Two jailed directors of a DB group company and accused in 2G scam today told a Delhi court that CBI was linking two separate money transactions, one between Dubai-based Etisalat and Swan Telecom and another between Dynamix Realty to Kusegaon, to prove its case.
Asif Balwa and Rajeev Agarwal opposed framing of charges under various provisions of the IPC and the Prevention of Corruption Act for their alleged roles in felicitating transfer of Rs 200 crore bribe through their firm Kusegaon Fruits and Vegetables Pvt Ltd.
The alleged bribe ultimately reached to DMK-run Kalaignar TV whose stakeholders, Kanimozhi and Sharad Kumar, are also co-accused in the case.
CBI, in its charge sheets, alleged Shahid Usman Balwa- promoted Swan Telecom, an accused in 2G scam, got Rs 3,228 crore from Etisalat and immediately after, Rs 209 crore was moved from Dynamix Realty to Kusegaon Fruits as bribe which finally reached Kalaignar TV.
"These two are independent transactions which CBI has been linking. CBI has connected the transactions between Etisalat and Swan and the one between Dynamix and Kusegoan even when there is no relation between the two companies," Vijay Aggarwal, counsel for both directors, told Special CBI Judge O P Saini.
Both the accused have been chargesheeted for routing Rs 200 crore bribe to Kalaignar TV in which Kanimozhi, Sharad Kumar and DMK supremo M Karunanidhi's wife Dayalu Ammal hold 20, 20 and 60% stakes respectively.
The offloading of equities by Swan Telecom, now Etisalat DB, to Etisalat after receiving Rs 3,228 crore and alleged bribe trail of Rs 200 crore are two separate transactions and "unconnected" with each other, the defence lawyer, seeking discharge from the case, said. "The two unconnected transactions were connected and the second charge sheet was filed by CBI because the agency knew that its first charge sheet could not stand on its own feet and so the second charge sheet was nothing but crutches provided to the first one," he said.
There are contradictions in the second charge sheet filed on April 25, he said.
"There are three inherent contradictions in the charge sheet -- we do not know when did the conspiracy for Rs 200 crore quid-pro-quo start, source of this money is not there and the basic case of CBI is turned upside down," he said.
He also rubbished CBI's claim that the two Directors of Kusegaon Fruits and Vegetables Pvt Ltd created "ante-dated documents" after registration of the FIR in 2009 to give the transaction of Rs 200 crore the colour of loan transaction.
"The documents CBI has annexed with the charge sheet are the ones that had come into existence in the year 2008, much before the registration of FIR in October, 2009.
"All these documents are prior to the arrest of former Telecom Minister A Raja or even before he was called for questioning. In the FIR, there is not even a single mention of Rs 200 crore. Documents which came into existence before FIR cannot be termed as fabricated," he said.
The directors said the alleged routing of Rs 200 crore from Kusegaon Fruits, a farming company, to Cineyug Films Pvt Ltd, led by co-accused Karim Morani, were meant for shares subscription and was not the bribe money as alleged by CBI.
The money was transferred from Kusegaon Fruits to Cineyug during January 2009 to July 2009. "However, the agreement was executed late January 2009," the defence lawyer said.
Till February 24, 2011, there was no allegation by CBI that the accused had felicitated the bribe trail and hence, there was no need for the accused to "falsify documents and create a reverse money trail," he said.
"Swan Telecom was totally different from DB Realty and there is no cross holding between the two," he said.
"If Etisalat-DB got the licence, my clients (Asif and Rajeev) have not benefited from it," he said, adding "it is not as if CBI does not know that their case is fractured, which is why they said that even if the transaction of Rs 200 crore is taken to be a loan transaction, it is a case of inadequate consideration."
Agarwal rejected the CBI plea that the money paid by Dynamix, a realty firm, to Kusegoan Fruits was unjustified.
Kusegaon was incorporated under the Companies Act to carry out farming activities but was later changed to Kusegaon Realty and it had lending and borrowing of money in its objects, he said. The defence lawyer accused CBI of not mentioning Kusegaon Realty in its charge sheet to "mislead and create an impression that how a company dealing in farming is also involved in advancing and procuring money."
"They are creating an impression that why should Dynamix, a realty company, give money to a fruit and vegetable company where in fact it is a realty company giving money to another realty company and there is nothing wrong in it," he said.
He said there was nothing wrong in investing money in Kalaignar TV by even Cineyug Films Pvt Ltd.
"Is it a law that only a non-banking financial company can give a loan? Here, a private entity is giving loan to another private entity, which is permitted by law," he said.
The defence counsel referred to the statement of a Citi Bank official, a prosecution witness in the case, to drive home the point that there was no fabrication of documents by his clients, as alleged by CBI, as they had submitted some of the documents with the bank way back in 2009.
He submitted CBI has framed an opinion against his clients but they are unable to complete the chain of events as their stand was contradictory.
"Even a lay man cannot form an opinion, based on these documents and statements, that I have committed any offence. It is only CBI which is making an opinion out of it," he said.
He said CBI's case was "diametrically opposite" and "inconsistent" and no conclusion could be drawn out of it.
"Even if all the documents are taken on record my clients are innocent and have committed no offence," he said.
The advancing of arguments remained inconclusive and would continue tomorrow.
