosecution.

“The act of causing possible and hypothetical loss of Rs 1.76 lakh crore to the state exchequer, which the government is denying, cannot be a ground for criminal prosecution of a company.”

“Such issues are policy decisions and the government has to frame policies by keeping in mind the social upliftment of mits people and revenue generation and if government would have gone for auction of licenses, then the billing of one paise per second could not have become a reality,” Amit Desai, counsel for Swan, now Etisalat DB, told CBI Judge O P Saini.

The courts should not interfere with the policies of the government. The policy can be bad but cannot be 'criminal' as the state has to ensure the welfare of citizens besides revenue generation, he contended.

Desai, arguing for the firm which is also an accused besides its promoter Shahid Usman Balwa and director Vinod Goenka, said “the company, being a juristic person, did not commit any criminal act. At best, CBI could have used it for identifying Balwa and Goenka.”

“The company on its own did not commit any criminal act and the charge sheet does not specify any such acts,” he said.

The counsel, who may continue with his arguments tomorrow as well, said the Telecom Regulatory Authority of India (TRAI) is a 'specialist' body on the issue and the government did the right thing by following its guidelines.

“The CAG, being an auditor, is an advisory body which accounted notional and presumptive loss which cannot be relied for criminal prosecution.”

Desai sought discharge of Swan Telecom, accused of hatching a conspiracy with others, including former Telecom Minister A Raja, and defrauding the exchequer, saying the whole case is based on CAG's computation of 'notional loss'.

He hailed present Telecom Minister Kapil Sibal for his recent statement that the government did not incur any loss and said "it hit the root of CBI's case.”

Desai termed the 2G case as a 'classic' example of a battle between CAG and TRAI.

“CAG is an auditor and its opinion comes in the hindsight whereas TRAI is a statutory body which has a specific role in the telecom sector. It is the specialist.”

“Who is going to judge who is right? Whether CAG is right or TRAI? Statute obliges TRAI to make recommendations and the government is obliged to work towards achieving the objectives of the National Telecom Policy, 1999, to increase tele-density at affordable prices in rural areas,” he said.

CAG's findings that had the government auctioned 2G license it would not have lost Rs 1.76 lakh crore is all 'presumption' and CBI cannot find fault with the government policy by using the CAG report, Desai said.

“It was not within the purview of CBI to decide on the correctness of the CAG report or the TRAI recommendations. It is outside the domain of CBI to say that CAG is right. The courts also cannot fault the process adopted by various government departments,” he said.