2G Leave Appeal DHC

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* IN THE HIGH COURT OF DELHI AT NEW DELHI


RESERVED ON – 14.03.2024.
% PRONOUNCED ON –22.03.2024.
+ CRL.L.P. 185/2018, CRL.M.A. 14255/2023, CRL.M.A. 14256/2023,
CRL.M.A.4631/2024, CRL.M.A. 4632/2024
CENTRAL BUREAU OF INVESTIGATION ..... Petitioner
Through: Mr. Sanjay Jain, Sr. Adv. (Sr. Special
Public Prosecutor) with Mr. Neeraj Jain, Mr. Ripu
Daman Bhardwaj & Mr. Rishi Raj Sharma
(Special Public Prosecutors), Mr. Anupam
Mishra, Ms. Noor Rampal, Mr. Yuvraj Sharma,
Mr. Nishank Tripathi, Ms. Harshita Sukhija, Ms.
Palak Jain, Ms. Shreeja Rawat, Mr.Gaurav Kumar
Arya, Advs. with Mr. Manoj Kumar, DSP-CBI.
versus

A RAJA & ORS ..... Respondents

Through: Mr. Manu Sharma, Mr. Balaji


Subramanian, Mr. Karl Rustomkhan, Mr. Kartikey
Masta, Mr. Gyanendra Kumar, Advs. for R-1 &
16.
Mr. Siddharth Luthra, Senior. Adv. with Mr.
Kartikeye Dang, Mr. Sahir Seth, Mr. Arjun
Varma, Mr. Aashul Agarwal, Mr. Tusharjeet
Singh, Advs. for R-2.
Mr. Mukul Rohtagi, Sr. Adv. with Mr. Vijay
Aggarwal, Mr. Shivek Trehan, Ms. Rishika Goyal,
Mr. Hardik Sharma Mr. Mukul Malik, Mr.
Pankush Goyal, Ms. Barkha Rastogi, Mr. Kshitiz
Garg, Mr. Puneet Dhawan, Advs. for R-3 to 5, 13
to 15.
Mr. Anshul Sehgal, Mr. Divyanshu Jain, Advs. for
R-6.

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Signature Not Verified
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By:PALLAVI VERMA
Signing Date:22.03.2024
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Ms. Rebecca John Sr. Adv. with Ms. Tarannum
Cheema, Mr. Akash Singh, Mr. Akshay N., Advs.
for R-7.
Mr. D. P. Singh, Mr. Vikash Kukreti, Mr. Manu
Mishra, Ms. Shreya Dutt, Mr. Imaan Khera, Advs.
for R-8.
Mr. Sidharth Aggarwal Sr. Adv., with Mohit Kr.
Auluck, Mr. Vivek Nagar, Advs. for R-9 & 11.
Mr.Hariharan, Sr. Adv. with Mohit Kr. Auluck,
Mr. Vivek Nagar, Advs. for R-10
Ms. Manali Singhal, Mr. Santosh Sachin, Mr.
Deepak Singh Rawat, Advs. for R-12.
Ms. Rebecca John Sr. Adv., Dr. Joseph Aristotle,
Sr. Adv. with Ms. Tarannum Cheema, Ms. Priya
Aristotle, Mr. Ashutosh Singh Rana, Mr. Arun
Pandiyan, Mr. Akshay N., Mr. Akash S., Advs. for
R-17.

CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA

JUDGMENT

DINESH KUMAR SHARMA, J:


INDEX
Sr No. Content Page No.
I. Brief Facts 3
II. Submissions of Petitioner/Appellant 6
III. Submissions of Respondents 16
IV. Rejoinder Submissions 96
V. Analysis & Findings 100

1. The present petition has been filed seeking leave to appeal under

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section 378(2) read with 386 read with 482 of the Code of Criminal
Procedure, 1973 1 against the order dated 21.12.2017 passed by Ld
Special Judge CBI Patiala House Court in CC NO. 1/11 (CBI Vs
A.Raja & Ors.).
I. I. Brief Facts
2. The briefly stated facts are that a Case bearing no.
RC.DAL2009.A.0045 was registered under Section 120-B read with
section 420/409/468/471/193 of IPC read with section 7 or in the
alternative Section 11/12 and 13(2) read with section 13 (1) (d) of the
Prevention of Corruption Act, 1988. The instant case was registered on
21.10.2009 against unknown officials of the Department of
Telecommunications (DoT), Government of India, unknown private
persons/companies, and others for the offences punishable under
various provisions alleging criminal conspiracy and criminal
misconduct, in respect of allotment of Letters of Intent (LOI), Unified
Access Service (UAS) Licences and spectrum by the Department of
Telecommunication.
3. The allegation in brief as levelled in FIR are as under:
(a) The entry fee for the new pan India UAS licences in the year 2008
was kept by Department of Telecommunications (DOT) as
Rs.1658 Crore, at which price the Cellular Mobile Telephone
Service (CMTS) licences were awarded by DOT after auction in
the year 2001. These UAS licences, issued in 2008 were issued on
first-come first-serve basis without any competitive bidding.
(b) A press release was issued by DoT on 24.9.2007, which appeared
1
herein referred to as Cr.P.C.

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in the newspapers on 25.9.2007, mentioning that the new
applications for UAS licences will not be accepted by the DoT
after 1.10.2007 till further orders. However applications received
up to 25.09.2007 only were considered, which was also against
the recommendations of Telecom Regulatory Authority of India
(TRAI) that no cap should be placed on the number of Access
Service Providers in any service area.
(c) Even First-Come First-Serve policy was implemented by the DoT
in a manner which resulted into wrongful gain to certain
companies. Further, there are allegations that the suspect officials
of DoT had selectively leaked the information to some of the
applicants regarding the date of issuance of letter of intent on
10.01.2008. In the letter of intent, an arbitrary condition was
incorporated that whosoever deposits the fees (as per conditions in
Letters of Intent, i.e. LoIs) first, would be the first to get license.
Since some of the applicants, who had this prior information, were
ready with the amount and they were able to deposit the fee earlier
than others. Thus, the favour was allegedly shown to some
applicants by way of leaking the information about the date of
issuance of the letter of intent.
(d) Although, the FDI limit was increased from 49% to 74% in
December, 2005, but there was no lock-in period or restriction
imposed on the sale of equity or issuance of additional equity. As
a result of this M/s. Swan Telecom Pvt. Ltd. (A-6), which paid to
DoT Rs. 1537 Crore for UAS Licences of 13 circles, offloaded its
45% equity to M/s Etisalat of UAE for Rs. 4200 Crore. Similarly,

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M/s. Unitech Wireless (Group of 08 companies), which paid to
DOT Rs.1658 Crore for UAS Licences of all 22 circles, offloaded
its 60% equity to M/s Telenor of Norway for Rs. 6100 Crore.
These stakes were sold by the said companies even before the roll
out of services by them. The estimated loss to Government by
grant of licences to these two companies alone comes to Rs. 7105
Crore. On pro rata basis, the estimated loss for all 122 UAS
Licences issued in 2008 was more than Rs. 22000 Crore.
4. After investigation, CBI filed charge sheet in court on 02.04.2011
against twelve accused persons, that is, A-1 to A-12. The
supplementary charge sheet was filed on 25.04.2011 against A-13 to A-
17. The supplementary charge sheet was ordered to be tagged along
with the main charge sheet vide order dated 24.05.2011.
5. The charges in the present case were framed vide order dated
22.10.2012. The prosecution examined 153 witnesses. The statements
of the accused persons were recorded under Section 313 Cr.P.C. Ten of
the accused persons examined 29 witnesses in their defenses. R-1/A.
Raja examined himself under Section 315 Cr.P.C. as DW-1. Sh. R. K.
Chandolia/R-3 examined himself as DW-22.
6. After the defense evidence, the prosecution moved an application dated
06.08.2014 for the summoning of five additional witnesses which was
allowed vide order dated 19.11.2014. The court after hearing the
arguments in detail which continued for around two years finally
passed a detailed judgment running into 1552 pages whereby all the
accused persons were acquitted.
7. The CBI aggrieved by this is challenging the impugned judgment. The

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CBI has sought leave to appeal against the judgment of the acquittal
dated 21.12.2017.
II. Submissions of Petitioner/Appellant
8. Sh. Sanjay Jain, learned senior counsel/Sr. Special Public Prosecutor
submitted that the primary allegation recorded in the charge sheet are
following:
“(i) Prior relationship of MoC&IT & his P.S. & the Secretary-
Telecom with the certain beneficiaries i.e. license allotees.
(ii) Cut-off date of receipt of applications was unilaterally
changed by MoC&IT against recommendation/advice.
(iii) First-cum-first serve policy was implemented / tinkered with
to cause undue gain to certain companies.
(iv) Licenses were issued on First-cum-first basis without
competitive bidding.
(v) Officials of DoT leaked information to the chosen few
(beneficiaries) regarding the date of issuance of Lol on
10.01.2008. They knew the condition that whosoever is first to
deposit the license fee (as per conditions of LOIs), would be the
first to get a license. Since some of the applicants, had prior
information, they were ready with the amount and were able to
deposit the fee earlier than others, resulting in a reshuffling of
priority thereby undue advantage to the chosen few.
(vi) Distribution of LoIs from the Four Counters: Certain
Applicants were ready with demand drafts due to prior
information resulting in a change of priority.
(vii) Non-revision of the Entry fee for PAN India UAS (Unified

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Access Services) license fee was kept at Rs. 1658 Cr., the price
fetched in 2001, causing a loss of about Rs. 22,000 Cr. to the
public exchequer.
(viii) M/ s. Swan Telecom Pvt. Ltd. (A-6), which paid to DoT Rs.
1537 Crore for UAS Licences of 13 circles, offloaded its 45%
equity to M/s Etisalat of UAE for Rs. 4200 Crore. Similarly, M/s.
Unitech Wireless (Group of 08 companies), which paid to DOT
Rs. 1658 Crore for UAS Licences of all 22 circles, offloaded its
60% equity to M/s Telenor of Norway for Rs. 6100 Crore. These
stakes were sold by the said companies even before the roll out of
services by them.
(ix) Pursuant to above, benefit illegal gratification was received by
Kalaignar TV of Rs. 200 Cr. which was returned immediately
after Supreme Court order of investigation.”
9. Learned senior counsel submits that the impugned judgment is bad in
law and facts as the Ld. Trial Court ignored material evidence and
circumstances. It was submitted that the irrelevant material was taken
into consideration and conclusions drawn were illogical on the basis of
surmises and conjectures. Learned senior counsel submitted that
defence witnesses have been given undue weightage and the credible
witnesses have been disbelieved.
10. Learned senior counsel submitted that for the purpose of the grant of
leave to appeal following glaring circumstances/errors are being
highlighted. Learned senior counsel made it clear that at this stage only
some of the material irregularities are being highlighted and the
prosecution deserves its right to argue it in further detail if the leave to

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appeal is granted. Learned senior counsel highlighted the following
material irregularities:
i.) Association/Familiarity between the Accused (Govt. Officials)
and Telecom License Applicants M/s. Swan Telecom (DB Group)
and M/s. Unitech Wireless (Unitech Group).
ii.) Fixation of cut-off date by officials to convey undue benefit to
M/s. Unitech Wireless (Unitech group),
iii.) Violation of "First Come First Serve Policy" & distribution of
LOI by Setting up Four Counters to upset priority of applicants.
iv.) Non-revision of entry fee,
v.) Pecuniary benefit received (Money Trail), transfer of Rs. 200
Crore & its return of money immediately after Hon'ble Supreme
Court ordered investigation vide order dated 16.12.2010.
A. Association/ previous familiarity between the Accused persons:-
11. Learned senior counsel submitted that in May 2007 A. Raja (A-1)
became MOC&IT and RK Chandolia (A-3) became his PS. On
01.01.2008, Siddharatha Behura (A-2) was appointed as Secretary,
Telecomm. It was stated that Earlier, when A-1 was MoEF (Minister
for Environment and Forest), A-2 was Additional Secretary and A-3
was his PS. It was further submitted that PW-7 who was Additional PS
to MoC&IT specifically stated that during his tenure as MoEF, A-1 had
given environmental clearances to real estate projects of M/s. DB
Realty (DB Group), M/s. Unitech, and many others, and A-1 used to
regularly meet the officials of these companies. However, Ld. Trial
Court disbelieved A-7 on flimsy grounds i.e., there was no entry in
Visitor Register; PW-7 is a man of political inclinations, and no MoEF

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record placed by the Prosecution.
12. Learned senior counsel submitted that A-3 had rented out his
residential house at Safdarjung Development Area, New Delhi to M/s.
Associated Hotels Pvt. Ltd. vide Rent Agreement dated 03.03.2009,
which is a sister concern of M/s. DB Realty Ltd. However Ld. Trial
Court brushed aside the evidence on this point on the ground that this is
Ordinary relationship of landlord & tenant, not indicative of conspiracy
in itself.
13. Learned senior counsel further submitted that relations between A-1
through Green House Promoters (P) Ltd., was rejected on the premise,
„Mere familiarity does not mean conspiratorial familiarity‟. Learned
senior counsel submitted that the Ld. Trial Court has fallen into error
by rejecting the evidence pertaining relation/association between A-1
and DB Group from before, saying that it may be possible that some
officials of DB Group might have got acquainted with family members
of A-1 during the process of due diligence of M/s. Green House.
14. Learned senior counsel further submitted that the credible evidence of
PW-7 that A-1 used to meet A-17 regularly and other DMK Ministers
was rejected on the ground that “This is in the realm of speculation
only”. Learned senior counsel submitted that the observation of the Ld.
Trial Court is erroneous.
B. Fixation of cut-off date by officials to convey undue benefit to M/s.
Unitech Wireless (Unitech group)
15. Learned senior counsel submitted that on 24.09.2007 a Press Release
was issued fixing the „Cut-Off Date‟ as 01-10-2007 for receiving
UASL, at the behest of A-1, disregarding the note given by DoT

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officials to the contrary. Learned senior counsel submitted that A-3
handled the processing and communication between A-1 & DoT. It was
submitted that the ultimate beneficiary was M/s. Unitech, since their
applications were filed on 24.09.2007 and immediately thereafter, the
instructions were received by DoT officials from A-1/A-3 to not accept
any more Applications, which led to releasing of the Press Release.
16. Learned senior counsel further submitted that on 26-10-2007, A-1 &
DoT approached MLJ (Ministry of Law and Justice) for opinion, which
gave its opinion on 01.11.2007 that the matter be referred to EGoM
(Empowered Group of Ministers). However, it was not done. It was
further submitted that despite the advice by DoT officials, no review of
the availability of Spectrum (circle-wise) was done. It was further
submitted that A-1 vide his communication dated 02.11.2007 to PMO
made a wrongful representation of the entire scenario on the process
being followed.
17. Learned senior counsel in this regard invited the attention of the court
to the testimony of PW- 36 (D.S. Mathur), PW – 60 (A.K.
Srivastava), DW-22 (R.K. Chandolia), DW-1 (A. Raja). Learned senior
counsel also invited the attention of the court to the document Ex. –
PW 36/E.
18. Learned senior counsel submitted that the Ld. Trial Court rejected the
prosecution case regarding criminal conspiracy to the effect that there
was a change of cut-off date to benefit private entities.
C. Violation of ‘First Come First Served Policy’ & distribution of LOI
by Setting up Four Counters to upset the priority of applicants:-
19. Learned senior counsel submitted that the Rule for UAS License or in

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general at DoT is "First Come First Serve" – for determination of
"priority" and "processing" of Applications. It was submitted that
however, A-1 made changes in the Draft LOI - stating that the „date of
payment of fee‟ would be the priority date. Learned counsel submitted
that this was objected to by DoT officials. However, A-1 sent a letter to
PMO on 26.12.2007 which was a wrongful representation of the entire
scenario of the process being followed.
20. Learned senior counsel submitted that A-1, A-2 & A-3 gave directions
to DoT officials that correspondence exchanged with PMO are policy
directives vide instructions dated 07.01.2008. Learned counsel
submitted that opinion of Ld. SG was taken on 07.01.2008 on Draft
Press Release, the last para of the opinion reads; “However, if more
than one applicant complies with LOI condition on the same date, the
inter-se seniority would be decided by the date of application”. Learned
counsel submitted that however this last para was deleted by A-1 & A-
2 and a Press Release was issued at 13:47 hrs. on 10.01.2008. It was
submitted that the Distribution method was tinkered with by setting-up
„Four counters‟. The „Four counters‟ opened at 3:30 pm and the
stipulation of allotment was – whoever pays first would be served first
thereby reshuffling of the „priority‟. Learned senior counsel submitted
that the parties with prior knowledge of this policy, kept their DDs
ready and were benefitted.
21. Learned senior counsel submitted that there are four limbs of
prosecution case namely – (i) Policy tinkered with, (ii) LOI‟s para 3
was changed (iii) setting up four counters (iv) allocation process
tailored to suit favoured entities who had prior information. In this

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regard, reliance was placed upon the testimony of PW-62 (A.S.
Verma), PW-60 (A.K. Srivastava), PW-36 (D.S. Mathur), PW-110
(Nitin Jain), PW-11 (Nripendra Misra – Chairman, TRAI). Learned
senior counsel submitted that however, Ld. Trial Court preferred the
version given by DW-1 and inter alia held that there was adherence to
the first come first policy. Learned senior counsel submitted that there
are contradictions in the impugned judgment. Attention was invited to
para. 758 to 769. Learned sr. counsel submitted that the court made
observation that the policy was not followed, however, it rejected the
case of the prosecution that manipulation of policy originated at the
instance of A-1.
22. Learned senior counsel submitted that the Ld. Trial Court in Para 798-
800 discussed the case of the prosecution that A-1 had changed the
policy regarding priority from the date of application to the time of
compliance. However, Ld. Trial Court reached on erroneous conclusion
against the material on record on its own hypothesis.
23. Learned senior counsel submitted that Ld. Trial court ignored the
credible evidence of PW-42 (Shah Nawaz Alam). Learned senior
counsel submitted that the Ld. Trial Court has wrongly disbelieved the
testimony of the then Ld. Solicitor General who was examined as PW-
102. Learned senior counsel further submitted that by setting up Four
Counters the priority was changed and there was also a change of
policy which meant the deposit of DDs for issuance of LOIs subverting
the „First Come First Serve‟ policy.
24. Learned senior counsel has invited the attention of the court to the
relevant para of the judgments where the Ld. Trial Court has reached

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on a conclusion on mere surmises and conjectures. Learned senior
counsel further submitted that PW-67 (Ms. Preeti Malhotra) in her
testimony clearly indicate prior knowledge about the change of policy.
However, the Ld. Court despite noting the same reached on an
irrational conclusion.
D. Non-revision of entry fee
25. Learned senior counsel submitted that A-1 recorded a note on
04.12.2007 regarding not revising the entry fee. Learned senior counsel
has invited the attention of the court to the Note dated 30.11.2007 by
Ms. Manju Madhwan, Member (Finance) PW-86. The attention was
also drawn to the letter dated 02.11.2007 from Hon‟ble Prime Minister
to A-1 seeking revision of entry fee. The attention was also invited to
the testimony of PW-36 (D. S. Mathur). Learned senior counsel
submitted that the Ld. Trial Court wrongfully supplied reason
justifying non-revision & putting blame on prosecution witnesses.
Learned senior counsel submitted that DW-1 was blindly followed.
26. Learned senior counsel has invited the attention of the court to para
1609 of the impugned judgment whereby the valid arguments placed
by the CBI were rejected summarily by the Ld. Trial Court in para
1610. It has further been submitted that similarly the examination of
PW-78 (D. Subba Rao – Finance Secy.) has been recorded in para 1614
but Ld. Trial court rejected the testimony of PW-78 (D. Subba Rao –
Finance Secy.) in para 1624 and termed it as of no use to the
prosecution.
27. Learned senior counsel also invited the attention of the court to para
1633 of the impugned judgment whereby the Ld. Trial Court inter alia

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held that there was no material on record to indicate any insistent
assertion or objective analysis by anyone for the need of revision of the
entry fee and it was all general talk.
E. Pecuniary benefit received (Money Trail).
28. Learned senior counsel submitted that there are certain relevant dates
which are as follows:

29. Learned senior counsel submitted that above said money trail was
recorded by the Ld. Trial Court in para 367 of the impugned judgment.
Though the Ld. Trial Court recorded this allegation in para 367-370.

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However, it summarily rejected the allegation and inter alia held that
mere familiarity does not mean conspiratorial familiarity. Learned
senior counsel submitted that transaction of Rs. 200 Cr. started on
23.12.2008 and ended on 11.08.2009. It was submitted that the money
trail was originated from M/s. Dynamix Realty to M/s. Kusegaon Fruits
to M/s. Cineyug Films and to M/s Kalaignar TV. Learned senior
counsel submitted that the money was returned after the order of
Hon‟ble Supreme Court on 16.12.2010 and A-1 was summoned by
CBI, between the period of 20.12.2010 to 28.02.2011.
30. Learned senior counsel submitted that the Ld. Trial Court rejected the
evidence of PW-151 (DSP S. K. Sinha) and in para 1670 rejected the
entire case on the ground that mere movement of money at fast or
meandering speed does not make a transaction corrupt. Learned senior
counsel submitted that the conclusion of the Ld. Trial Court that the
return of money after registration of the case was only in the realm of
conjectures and remote possibilities is totally erroneous. The attention
was invited to para 1717, 1718, and 1719 of the impugned judgment.
31. Learned senior counsel submitted that at the stage of leave to appeal
the court is only required to see whether any arguable points have been
raised by the prosecution. Learned senior counsel submitted that in
State of Maharashtra vs. Sujoy Mangesh Poyarekar2 the Apex Court
inter alia held that at the stage of grant of leave the High Court is
required to apply its mind to consider whether a prima facie case has
been made out or arguable points have been raised. Learned senior
counsel submitted that it was further inter alia held at this stage the
2
(2008) 9 SCC 475

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High Court is not required to examine whether the order of acquittal
would or would not be set aside.
32. Learned senior counsel has further relied upon Brijesh Singh vs State
of UP and Others3. Learned senior counsel submitted that the Apex
Court in this case inter alia held that the High Court at the stage of
leave to appeal must set forth its reasons, indicating at least in brief, an
application of mind to the nature of the evidence and the findings
which have been arrived at.
III. Submissions of Respondents
Submissions on behalf of Respondent No. 1/A. Raja
33. Sh. Manu Sharma, learned counsel for respondent no. 1 submitted that
his submissions are confined to the point that whether CBI has made
out a case for grant of leave to appeal. Learned counsel submitted that
the Ld. Trial Court has delivered a detailed judgment with an
exhaustive analysis of the material and most liberal view has been
taken of all the witnesses and no evidence has been discarded for
hyper-technical reasons. Learned counsel submitted that by no stretch
of the imagination, the impugned judgment be called „prima facie
perverse‟. Learned counsel therefore submitted that the leave to appeal
may not be granted. In regard to the fixation of entry fees, learned
counsel submitted that CBI has not even contended that the fixation of
entry fees was a result of conspiracy. It was further submitted that ten
companies got licenses at the same entry fees and therefore it is an
absurd theory that there will be a conspiracy with two of them to
benefit all ten. Learned counsel submitted that the licenses issued just
3
(2021) 8 SCC 392

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one year earlier were also at the same price.
34.Learned counsel further submitted that the Learned Senior Public
Prosecutor quoted the judgment of the Ld. Trial Court and gave a
misleading view. Similarly, learned counsel submitted that the stray
4
sentences from the Telecom Regulatory Authority of India
recommendation were relied upon by CBI without placing proper
context. It was submitted that TRAI‟s own communications to CBI
were suppressed in this regard.
35. Learned counsel submitted that TRAI in its letter dated 26.05.2008 [Ex
PW-11/W] recommended the same entry fee as was taken from the
fourth cellular operator for grant of CMSP/UAS license in the year
2001. Learned counsel submitted that further TRAI in its letter dated
20.08.2011 [Ex PW-131/DB] inter alia stated that it is against this
background that TRAI did not recommend in August 2007, auction
methodology nor did it recommend any increases in the entry fees for
new players by way of indexation or otherwise.
36. Learned counsel has invited the attention of the court to the testimony
of PW-36 and Ex PW 36/C-2 to emphasis the point that there was a
detailed discussion in the DoT on TRAI recommendations. The
attention was also invited to DoT file Ex PW36/A-3 and Ex PW-
36/DP. Learned counsel submitted that even the Hon‟ble Prime
Minister in Lok Sabha on 24.02.2011 stated that there was nothing
wrong in the telecom policy. The reference was made to Ex PW-
66/DA. The attention was also invited to the Tenth Five Year Plan, Ex
PW-36/DG-1 & DG-2 to emphasis that revenue generation should not
4
Herein referred to as TRAI.

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be a major determinant of the macro policy governing the sector.
Learned counsel submitted that in fact the policy was that Spectrum
policy needs to be promotional in nature and revenue considerations
play a second role.
37. Learned counsel submitted that the Ld. Trial Court in para 1529 to
1633 considered the evidence of all the relevant PWs and rejected the
case of the prosecution on the ground that selective reliance was placed
on para 7.39 of the 2003 recommendations and para 2.78 of the 2007
recommendations.
38. Learned counsel submitted that the Ld. Trial Judge has taken all the
relevant material into consideration. Learned counsel further submitted
that the National telecom policy was framed by the Central
Government. Ld. Counsel described the entire background of the
telecomm policy right from 1994.
39. Learned counsel submitted that TRAI confirmed the existing entry fee
and invited the attention to document Ex PW92/DE. It was submitted
that between the period 2004 to 2007, 51 UAS licenses were granted
based on the same UASL guidelines with same entry fee as in 2008. It
was submitted that the revised UASL guidelines were issued and
reference was made to TRAI regarding cap on number of service
providers and review of license terms and conditions.
40. Learned counsel submitted that in April 2007 DoT decided that further
processing of pending UASL applications as well as new applications
will be carried out after receipt of TRAI recommendation. It was
further submitted that R-1 assumed charge on 15/16.05.2007 as
MoCIT. The TRAI recommendation were received on 28.08.2007 and

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accepted by DoT on 17.10.2007. Learned counsel submitted that vide
communication dated 26.05.2008 TRAI reiterated no increase in entry
fee. The attention was also invited to D-821 which is letter from TRAI
to IO dated 20.08.2011.
41. Learned counsel submitted that regarding the relationship between the
accused persons the only testimony lead by the prosecution is PW-7.
Learned counsel submitted that this has been rightly rejected by the Ld.
Trial Court for the reasons as contained in para 355 to 365 of the
impugned judgment.
42. Learned counsel submitted that the testimony of PW-7 has been rightly
rejected. In regard to the relation between R-1 and Kalaignar TV.
Learned counsel submitted that the arguments advanced before this
court are contrary to the case in the Ld. Trial Court.
43. Learned counsel submitted that it is a settled case that the prosecution
must come with a definite case. Learned counsel submitted that no
evidence was lead in the Ld. Trial Court to prove the relationship
between R-1 and Kalaignar TV. Attention was invited to para 1709-
1710 of the impugned judgment. In respect to the relationship through
Green House Promoters. Ld. Counsel submitted that the Ld. Trial Court
has correctly appreciated the evidence in this regard in para 367-375. In
regard to the transaction of Rs. 200 Cr. Learned counsel submitted that
in order to make out a case under Section 7 PCA, it must be shown that
the public servant „accepted‟ or „obtained‟ illegal gratification, for
himself or for any other person. Reliance has been placed upon N.

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Vijayakumar v. State of Tamil Nadu5.
44. Learned counsel submitted that in the present case there is no proof of
demand for or by R-1 for illegal gratification of any amount from any
person. It was submitted that the prosecution has not lead any evidence
in this regard.
45. In regard to the fixation of the cut-off date, learned counsel submitted
that the case of the prosecution has no legs to stand. It has been
submitted that the Ld .Trial Court has rightly disbelieved the testimony
of PW-60. The attention has been invited to para387, 395, 425, 426,
431, 438 of impugned judgment. Learned counsel submitted that
Respondent no.1 has clearly explained the circumstances under which
the decision was taken and version is consistent with the file movement
register and has not been challenged in cross examination.
46. Learned counsel has also submitted that the CBI has failed to explain
how fixation of cut-off date of 01.010.2007 would be of benefit to
Unitech. Learned counsel submitted that there is not material on the
record that why A-1 or A-3 should favour the Unitech. Learned counsel
has placed reliance upon State vs. Sameer6.
47. In respect of the scope of jurisdiction to be exercised at the stage of
leave to appeal, learned counsel for the respondent submitted that the
order of acquittal cannot be reversed merely if a contrary view is
possible. However, the re-appreciation of evidence and coming to its

5
(2021) 3 SCC 687
6
2022 SCC OnLine Del 515

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own conclusion by the Appellate Court is not circumscribed by any
limitation. Reliance can be placed upon CBI v. Shyam Bihari & Ors.7.
48. Learned counsel for the respondent consistently stated that even at this
stage, the High Court is required to examine the matter at length and
cannot pass cryptic order. Reliance has been placed upon CBI v.
Shyam (supra). Learned counsel for the respondent further submitted
that in Jafarudheen & Ors. V. State of Kerala8, while relying upon the
Murugesan vs. State (Supra) Apex Court inter alia held that in cases
where the conclusion is not a possible view then only the High Court
can interfere and reverse the acquittal. In Murugesan vs. State (supra)
the distinction from that of “possible view” to “erroneous view” or
“wrong view” has duly been explained. Learned counsel also relied
upon Hakeem Khan v. State of M.P. 2025 (2017) 5 SCC 719, to
emphasise that the verdict of the trial court cannot be interdicted and
the High Court cannot supplant over the view of the trial court. Learned
counsel for the respondents has also relied upon the State of Odisha v.
Banabihari Mohapatra & Anr. 9 in which the judgment of Sadhu
Saran Singh V. State of U.P.10 was quoted wherein, it was inter alia
held that an appeal against acquittal has always been on an altogether
different pedestal from an appeal against conviction. It was further inter
alia held that the Appellate Court has interfered only when there is
perversity.

7
2023 8 SCC 197
8
2022 10 SCC 383
9
2021 15 SCC 268
10
(2016) 4 SCC 357

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49. Learned counsel for the respondent stated that reliance placed upon the
CBI over the Sujoy Mangesh Poyarekar (Supra) is misconceived.
Learned counsel for the respondent further submitted that the Apex
Court in this case inter alia held that in deciding the question of
whether requisite leave should or should not be granted, the High Court
must apply its mind, considering whether a prima facie case has been
made out or arguable points have been raised and not whether the order
of the acquittal would or would not be set aside.
50. Learned counsel for the respondent has submitted that in Sujoy
Mangesh Poyarekar (supra), the judgment of Sita Ram Vs. State of
U.P.11 was cited with the approval wherein it was held that though the
right of appeal is more or less a universal requirement of the guarantee
of life and liberty rooted in the concept that men are fallible, judges are
men and making assurance doubly sure, before irrevocable deprivation
of life or liberty comes to pass, a full-scale re-examination of the facts
and the law is made an integral part of fundamental fairness or
procedure. However, the legislature in its wisdom has made a
distinction in regard to the order of the acquittal and under Section 378
(3), it was inter alia laid down that appeal can be heard on the merits
only after the leave is granted in cases of acquittal.
51. Learned counsel for the respondent has submitted that in Sujoy
Mangesh Poyarekar (supra), the Apex Court inter alia held that the
appellate Court must consider the relevant material, sworn testimonies
of prosecution witnesses and record reasons why leave sought by the
State should not be granted and the order of acquittal recorded by the
11
(1979) 2 SCC 656

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trial Court should not be disturbed. Learned counsel for the respondent
has submitted that the leave can only be granted not only if the
arguable points have been raised but at the same time, the leave can be
granted only if the material on record discloses deeper scrutiny and re-
appreciation, review or reconsideration of evidence and only in such
cases, the appellate Court must grant leave as sought and decide the
appeal on merits.
52. Learned counsel for the respondents have laid great emphasis on the
point that even in Sujoy Mangesh Poyarekar (supra), case, the
reliance was placed upon Chandrappa & Ors. vs. State of Karnataka
(Supra), in which the general principles regarding the power of the
appellate Court in dealing with an appeal against an order of acquittal
were laid down.
53. Learned counsel for the respondents have cited numerous judgments of
the jurisdiction of the Court while entertaining an order of acquittal.
However, I consider that those judgments are not relevant at this stage
as this Court as of now is not hearing the appeal. Learned counsel for
the respondents have also cited numerous judgments where leave to
appeal was refused. However, the same are also distinguishable on the
facts and circumstances of the case.
54. Sh. Manu Sharma, learned counsel for the respondent No.1, has
submitted that the prosecution can succeed by substantially proving the
story it alleged. Learned counsel reiterated that the prosecution has
stood its own legs and it cannot take advantage of the weakness of the
defense. The reliance has been placed upon Bhagiragh Vs. State of

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M.P.12. Learned counsel submitted that there is no evidence of demand
of illegal gratification therefore, no inferential deduction of
culpability/guilt of a public servant under Section 7 and 13(1)(d) read
with Section 13 (2) of Prevention of Corruption Act, 1988 can be laid
down. Reliance has been placed upon Neeraj Dutta v. State
(Government of NCT of Delhi)13. Learned counsel has also submitted
that Section 20 of the Act deals with the legal presumption that can be
drawn only if it is proved during the trial the accused had accepted or
agreed to accept any gratification. The reliance has been placed upon
Neeraj Dutta (supra) so as to buttress his point that there is no evidence
as to the demand or acceptance of illegal gratification.
Submissions of Respondent No. 2/ Siddharth Behura
55. Mr. Siddharth Luthra, learned senior counsel for respondent
no.2/Siddharth Behura submitted that while dealing with an appeal
against acquittal under Section 378 Cr. P.C. the court has to bear in
mind that the acquittal of the accused further strengthens the
presumption of innocence.
56. Learned senior counsel has also submitted that the appellate court is
required to consider that whether the view taken by the trial court is a
possible view which could have been taken on the basis of the evidence
on record. Learned senior counsel submitted that if the advantage with
the learned trial court is that the testimony is recorded by him and
therefore the trial judge is in a better position to appreciate the
evidence. Reliance has been placed upon H.D. Sundara v. State of

12
(1976) 1 SCC 20
13
2023 4 SCC 731

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Karnataka14.
57. Learned senior counsel submitted that leave to appeal can be granted
only if there is any perversity in the order of the learned trial court or a
substantial error in the view taken by the trial court. Learned senior
counsel submitted that leave can also be granted if the acquittal was
illegal, unwarranted or contrary to law. Learned senior counsel
submitted that there is no material on the record to grant leave in the
present case.
58. Learned senior counsel submitted that respondent no.2 in his capacity
as the Secretary (Telecom), Government of India did no wrong, and all
allegations qua him are false, imaginary, and baseless. Learned
counsel submitted that the submissions made by the CBI are fallacious
and ill-founded.
59. Learned senior counsel submitted that the order of the acquittal can
only be set aside if the approach of the lower court is vitiated with the
manifest illegality or the decision is perverse and the trial court has
committed a manifest error of law and ignored material evidence on
record. Reliance has been placed upon State of Goa Vs. Sanjay
Thakran and Another 15 , Sawant Singh and other Vs. State of
Rajasthan16, "State of Rajasthan Vs. Sohanlal17.
60. Learned senior counsel submitted that the provision regarding leave to
appeal is in order to ensure that no frivolous appeals are filed and it is a
provision so as to ensure an equity. Learned senior counsel submitted

14
(2023) 9 SCC 581
15
(2007) 3 SCC 755
16
AIR 1961 SC 715
17
(2004) 5 SCC 573

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that leave to appeal can be granted only when there is an absolute
assurance of the guilt on the basis of evidence on record. It has been
further submitted that while deciding the issue regarding leave to
appeal the High court is required to pass a speaking order showing
application of mind. Reliance has been placed upon State of Rajasthan
vs. Chanda Alias Chandkori and others18, Goyal Enterprises vs. State
of Jharkhand19, State of Punjab vs. Bhag Singh20 and State of Orissa
vs. Dhaniram Luhar21.
61. Learned senior counsel submitted that the order of the learned trial
court does not call for any interference. In regard to the „prior
acquaintance‟, learned senior counsel invited the attention of the court
to para 366 of the judgment and submitted that the finding of the
learned trial court is just and proper in this regard. Learned senior
counsel also invited the attention of the court to pages 3 and 9 of the
testimony of PW 7 Aseerwatham Achary recorded on 19.12.2011 to
buttress his point. Learned senior further counsel submitted that there
is no documentary or oral evidence that Respondent No.2 ever knew
the alleged beneficiaries.
62. Learned senior counsel also invited the attention of the court to the
statement of respondent no.2 recorded under Section 313 Cr.P.C. where
he has categorically stated that he had not seen, met, known or heard of
Shahid Balwa, Vinod Goenka and Sanjay Chandra. Learned senior
counsel submitted that the testimony of PW7 has rightly been

18
(2007) 11 SCC 402
19
(2008) 13 SCC 570
20
(2004) 1 SCC 547
21
(2004) 5 SCC 568

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disbelieved by the learned trial court. The attention has been invited to
para 1742 of the impugned judgment in this regard.
63. Learned senior counsel submitted that respondent no.2 was appointed
Secretary in the MoCIT through a due administrative process and was
in full knowledge of the then Hon'ble PM with whom he had worked
for a duration longer than he worked with R-1. Learned senior counsel
submitted that respondent no.2 earlier also worked with Dr. Manmohan
Singh, from May 1992 to October 1994. Learned senior counsel
submitted that any appointment of Additional Secretary and above is
done by the „Appointment Committee of Cabinet‟ (ACC) which is
chaired by the Prime Minister and the Cabinet Secretary as Secretary to
the Cabinet recommends the names and same is approved by the Prime
Minister. The career profile and reason for the appointment of
respondent no.2 have been proved by DW5/Mr. S. Basu, Under
Secretary, DOPT, North Block and DW6/Mr. Lalit Sharma, Under
Secretary, Department of Industrial Policy & Promotion (DIPP), Govt.
of India.
64. Learned senior counsel submitted that respondent no.2 was appointed
as Secretary MoCIT on 31.12.2007 and prior to this even he was not
aware of his order of appointment nor his concurrence was sought for
appointment as Secretary (T). Learned senior counsel submitted that it
was the conscious decision of the then Prime Minister to appoint
respondent no.2 as Secretary (T) and any theory of previous familiarity
of conspiracy is liable to be rejected out rightly. Learned senior counsel
also referred to question no.1718 of the statement under Section 313
Cr.P.C. in this regard.

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65. In regard to the change in the first come-first serve Policy, the learned
senior counsel submitted that the learned trial court has rightly
disbelieved PW-60 A. K. Srivastava in this regard. Learned senior
counsel submitted that in fact Mr. A. K. Srivastava has improved upon
his earlier statement under Section 161 Cr.P.C. dated 06.12.2010 after
the arrest of respondent no.2. It has been further submitted that the
alleged meeting on 07.01.2008 as stated by PW60 has rightly been
contradicted by PW77 K. Sridhara, Member (T) in his evidence
recorded on 10.12.2012.
66. Learned senior counsel submitted that note of PW60 Ex.PW60/L did
not mention about any such meeting or any such oral direction given to
him in any meeting wherein he was directed to put up a note
accordingly. Learned senior counsel referred to the Manual of Office
Procedure and Conduct Rules to which PW60 was bound. Learned
senior counsel invited the attention of the court to the testimony of PW-
60/A. K. Srivastava recorded on 12.09.2012 and 14.09.2012.
67. Learned senior counsel submitted that in fact, the story of the alleged
meeting dated 07.01.2008 was concocted after the arrest of respondent
no.2 as the prosecution did not have any material at all against
respondent no.2. Learned senior counsel submitted that the purpose of
getting such an improvement from PW-60 AK Srivastava by CBI was
to show that prior to D-7 being put up to Respondent No.2 on
07.01.2008, he became aware that no decision on changed FCFS had
been taken in DoT but FCFS as contained in letter of 26.12.2007
written by MoCIT to PM was to be treated as policy directive on
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respondent no.2 had gone by the note, Ex.PW60L/23 as approved by
M(T), wherein it is recorded that the said policy had been decided in
DoT and a letter written to the PM on 26.12.2007 which were well
before Respondent No.2 joined the Department. Learned senior counsel
submitted that in this regard question no.1150 was put which was
denied by R-2.
68. Learned senior counsel submitted that the Minister is entitled to make
any policy decision and a bureaucrat is duty bound to implement the
same. Learned senior counsel submitted that DoT's policy of FCFS was
approved by respondent no.1, MoCIT, prior to joining of Respondent
No.2, as reflected clearly by PW-60 in his Note dated 07.01.2008.
Learned senior counsel in regard to the „Press release‟ invited the
attention of the court to para 911 to 914 of the impugned judgment and
submitted that the learned trial court has rightly rejected this theory.
Learned senior counsel further submitted that in fact respondent no.2
withdrew the file D-7 on 07.01.2008 after M(T) had seen it and before
it was sent to MoCIT because, in the intervening period, it occurred to
Respondent No.2 that there could be an administrative problem in
determining the inter se seniority of applicants if more than one
applicant complied with LOI conditions on the same date.
69. Learned senior counsel submitted that with this bona fide belief,
respondent no.2 put a condition that if more than one applicant
complied with LOI conditions on the same day, the inter-se seniority
would be determined by the date of application. Learned senior counsel
submitted that the learned trial court in para 911 of the impugned
judgment has rightly held that if this condition was deleted by

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respondent no.1 then respondent no.2 cannot be stated to be in
conspiracy with R-1. In respect of setting up four counters for the
distribution of LOIs, learned senior counsel submitted that respondent
no.2 had no role in the distribution of LOIs through the four counters
scheme. Learned senior counsel invited the attention of the court to
para 918, 928 & 957 of the impugned judgment and submitted that
everything was done in this regard by PW60 A. K. Srivastava and to
avoid responsibility, he introduced the role of respondent no.3 by way
of oral statements, contrary to the official record. The attention was
also invited to para 1771 to 1776 of the impugned judgment. The
attention was also invited to the testimony of PW77 K. Sridhara
recorded on 11.12.2012.
70. Learned senior counsel submitted that as per documentary evidence
Respondent No.2 had signed Note Ex PW-52/A only after the same
was signed by PW-77 and therefore Respondent No.2 did not see the
Note on 10.01.2008. In this regard, the testimony of PW62/A.S. Verma
recorded on 19.09.2012 and testimony of PW123/M.N. Manickam
recorded on 14.05.2013 and the testimony of PW110/Nitin Jain
recorded on 21.03.2013 was relied upon.
71. Learned senior counsel submitted that the process of setting up of four
counters was initiated by a note on page 30/N recorded by PW88 R.K.
Gupta and it came to R-2 only for information. Learned senior counsel
also invited the attention of the court to question no. 1167 and 1174 of
the statement of respondent no.2 recorded under Section 313 Cr.P.C.
Learned senior counsel submitted that the order of the learned trial
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In respect of the "Cut-Off date" & "Non-Revision of entry fee" Learned
senior counsel submitted that these issues pertain to the period before
R-2 even joined the telecom department.
72. Learned senior counsel submitted that the issue of the Cut-Off date was
decided on 25.09.2007 and it never came up before R-2 after
01.01.2008. In respect of the money trail also, the learned senior
counsel submitted that this allegation came up for the first time in the
Supplementary Chargesheet dated 25.04.2011. Learned senior counsel
submitted that the trial court in para 1816 to 1819 has rightly rejected
the case of the prosecution in this regard. Learned senior counsel
submitted that the rigors of Section 10 of the Evidence Act will not be
applicable or attracted in the present case. Reliance has been placed
upon Kher Singh vs. State22.
73. Learned senior counsel submitted that R-2 was not a conspirator and he
was not aware that spectrum was inadequate even for applicants up to
25.09.2007 and also that spectrum was available only for one licensee
in the Delhi service area. Learned senior counsel submitted that the file
regarding the availability of spectrum was never put up before him. In
this regard, the reference was made to the testimony of PW60 recorded
on 12.09.2012. Learned senior counsel submitted that therefore R-2
could not have been a part of any conspiracy in this regard. It has been
further submitted that the finding of the learned trial court is
categorical, absolute and beyond any iota of doubt and the impugned
order is well-reasoned on the correct appreciation of facts, law and
available evidence on record. Learned senior counsel submitted that
22
1988 SCC 3 609

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therefore leave may not be granted. Learned senior counsel invited the
attention of the court to the entire career graph of the R-2 to show that
he had always been an upright officer and had discharged several
important responsibilities in his career without any stigma.
74. Learned senior counsel submitted that in the Code of Criminal
Procedure, 1861 in Section 407 there was no provision for appeal in
case of acquittal. However, in 1872, Section 272 was introduced appeal
against acquittal was introduced with the discretion of the local
government. Learned senior counsel submitted that in 1882, the same
provision was followed. Learned senior counsel submitted that
however in 1898, the Code was amended and it was provided in
addition to the discretion of the State Government to file an appeal
against acquittal, Complainant was also given the right to file an appeal
against acquittal to the High court upon grant of special leave to appeal.
In this regard the reference was made to Empress of India vs.
Gayadin23, Emperor v. Ram Adhin Singh24; Sheo Swarup v. King-
Emperor25; Surajpal Singh v. State26. Learned senior counsel invited
the attention of the court to the 41st Law Commission report and Joint
Committee Report 27 dated 04.11.1972.
75. Learned senior counsel submitted that finally in 1973, Section 378
subsection 3 was introduced making it mandatory to obtain leave to file
an appeal against acquittal. Learned senior counsel invited the attention
of the court to the rules of Delhi High Court Rules including Rule 1(1),
23
1881 SCC OnLine All 12
24
1931 SCC OnLine All 44
25
1934 SCC OnLine PC 42
26
1951 SCC 1207
27
GIPE-146179

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Part E, Chapter 25 DHC Rules, Rules 1(2) Part E, Chapter 25 DHC
Rules, Rule 1(3), Part E, Chapter 25 and Rule 1(4), Part E, Chapter 25
DHC Rules.
76. Learned senior counsel also invited the attention of the court to the CBI
Manual, 2005. Learned senior counsel submitted that in para 23.7 of
the Manual, it was provided that while filing an appeal the department
must take into account the view of the learned trial court regarding the
credibility of the witness besides the other facts. Para 23.8 of the
manual also provides that only in a case of real & substantial injustice,
the appeal may be preferred. Learned senior counsel submitted that
CBI manual is binding as held in Vineet Narain vs. Union of India28 &
CBI vs. Ashok Kumar Aggarwal29.
77. Learned senior counsel submitted that the order of acquittal can be set
aside only if the same is illegal, perverse & without jurisdiction.
Reference has been made to CBI vs. Shyam Bihari30, Central Bureau
of Investigation vs. Darshan Pal Singh 31 & State of Odisha vs.
Debasis Dixit 32 . Learned senior counsel further submitted that the
presumption of innocence is strengthened upon acquittal by the Trial
Court, hence the High Court ought not to interfere in the same.
Reliance has been placed upon Surajpal Singh vs. State33; Aher Raja
Khima vs. State of Saurashtra34& Ghurey Lal vs. State of U.P.35.

28
(1998) 1 SCC 226
29
(2014) 14 SCC 295
30
(2023) 8 SCC 197
31
2012 SCC OnLine P&H 19590
32
CRLLP No. 26 of 2016; Judgment dated. 13.01.2023
33
1951 SCC 1207
34
1955 SCC OnLine SC 17
35
(2008) 10 SCC 450

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78. Learned senior counsel submitted that the High Court is only required
to examine that the view taken by the trial court is a possible view
which could have been taken on the basis of the evidence on record &
if the view is possible, the HC should not overturn the acquittal on the
ground of other possible views. Learned senior counsel submitted that
the high court is required to interfere only if it comes to a finding that
the only conclusion on the basis of evidence on record was, the guilt of
the accused beyond a reasonable doubt. Reliance has been placed upon
H.D. Sundara vs. State of Karnataka36, Chandrappa & Ors. vs. State
of Karnataka37, Babu vs. State of Kerala38.
79. Learned senior counsel submitted that this court is required to pass a
speaking order while deciding the question of leave to appeal. Learned
senior counsel submitted that the present appeal is an abuse of arbitrary
power and has invited the attention to the impugned judgment
indicating selective use of official notes, defective investigation and
evasive approach on part of CBI.
80. Learned senior counsel submitted that the learned trial court has
appreciated the evidence of all the material evidence on record.
Learned senior counsel submitted that in the Aid Memoire filed by the
CBI, there is no material against respondent no.2.
81. Sh. Siddharth Luthra, learned senior counsel for respondent No.2 has
submitted that initially in the Code of Criminal Procedure, 1872, there
was no provision for appeal in case of acquittal except on behalf of the
government by the public prosecutor or other officers specially and
36
(2023) 9 SCC 581
37
(2007) 4 SCC 415
38
(2010) 9 SCC

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generally appointed this behalf. Learned senior counsel has submitted
that the provision was altered only to the effect that an appeal against
acquittal shall be filed only in respect of certain carefully selected
cases. Learned senior counsel has cited the judgment of Empress of
India v. Gayadin39, wherein it was held that the power given to the
Central Government by Section 72 of the Cr. PC are of an exceptional
and unusual character and should be most sparingly enforced in respect
of pure decisions of facts. Learned senior counsel has submitted that
the appeal against the acquittal was allowed only in cases where,
through the incompetence, stupidity or perversity of a subordinate
tribunal, such unreasonable or distorted conclusions have been drawn
from the evidence as to produce a positive miscarriage of justice.
Learned senior counsel has submitted that therefore if we look back
into the legislative history appeal against the acquittal is permissible
only in exceptional cases.
82. Learned senior counsel has invited the attention of the Court to
„Section 417‟ of the Criminal Code of Procedure, 1882 wherein the
Local Government was empowered to direct the public prosecutor to
present an appeal in the High Court against an order of acquittal.
Learned senior counsel has submitted that in the Parliamentary debate
held on 02.03.1882, a motion was moved for omission of Section 417.
However, the motion was defeated as it was assured that the power
conferred by the law on the government had not been abused. Learned
senior counsel for the respondent No.2 cited the judgment in Queen-

39
1881 SCC OnLine Allahabad 12

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Empres v. Prag Dat40, wherein the Court inter alia held that in appeal
either against acquittal or conviction, the appellant has to satisfy the
Court that there does exist some good and strong ground apparent upon
the record for interfering with the deliberate determination by a judge.
83. Learned senior counsel referred to the abstract of the proceedings on
the council of Governor General of India, Laws and Regulations, 1882,
wherein it was mentioned by Hon‟ble Maharaj Jyotender Mohan
Tagore that this provision was initially not in the Indian Court. It was
pointed out that the trial court had the best means of coming to the right
decisions as to whether an accused person was guilty or not. It was
argued that a person who was pronounced innocent, it would not be just
to allow an appeal against such acquittal. It was argued that this power
would employ a want of sufficient confidence in the magistracy which
could not be conducive to the administration of justice in the criminal
courts of this country.
84. Learned senior counsel has cited Emperor vs. Ramadhin Singh 41 ,
wherein it was inter alia held that an appeal from an acquittal is an
extraordinary remedy and the right to appeal received a statutory
recognition for the first time in the year 1872. Learned senior counsel
has submitted that in this case there was a change in the judicial
outlook as it was inter alia held that the rules and limitations affecting
appeal from acquittal are on a par with those relating to appeals from
convictions. Learned senior counsel has submitted that Empress of
India v. Gayadin (surpa) was also diluted. However, learned senior

40
1889 SCC OnLine Allahabad 12
41
1931 SCC OnLine Allahabad 44

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counsel submitted that the Court in Surajpal Singh V. State42 for the
first time inter alia held that the presumption of innocence is
strengthened as the trial court had the he advantage of seeing the
witnesses and hearing their evidence. Learned senior counsel submitted
that in Aher Raja Khima v. State of Saurashtra43, the court explained
the doctrine of “compelling reasons”.
85. Learned senior counsel has submitted that Section 378 (3) Cr. PC as it
stands today was recommended by the Joint Committee in its Report
dated 11.04.1972 as the committee was given to understand that in
some cases, this executive power to file the appeal against an order of
acquittal was exercised arbitrarily and therefore in order to check
against the arbitrary action in this regard, the committee provided
appeal to be entertained only if the High Court grants leave.
86. Learned senior counsel for the respondent No.2 has relied upon the
judgment of Emperor V. Ram Adhin Singh (Supra), wherein it was
inter alia held as under:
18. “In an appeal from an order of acquittal it ought to be
remembered that there is always a presumption in favour of the
innocence of the accused. This presumption very materially affects
the question of onus, which except within a limited range of cases
lies upon the Crown, and where the finding of the subordinate
tribunal is in favour of the accused, the burden lies upon the
prosecution to prove that the finding, reached by the Court below,
was not justified by the evidence. Where the evidence against the
accused is too scanty or insufficient to support the charge, the
finding of the Court below cannot be displaced. Again, where the
case is somewhere on the border line or very near it and it was
possible for the Court, upon a balance of probabilities, to hold a

42
1951 SCC 1207
43
1955 SCC OnLine SC 17

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person guilty or not guilty, the reversal of the order of acquittal is
not only undesirable and. inexpedient but is calculated to cause a
miscarriage of justice. Where however the balance of evidence is
distinctly against the accused or where material evidence has
been misappreciated, overlooked or ignored, this Court is bound
to step in as much in the interest of the administration of justice as
of the public generally. Certain principles, therefore have been
laid' down by this Court indicating the course which should be
followed for the adjudication of the Government appeals. In
Empress v. Gayadin [1882] 4 All. 148 Straight, J., is reported to
have observed:
“It is not because a Judge or a Magistrate has taken a view
of a case in which Government does not coincide, and has
acquitted accused persons, that an appeal from his decision
must necessarily prevail, or that this Court should be called
upon to disturb the ordinary course of justice, by putting in
force the arbitrary powers conferred on it by Section 272.
The doing so should be limited to those instances in which
the lower Court has so obstinately blundered and gone
wrong as to produce a result mischievous at once to the
administration of justice and the interests of the public.”

87. Reliance was also placed upon Surajpal Singh V. State (Supra), in this
case, an additional test was laid down that the order of acquittal can
only be reversed only for very substantial and compelling reasons.
Learned senior counsel submitted that the Court while passing an order
in the question of leave to appeal is required to pass a speaking order
indicating reasons in such case. The reliance has also been placed upon
State of Himachal Pradesh v. Manoj Kumar alias Chhotu44. Learned
senior counsel further relied upon State of Madya Pradesh v. Giriraj
Dubey 45 to emphasize that the High Court is required to oblige to
assign reasons. Learned senior counsel has submitted that in State of
44
(2008) 13 SCC 654
45
(2013) 15 SCC 257

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Madhya Pradesh v. Giriraj Dubey (supra) with judgment Sujoy
Mangesh Poyarekar (Supra) was discussed in detail and it was inter
alia held that the material on the record must disclose the necessity of
deeper scrutiny and re-appreciation, review or reconsideration of
evidence for grant of leave to appeal.
88. Learned senior counsel submitted that besides these, there has to be
strong and compelling reasons. However, there can be a slight
difference in detailing such reasons, in cases where the leave to appeal
is granted or leave to appeal is refused. In cases where the leave to
appeal is refused, in fact, all the windows are closed. Therefore, the
court at this stage cannot pass cryptic and unreasoned orders. Learned
senior counsel relied upon the State of Punjab v. Bhag Singh 46 ,
wherein the High Court refused to grant leave without giving any
reasons at all. In this case, the Apex Court inter alia held that the High
Court ought to have set forth its reasons, howsoever brief, in its order
indicative of an application of its mind.
89. Learned senior counsel has also relied upon CBI v. Shyam Bihari &
Ors. (supra). Learned senior counsel relied upon CBI v. Darshan Pal
Singh47, wherein it was held that the impugned judgment of acquittal
contains cogent and valid reasons, and cannot be set aside. It was
further inter alia held that such an order of acquittal can be set aside
only if the same is illegal, perverse and without jurisdiction. Learned
senior counsel has submitted that while filing an appeal against an
order of acquittal, the government should exercise this jurisdiction with

46
2004 1 SCC 547
47
2012 SCC OnLine P & H 19590

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circumspection, only in cases of public importance or where there has
been a miscarriage of justice or in a case of a very grave nature.
Reliance has been placed upon the State of Odisha (vigilance) v.
Debasis Dixit48.
90. Learned senior counsel further relied upon State v. Laxman49 wherein
it was held that if two views are plausible, the appellate court should
not reverse a judgment of acquittal by the trial court, merely because
another view is possible. Learned senior counsel further submitted that
it is also a settled proposition that if there is a possibility of another
view being reasonably plausible, then the view which favours the
accused should be adopted unless the High Court returns a definite
conclusion that the findings recorded by the trial court are perverse and
against the weight of the evidence on record.
91. Learned counsel further relied upon State v. Anil Bhardwaj 50 and
State V. Vicky51 to substantiate his points that the order of acquittal can
be set aside only when there are strong and compelling reasons.
Learned senior counsel has submitted that in the present case, the
learned Trial Court has rightly given credence to the defence witnesses
and placed reliance upon Dudh Nath Pandey v. State of Uttar Pradesh
(supra).
92. Learned senior counsel has submitted that in State (Govt. of NCT of
Delhi) v. Jitender Kumar and Anr.52. Leave to appeal was rejected by
the Division Bench of this Court. The Division Bench also placed

48
CRLLP No.26 of 2015 decided on 13.01.2023
49
2019 SCC OnLine Del 11973
50
2013 SCC OnLine Del 3251
51
2019 SCC OnLine Del 10331
52
CRL.L.P 364/2017 decided on 06.07.2017

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reliance upon State v. Wasim & Anr.53 and inter alia held that the story
of the prosecution is totally unreliable. Learned counsel submitted that
in the present case also, the prosecution witnesses were totally
unreliable and there is no ground to interfere in the well-reasoned
judgment of the learned trial Court.
93. Learned senior counsel also referred to the CBI Manual 23.3 of
Chapter 23 of the CBI Manual and submitted that in Vineet Narain v.
UOI54, it was inter alia held that the CBI manual based on statutory
provisions of the Cr.P.C. provides essential guidelines for the function
and the CBI should adhere scrupulously to the provisions of the manual
in relation to its investigating functions like raids, seizures and arrests.
Learned senior counsel submitted that this view is reiterated by the
Supreme Court in the CBI v. Ashok Kumar Aggarwal55.
Submissions of Respondent No. 3/ R.K. Chandolia
94. Mr. Vijay Aggarwal, learned counsel for respondent no.3 has submitted
that the learned trial court has passed the well-reasoned order after
correct appreciation of the evidence. Learned counsel has submitted
that in the present case day-to-day trial spanning over a period of 7
years was conducted. Learned counsel has read in detail the relevant
para 344 to 366, para 367-376, Para 1284-1286, Para 377-546, Para
915-961, Para 1529-1543, Para 1634-1643 from the impugned
judgment.
95. Learned counsel has submitted that respondent no.3 had also filed
detailed written submissions at the time of final arguments covering all
53
(2017) SCC OnLine Del 8502
54
1998 1 SCC 226
55
(2014) 14 SCC 295

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the above circumstances raised by the CBI. Learned counsel has placed
on record detailed arguments comparing the submissions made by the
CBI seeking leave to appeal and the evidence on record to show that
the learned trial court had correctly appreciated the evidence on record
and as such the judgment under challenge suffers from no infirmity or
perversity. Learned counsel referred in detail to the relevant paras of
the judgment and the final written submissions filed by him before the
learned trial court.
96. Learned counsel also submitted that all incriminating circumstances
were not put to the accused persons/ Respondent and the defence taken
by the Respondent was not rebutted by the prosecution, which was
obligatory on the part of the prosecution. Reliance has been upon
Parminder Kaur v. State of Punjab56, Jai Prakash Tiwari v. State of
Madhya Pradesh 57 , Reena Hazarika v. State of Assam 58 . Learned
counsel submitted that if an accused takes a defence after the
prosecution evidence is closed, the Court is duty bound under Section
313(4) to consider the same. Learned counsel submitted that he has
already filed a detailed reply dated 28.02.2019 to the subject appeal
raising several grounds on which the present leave to appeal deserves
to be dismissed. Learned counsel submitted that the Impugned
judgement has been passed after conducting day to day trial and the
impugned judgment suffers from no infirmity.
97. Learned counsel submitted that the main accused came to the witness
box and CBI did not put its entire case to them. It was further submitted
56
(2020) 8 SCC 811
57
(2022) SCC OnLine SC 966
58
(2019) 13 SCC 289

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that there was an enormous delay in the recording of statement U/s 161
CrPC. It was further stated CBI has erroneously urged that the learned
Trial Court erred in dealing with alleged incriminating evidence
independently of one another and not as a whole. Learned counsel
submitted that there are certain other relevant and material findings
which have been concealed by the CBI on the basis of which the
present leave to appeal is liable to be dismissed. Learned counsel also
invited the attention of the court to the lacuna in the prosecution case.
Learned counsel further submitted that the respondent examined
himself as DW22 and the prosecution did not rebut his statement.
98. Learned counsel also made detailed arguments on the concept of
„perverse‟. In respect of the law on the scope of leave to appeal under
Section 378(3) CPC, learned counsel submitted that at this stage the
court is not only required to see whether any prima facie arguable
points have been raised, the court is also required to see that there is a
presumption of innocence which is further enforced by the order of
acquittal. Learned counsel submitted that the High Court can interfere
only when the impugned judgment is found palpably perverse.
Learned counsel submitted that this court cannot substitute its own
view with the view taken by the trial court and the high court cannot
interfere with the judgment, if two views are possible and the trial court
appears to have taken one view. Learned counsel submitted that the
High Court is required to see that there are compelling and substantial
reasons. Learned counsel submitted that the high court even at this
stage is required to sift and weigh the evidence to find out that whether
any case of leave to appeal is made out. Reference has been made to

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Chandrappa & Ors. vs. State of Karnataka (Supra), State vs. Durga
Prasad & Ors Govt59, State of Rajasthan vs. Babu Meena60, State vs.
Ram Singh61 & State vs. Lalit Ratawal62.
99. Mr. Vijay Aggarwal, learned counsel has argued in detail about the law
on the scope of leave to appeal and submitted that the same arguments
can be adopted for R-4, R-5, R-13 and R-14. Learned counsel
submitted that in the case of acquittal, there is a clear departure from
the basic rule that there is an undeniable right of appeal against the
final order of the court. Reliance has been placed upon Sita Ram & Ors
vs. the state of Uttar Pradesh 63 , Ramesh & Ors. vs. State of
Haryana64. Learned counsel submitted that an appeal against acquittal
is to be considered on a higher pedestal as compared to any other
appeal provided for in the Code.
100. Learned counsel submitted that leave can only be granted for sufficient
and good reasons where there is a grave miscarriage of justice.
Reliance has been placed upon State vs. Sameer @ Allaudin 65 .
Learned counsel has also referred to the CBI Manual, 2005 and 2020
which contains specific rules pertaining to the preparation of a report
by the prosecutor in charge of a case immediately after a judgment of
acquittal or discharge is passed by the trial court. Learned counsel also
referred to Chapter 25 of the Delhi High Court Rules. Learned counsel
cited the instances where leave to appeal against the order of acquittal

59
Appeal No. 2450 of 1986
60
2013 4 SCC 206
61
Crl. LP No. 111/2011
62
LP No. 61/2015
63
Crl. Appeal no.246 of 1978
64
(2017) 1 SC 529
65
Crl LP No. 55/2021

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has been rejected by the high court and placed reliance upon State vs.
Ram Singh66, State vs. Lalit Ratawal67, State vs. Amjad Khan & Ors68,
State (Govt. of Delhi) vs. Rajbir Singh & ors. 69 , State vs. Sanjay
Kashyap @ Omi & Ors. 70 , State vs. Lakhan 71 , State vs. Maqbool
Khan72.
101. Learned counsel submitted that the Punjab and Haryana High Court in
Umardeen vs. state of Haryana and Ors.73 inter alia observed that the
high court should examine the testimonies of witnesses examined by
the prosecution. The reliance was also placed on State of Punjab vs.
Kashmir Singh74, State vs. Durga Prasad and Ors.75.
102. Learned counsel submitted that it was held that the High Court can
interfere only in cases where judgement is palpably perverse, and is
based on a complete misreading of evidence. Reliance has also been
placed upon State of Chhattisgarh vs. Nankiram Dewangan & Ors.76
to buttress the point that the high court should interfere only when there
are compelling and substantial reasons. Learned counsel also cited the
State of Rajasthan vs. Ram Niwas 77 , State of Rajasthan Vs Babu
Meena 78 , and Chandigarh Administration vs. Dharam Singh 79
wherein the order rejecting leave to appeal by the high court was
66
Crl. L.P.No.111/2011
67
Crl. L.P.No.61/2015
68
Crl.LP 577/2019
69
2002 Crl.LJ 3882
70
Crl.LP 861/2018
71
Crl.LP 361/2012
72
2019 (1) JCC 830
73
MNU/PH/0122/2019
74
2008 SCC Online P&H 1320
75
Appeal 2450 of 1986
76
2008 Crl. LJ 2488
77
2002(2) SC 457
78
Crl. Appeal 570 of 2007
79
1985 Crl. LJ 1859

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upheld by the Apex court.
103. Learned counsel submitted that thus the principles which can be culled
out are that the High Court must be mindful of the fact that in case of
acquittal, the presumption of innocence is further fortified and if two
views are possible, the High court cannot substitute it with its own
view. Learned counsel submitted that the learned trial court has several
advantages over the appellate court as it had the opportunity to see the
demeanor of the witness.
104. Learned counsel submitted that for grant of leave to appeal, not only
arguable points are required but there must be compelling and
substantial reasons. Learned counsel submitted that prosecution is also
required to show the perversity in the order of the learned trial court.
Learned counsel also submitted that principles which are applicable
while hearing appeal are also applicable at this stage as observed by the
Division Bench of this court in State vs. Sameer @ Allaudin (supra)
and principles laid down by the Supreme Court in its landmark
judgment Chandrappa & Ors. vs. State of Karnataka (supra).
105. Learned counsel submitted that a close scrutiny and in-detail
examination of the deposition of the prosecution and defence witnesses
are to be done and the court is also required to sift and weigh through
the evidence in its entirety in order to arrive at an independent finding
and to examine the impugned judgment rendered by the trial court to
see that whether there is any perversity.
106. Mr. Vijay Aggarwal, Learned counsel for respondent no.3 has placed
reliance upon Ramesh & Ors. vs. State of Haryana (supra) wherein it
was inter alia held that the scope of interference in appeal against

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acquittal is narrower than the scope of appeal against conviction. It
was further inter alia held that the judgment of acquittal of the trial
court is attached with a definitive value. Such an order also fortifies
the presumption of innocence in favour of the accused. Learned
counsel submitted that the high court in the appellate jurisdiction is not
supposed to substitute its findings in case the findings recorded by the
trial court are equally plausible.
107. Learned counsel has further placed reliance upon State vs. Ram Singh
(supra) wherein the court at the stage of leave to appeal examined the
prosecution witnesses and held that the jurisdiction of the high court
while considering a petition for leave to appeal is not empowered to
exercise appellate review. It was further inter alia held that there has to
be substantial and compelling reasons as laid in down in Chandrappa
& Others vs. State of Karnataka (supra) for granting leave to appeal.
Learned counsel has further relied upon the judgment of this court in
State vs. Lalit Ratawal (supra) wherein while dealing with an appeal to
leave the court examined all the prosecution witnesses and inter alia
held that the leave to appeal can be granted only if it is shown that the
conclusion arrived at by the trial court are perverse or there is
misapplication of law or any legal principle. In this case also the
reliance was placed upon Chandrappa & Others vs. State of
Karnataka (supra) and leave to appeal was granted Learned counsel
has further relied upon State vs. Sameer @ Allauddin80 wherein while
granting leave to appeal reliance was placed reliance upon Babu vs.
State of Kerala (supra), Chandrappa & Others (supra), Anawar Ali vs.
80
Crl.L.P.55/2021

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State of Himachal Pradesh81 and dismissed the leave as there was no
infirmity much less any perversity in the conclusions. Learned counsel
has relied upon State of Amjad Khan and Ors. (supra) wherein while
dealing with the leave to appeal, the court after appreciating the
evidence inter alia held that the leave to appeal can be granted only
where it is shown that the conclusion arrived by the trial court is
perverse or there is a misapplication of law or any legal principle or
that another view is more conceivable. Reliance has been placed upon
Ghurey Lal vs. State of U.P. (supra). Learned counsel has also placed
reliance upon the judgment of this court in State vs. Sanjay Kashyap &
Omi & Ors. (Supra) wherein after relying upon Ghurey Lal vs. State of
U.P. (supra) the court found that there was no illegality or perversity in
the judgment.
108. Learned counsel has further relied upon the judgment of the Division
bench of this court in State (Govt. of NCT of Delhi) vs. Maqbool
Khan82 in which after assessing the entire material on record to satisfy
the conscious of the court and after relying upon the catena of
judgments dismissed the leave to appeal. Learned counsel submitted
that even the SLP filed against this was dismissed by the Apex court
vide order dated 02.03.2020 in SLP (Crl) 1958/2020. Learned counsel
further relied upon State of Rajasthan vs. Ram Niwas (supra), wherein
leave to appeal was denied by the High Court. The apex court after
taking into account inter alia held that there has to be clear evidence of
the guilt of the accused and that in the absence of that if it is not

81
(2020) 10 SCC 166
82
2019 (1) JCC 830 (Delhi)

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possible to record a finding of his guilt, the order of acquittal cannot be
reversed. Similarly, in State of Rajasthan vs. Babu Meena (supra), the
supreme court declined to entertain a SLP against the order denying
leave.
109. Learned counsel has also placed reliance upon Chandrappa & Ors. vs.
State of Karnataka(supra), CBI vs. Shyam Bihar & Ors.(supra), State
vs. Sameer Ali & Ors. (Supra), State vs Akash (Supra) and Arulvelu &
Anr. vs. State 83 . Learned counsel has further placed reliance upon
Darshan Singh vs. State of Punjab84 in which the Apex court vide its
order dated 04.01.2024 has inter alia held that if the PWs had failed to
mention in their statement under Section 161 Cr.P.C. about the
involvement of an accused, their subsequent statement before the court
during trial regarding involvement of that particular accused cannot be
relied upon. Learned counsel submitted that in the present case, many
witnesses have made improvement. On the improvement of the
statement by the witnesses, learned counsel has also relied upon
Shakun Grover vs. CBI85.
110. Mr.Vijay Aggarwal, learned counsel appearing for respondent no.4
besides adopting the judgments referred by him on behalf of
respondent no.3 has also relied upon Darshan Singh (supra)
Submissions of Respondent No. 4/ Shahid Usman Balwa
111. Sh. Vijay Aggarwal, learned counsel on behalf of the respondent
4/Shahid Blawa has submitted that learned Special Judge has correctly
appreciated the evidence on the record and passed a reasoned
83
(2009) 10 SCC 206
84
Crl. Appeal No.163/2010
85
2014 (7) AD (Delhi) 513

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judgment. Learned counsel has invited the attention of the Court to the
relevant extract from the judgment to emphasize that the learned Trial
Court arrived at the correct finding based on complete appreciation of
evidence on the record i.e. paras 344 to 546, paras 915-961, paras
1284-1286, paras 1529-1543 and paras 1634-1643.
112. Learned counsel read out all the relevant paragraphs of the judgment to
emphasize his point. Learned counsel submits that the respondent had
filed detailed written submissions at the time of final arguments
covering all the circumstances raised by the CBI in this court to show
that those are arguable points for grant of leave to appeal. Learned
counsel also invited the attention of the Court to written submissions of
the final arguments submitted by the respondent before the learned
Trial Court regarding all the five circumstances raised by the CBI.
Learned counsel also extensively relied upon the written submissions
filed during the course of the arguments.
113. Learned counsel submits that from the statement under Section 313
CrPC including the submissions under Section 313 (5) CrPC; it is clear
that all incriminating evidence and circumstances were not put to the
accused persons/respondent and the defense taken by the respondent
was not rebutted by the prosecution. Learned counsel submits that the
prosecution is under an obligation to negate the defense taken by the
accused in their submissions under Section 313 CrPC including their
submissions under Section 313(5) Cr, PC. Reliance has been placed
Parminder Kaur v. State of Punjab86, Jai Prakash Tiwari v. State of

86
(2020) 8 SCC 811

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Madhya Pradesh87, Reena Hazarika v. State of Assam88.
114. Learned counsel submits that they have already filed the detailed reply
dated 24.01.2019 in which it has inter alia been stated that the
impugned judgment has been passed after conducting day to day trial
and it suffers from no infirmity. It has further been submitted that the
main accused persons entered the witness box and the CBI did not put
its entire case to them. It has further been submitted that there is
enormous delay in recording of the statement under Section 161 CrPC.
Learned counsel submits that the CBI has erroneously averred that the
learned Trial Court erred in dealing with alleged incriminating
evidence independently of one another and not as whole. Learned
counsel submits that the alleged acts/omission attributed to the
respondent No.1 are anti-thesis of the conspiracy. It has further been
submitted that the evidence of the DoT officials runs contrary to the
documentary evidence. Learned counsel further submits that the CBI in
his opening remarks on leave to appeal has read selective paras from
the judgments and failed to bring to the notice of this Court the aspects
which dealt with how the CBI conducted the prosecution before the
learned Trial Court.
115. Learned counsel has invited the attention to the paras 1680, 1683,
1710, 1739, 1747, 1749, 1812 so as to show the lacuna in the case of
the CBI. Learned counsel submits that there is glaring vagueness in the
case of the prosecution as revealed during the cross examination of
respondent No.1 by the prosecution. It has been submitted that the

87
(2022) SCC OnLine SC 966
88
(2019) 13 SCC 289

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alleged transactions cannot be proved merely by production of bank
statements and witnesses from bank; rather independent evidence
regarding the actual transaction and the purpose behind the same is
required to be proved. It has further been submitted that the
investigation was conducted in a shoddy manner wherein the CBI
violated its own manual. The investigation was conducted in a
prejudicial and predetermined manner with total incompetence. It has
further been submitted that despite the similar serious allegations being
levelled against the Tata Group, there was intentionally no
investigation was conducted against the Tata Group. It has further been
submitted that the CBI did not put forward the vital aspects
demonstrating the predetermined mindset of investigating officer. It has
further been submitted that there was no role of Shahid Blawa in the
main charge sheet. Learned counsel also argued in detail regarding the
meaning of „perverse‟. Learned counsel also while adopting the
arguments raised on behalf of respondent No.3, re-emphasized the law
on the grant of appeal. It has been submitted that there is presumption
of innocence which is further notified and that the judgment may only
be interfered with if it is found to be perverse. Moreover, it is submitted
that this Court cannot substitute its view with that of the learned Trial
Court. Learned counsel submitted that there have to be compelling
substantial reasons to interfere in the order of the learned Trial Court.
Submissions of Respondent No. 5/ Vinod Goenka
116. Mr. Mukul Rohtagi, learned senior counsel for respondent No.5/Vinod
Goenka has submitted that while granting leave to appeal, the Court is
required to examine the case individually against each accused.

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117. The Court is required to see whether the case is made out distinctly to
grant leave of appeal against each particular accused. The reliance has
been placed upon State (Govt. of NCT of Delhi) v. Mukesh & Ors.89. It
has further been submitted that leave can only be granted if the order of
the acquittal is perverse and unreasonable. The reliance has been placed
upon Ghurey Lal v. State of Uttar Pradesh (Supra). Learned senior
counsel has further submitted that the leave is not to be granted if the
learned Trial Court has taken a view which is plausible and reasoned.
The reliance has been placed upon Babu and Ors. v. State of Uttar
Pradesh90 . It has further been submitted that if the judgment of the
Trial Court is arrived at after proper appreciation of evidence, High
Court should not interfere with the same. The reliance has been placed
upon Bannareddy v. State of Karnataka91.
118. Learned senior counsel submitted that the first allegation against the
respondent is he had prior relationship/acquaintance with Sh. A. Raja
and abated the receipt of illegal gratification by A. Raja to the tune of
Rs.200 Crores. Learned senior counsel submitted that this allegation is
based on testimony of PW-7. The attention has been invited to the
examination-in-chief dated 19.12.2011 and the cross examination dated
21.12.2011 and 04.01.2012. Learned senior counsel submitted that any
acquaintance with R-1/A. Raja in 2005 for construction projects of DB
Realty is false and tutored as DB Realty was only incorporated in
January, 2007. It has further been submitted that no documentary
evidence has been produced showing any visit of respondent-5 to the
89
2016 (228) DLT 389
90
1983 2 SCC 21
91
2018 5 SCC 790

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office of respondent-1. It has further been submitted that the evidence
of PW 152, the Investigation Officer, confirms that the respondent-5
was wrongly framed. The Court‟s attention was invited to para 362 and
363 of the Trial Court judgment. In regard to the conspiracy of “Cut of
Dates” and implementation of “First Come First Serve Policy,” learned
counsel submitted that there is no evidence as to involvement of
respondent-5 as regards to manner in which LoI was applied for or was
processed in DoT or its distribution by DoT or compliance by STPL in
DoT. The reference has been made to paragraph 744 to 770 of the Trial
Court Judgment.
119. In regard to allegation of ineligibility of STPL and consequential
payment of Rs.200 Crores as illegal gratification, learned counsel
submitted that the appellant alleged that Clause 8 of UASL Guidelines
applies on the date of the application and hence, STPL was ineligible
and therefore, the act of holding STPL as eligible was an alleged
conspiracy. In regard to this, the reference was made to the testimony
of PW-60, A. K. Srivastava, recorded on 22.08.2017.
120. Learned counsel submitted that as per the testimony, this condition was
to be seen as it was applicable only after grant of LoI. In regard to the
illegal gratification, the learned counsel submitted that Firm Dynamix
Realty is a partnership firm consisting of DB Realty Limited,
Eversmile Construction Co. Pvt. Ltd and Conwood Construction &
Developers Pvt. Ltd. Wherein DB Realty Ltd has 99% share and two
other partners had a meager 1% share in the partnership firm. Learned
counsel submitted that as per the Memorandum of Articles of DB
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above Rs.20 crores in a single transaction or multiple transaction put
together. It has been submitted that neither Dynamix Realty nor any of
its partners are accused nor any allegation of offence of payment of
illegal gratification has been made against them. Learned counsel
submits that in absence of this, there can be no vicarious liability
invoked against Respondent No.5. It has further been submitted that
there is no allegation of “demand” and “to obtain illegal gratification”
being made by the prosecution in the entire case. Reference has been
made to the testimony of PW-151, Sh. S. K. Sinha, recorded on
07.11.2013. Learned counsel submitted that the learned Trial Court has
minutely examined the transaction of alleged illegal gratification of
Rs.200 crores and inter alia concluded that there is no material on
record to link Sh. A. Raja with abovesaid transfer of Rs.200 Crores to
Kalaignar TV (P) Ltd. It is submitted that the learned Trial Court inter
alia held that the prosecution case is in this regard without merit.
Learned counsel submitted that there is no material on the record
against the respondent No.5 and therefore the leave to appeal may be
refused against the respondent No.5. The reliance has been placed
reliance upon State of Madras v. C.V. Parekh92 and in Aneeta Hada v.
M/s Godfather Travels & Tours93.
121. Mr. Mukul Rohtagi, learned senior counsel for respondent no.5 has also
placed reliance upon State (Govt. of NCT of Delhi) vs. Mukesh &
Ors.94. Learned senior counsel has submitted that in Ghurey Lal vs.
State of U.P. (supra), it was inter alia held that there has to be "very
92
(1970) 3 SCC 491
93
(2008) 13 SCC 703
94
2016 (2) JCC 1127

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substantial and compelling reasons" to discard the trial court‟s decision.
Learned senior counsel has submitted that such substantial and
compelling reasons are only if the conclusion of the trial with regard to
the fact is palpably wrong or the learned trial court decision was based
on an erroneous view of law. Learned senior counsel has submitted that
such reason can only be if the trial court judgment is likely to result in a
"grave miscarriage of justice". Learned senior counsel has submitted
that it was further held that the high court can interfere if the trial court
in dealing with the evidence was patently illegal and impugned
judgment was manifestly unjust and unreasonable. Learned senior
counsel relied upon Babu and Others vs. State of Uttar Pradesh
(supra) and submitted that in this case it was inter alia held that the
order of the learned trial court should be slow in disturbing the fact by
the trial court even if it is possible to reach at a different conclusion on
the basis of material on record. Learned senior counsel has further
relied upon Banna Reddy and Others vs. State of Karnataka 95 and
submitted that the high court should not interfere in the order of the
learned trial court if the same is passed on the proper appreciation of
evidence unless there are strong and compelling reasons. Learned
senior counsel relied upon Dayle De-Souza vs. Government of India
through Deputy Chief Labour Commissioner 96 to emphasise that
respondent no.5 in this case cannot be held liable as he was not “in
charge of” and “responsible to” the firm for the conduct of its business.
Similarly, learned senior counsel has submitted that a partner can also

95
(2018) 5 SCC 790
96
2021 (20) SCC 135

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be held liable as a director if the offence is committed with the consent
or connivance or is attributed to any neglect on the part of the partner
concerned. Learned senior counsel has relied upon this judgment to
emphasis his point that the company has not been made an accused
which was imperative and therefore the case of the prosecution suffers
from legal infirmity.
122. Learned senior counsel has submitted respondent no.5 was not
concerned with the day to day working of the company and therefore
he cannot be held criminally liable merely because he was a partner or
director. Learned senior counsel has further submitted that vicarious
liability must be pleaded and proved. Learned senior counsel has
submitted that initiation of prosecution has adverse and harsh
consequences for the persons named as accused and the court should
play a proactive role in protecting the persons from the harassment.
Learned senior counsel has further relied upon Sharad Kumar Sanghi
vs. Sangita Rane 97 . Learned senior counsel has submitted that
proceedings against an employer of a company cannot be instituted
without the company being an accused. Learned senior counsel has
submitted that in the present case the allegations against R-5 are
absolutely vague. It has been submitted that when the company has not
been arrayed as an accused, the proceedings cannot continue.
Submissions of Respondent No. 6/ Swan Telecom Private Limited (Now
known as Etisalat DB Telecom Private Limited)
123. Mr. Anshul Sehgal, learned counsel for respondent No. 6, Swan
Telecom Private Limited (Now known as Etisalat DB Telecom Private
97
(2015) 12 SCC 781

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Limited), submits that Hon'ble High Court of Bombay vide Order(s)
dated 18.11.2013, 08.04.2014 and 20.02.2015, in C.P. No. 114 of 2012
titled „Etisalat Mauritius Limited v. Etisalat DB Telecom Private
Limited & Ors‟, directed the winding up/liquidation of R-6. It has been
submitted that the affairs of R-6 are being managed by the Official
Liquidators and the present submissions are being filed on behalf of the
Official Liquidators of the R-6 and are based only on the records
available with the office of the Official Liquidator.
124. Learned counsel submitted that the impugned judgment is well-
reasoned and there exists no glaring procedural or substantive defect,
error, illegality or omission or any perversity warranting any
interference by this court. Learned counsel also argued in detail about
the scope of leave to appeal and relied upon Nikhil Chandra Mondal v.
State of West Bengal98, State of Odisha v. Banabihari Mohapatra &
Anr.99, Muralidhar @ Gidda vs. State of Karnataka100, Murugesan v.
State101, Rohtash v. State of Haryana102, Babu v. State of Kerala103,
Chandrappa and Others v. State of Karnataka, (Supra), Dhanpal vs
State by Public Prosecutor Madras104, Ghurey Lal v. State of U.P.,
(supra), State of U.P. v. Banne @ Baijnath and Ors.105.
125. It has been submitted that leave to appeal can be granted only in
exceptional cases where there are very substantial and compelling

98
(2023) 6 SCC 605 [Para 18-23]
99
(2021) 15 SCC 268 [Para 32-37],
100
(2014) 5 SCC 730 [Para 12]
101
(2012) 10 SCC 383, [Para 34]
102
(2012) 6 SCC 589, [Para 27]
103
(2010) 9 SCC 189, [Para 19, 20]
104
(2009) 10 SCC 401 [Para 41]
105
(2009) 4 SCC 271 [Para 28]

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reasons / circumstances, and the judgment under appeal is found to be
perverse. Learned counsel enumerated the role attributed to respondent
No. 6 which has not been repeated herein for the sake of brevity. It was
submitted that CBI has brought the attention of this court to certain
selective lines/paragraph of the Impugned Judgment to mislead the
court and has failed to highlight any perversity in the Impugned
Judgment. Nor has the CBI been able to make out a prima facie case or
any arguable points, which warrant interference by this Court.
126. Learned counsel submitted that in regard to the familiarity between R-
1, R-2, R-3, R-4 and R-5, the arguments advanced may be considered.
However, it has been submitted that such familiarity cannot be
attributed to R-6. Learned counsel submitted that the note dated
10.01.2008 which deals with the procedure for allocation of LOI‟s i.e.,
Ex PW 52/A was prepared by Sh. RK Gupta (PW-88) and was
approved by Mr. AK Srivastava (PW-60) and was later forwarded to
Member(T) and R-2. Learned counsel submitted that therefore, the
entire scheme was designed by PW-88 in consultation with PW-60.
127. Learned counsel submitted that in the cross examination PW-88
admitted that it was marked to R-2 for information. It has further been
submitted that testimony of PW-60 has rightly been rejected by the Ld.
Trial Court as the same was found to be contrary to the record and to
other witness Mr. SE Rizwi [Under Secretary, DoT] (PW-49). Learned
counsel has also invited the attention of the court to the testimony of
Mr. Nitin Jain (PW-110), and testimony of Mr. K Sridhar (PW-77).
128. Learned counsel submitted that the Ld. Trial Court has duly considered
the testimony of Mr. Madan Chaurasia (PW-81), Mr. Sukhbir Singh

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(PW-75), Mr. AS Verma (PW-62), Mr. N.M. Manickam (PW-123) as
well as the testimony of Mr. A Raja (R-1 and DW-1) and Mr. RK
Chandolia (R-3 and DW- 22). It has been submitted that in para 946 to
961 the Ld. Trial Court rejected the version of the prosecution. It has
been submitted that the Ld. Trial Court has rightly held that no case
was made out qua R-6. It has further been submitted that in fact with
the alleged change in FCFS, R-6 was not at all favoured, rather it lost
out on priority in several telecom circles on account of this change. It
has been submitted that R-6 had made applications for grant of Unified
Access Service License (UASL) on 02.03.2007, however, on account
of change in policy on 10.01.2008, several applicants/companies who
had applied for UASL much later than R-6, in effect, moved ahead in
the queue.
129. Learned counsel further submitted that another allegation against R-6 is
that it had prior information of manipulation in the FCFS and therefore,
it got their Performance Bank Guarantee (PBG) and Financial Bank
Guarantee (FBG) prepared in November 2007. Learned counsel
submitted that this issue has been dealt extensively by the court in para
985 to 1011. Learned counsel submitted that it was rightly concluded
by the Ld. Trial Court that TTSL (Tata Tele Services Limited) knew
about the change in priority as early as 11.10.2017 in respect to which
the attention was invited to Para 988-990. In this regard, reference was
also made to the testimony of Mr. A.S. Narayana [Dy. General
Manager. Loop Mobile India Ltd.] (PW-80) whose testimony also
evinced prior knowledge about issuance of LOI and the change in
procedure of allocation of spectrum. Similarly, reference was also

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made to the testimony of Ms. Preeti Malhotra [Executive Director,
Spice Communications](PW-67) and the letter dated 28.11.2007
written to Chairman, Telecom Commission, wherein Spice requested
that their seniority be fixed from the date of Application.
130. Learned counsel submitted that the Ld. Trial Court after considering
the testimony of Mr. Akhlesh Kumar Saxena [Vice President
(Corporate), Spice Communications] (PW-33), Mr. Arun Kumar
Dalmia [Advisor to Allianz Infratech (P) Ltd.] (PW-34), Mr. Rahul
Vats [ Assistant Vice President, Idea Cellular Limited] (PW-40) inter
alia observed that everything happening at DoT was an open secret to
everyone and therefore no individual can be specifically blamed for
providing prior information. It was submitted that there was nothing in
the testimony of Mr. Vivek Priyadarshi [Investigating Officer] (PW-
153) and Dy. SP Rajesh Chahal (PW-147), to highlight as to how R-6
and R-8 had specific knowledge of the changed procedure of
allocation.
131. In this regard reference was also made to Mr. Nandan Singh Rawat
[Publisher, Business Standard] (DW-13) and Mr. Anil Kumar [Indian
Express] (DW-14) on the basis of which, the Ld. Trial Court concluded
that the change in procedure of allocation was contemplated much
before by the DoT and almost everyone knew about it. Learned counsel
submitted that thus there is no illegality or perversity in the order of the
Ld. Trial Court.
132. Reliance has been placed upon Central Bureau of Investigation v.

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Shyam Bihari And Others106 and The Govt. Of NCT of Delhi v. Sh.
Rama Shankar Pandey & Another107.
133. (213) Mr. Anshul Sehgal learned counsel appearing for respondent
No.6 placed reliance on Murugesan vs. State108 wherein it was inter
alia held that:
"34. It will be necessary for us to emphasize that a possible view
denotes an opinion which can exist or be formed irrespective of
the correctness or otherwise of such an opinion. A view taken by a
court lower in the hierarchical structure may be termed as
erroneous or wrong by a superior court upon a mere
disagreement. But such a conclusion of the higher court would not
take the view rendered by the subordinate court outside the arena
of a possible view. The correctness or otherwise of any conclusion
reached by a court has to be tested on the basis of what the
superior judicial authority perceives to be the correct conclusion.
A possible view, on the other hand, denotes a conclusion which
can reasonably be arrived at regardless of the fact where it is
agreed upon or not by the higher court. The fundamental
distinction between the two situations have to be kept in mind. So
long as the view taken by the trial court can be reasonably
formed, regardless of whether the High Court agrees with the
same or not, the view taken by the trial court cannot be interdicted
and that of the High Court supplanted over and above the view of
the trial court.
35. A consideration on the basis on which the learned trial court
had founded its order of acquittal in the present case clearly
reflects a possible view. There may, however, be disagreement on
the correctness of the same. But that is not the test. So long as the
view taken is not impossible to be arrived at and reasons therefor,
relatable to the evidence and materials on record, are disclosed
any further scrutiny in exercise of the power under Section 378
Cr.P.C. was not called for.”

106
(2023) 8 SCC 197
107
2010 SCC Online Del 4045
108
(2012) 10 SCC 383

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134. Learned counsel has also relied upon Ghurey Lal (supra) which is
primarily a judgment on the scope of grant/refusal of leave to appeal
and the factors which are to be considered in doing so.
135. Learned counsel has relied upon CBI vs. Shyam Bihari & Ors.(supra)
Learned counsel has also relied upon Govt. of NCT of Delhi vs. Rama
Shankar Pandey109 wherein it was inter alia held that with an order of
acquittal, the presumption of innocence gets fortified and the high court
should not substitute its own view with the view taken by the trial
court.
Submissions of Respondent No. 7/Sanjay Chandra
136. Ms. Rebecca John, learned senior counsel for respondent No. 7
reiterated the law regarding the scope of jurisdiction to be exercised at
the time of grant of leave to appeal. Learned senior counsel submitted
that M/s Unitech wireless companies were eligible to apply for a
telecom license and no adverse finding with respect to the eligibility
has been recorded by the Ld. Trial Court. Learned senior counsel
submitted that the testimony of PW 60 and PW 7 has rightly been
discarded by the Ld. Trial Court. In regard to the association/familiarity
between R-7 and R-1. Learned senior counsel submitted that the only
witness of the prosecution in this regard PW 7 has rightly been
discarded by the Ld. Trial Court. Learned senior counsel submitted that
the testimony of PW 7 was unsupported by any documentary or other
corroborative evidence. It has further been submitted that the statement
under Section 161 Cr.P.C. of PW 7 was recorded at a much-belated
state and he consistently improved his version as is evident from the
109
2010 SCC OnLine Del 4045

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confrontations made during the course of cross-examination recorded
on 02.01.2012.
137. The attention was also invited to the cross examination of PW 7
recorded on 04.01.2012. It has been submitted that the reading of cross
examination would make it clear that there was no occasion for R-7 to
meet with R-1. It has further been submitted that all applications with
respect to environmental clearances were dealt by two officials of M/s
Unitech Ltd. and the application were dealt by a committee called the
Environmental Approval Committee and the Minister was not a part of
the Committee. Learned senior counsel submitted that even in the
statement recorded under Section 313 Cr.P.C. R-7 denied to have met
A-1. Learned senior counsel submitted that even R-1 appearing as a
defense witness stated that he never had any meeting with R-7. Learned
counsel invited the attention of the court to para 355 and 357 wherein it
was inter alia held by the Ld. Trial Court that it could not be
established that R-7 was in conspiracy with accused persons at all.
138. In regard to the fixation of cutoff date, learned counsel submitted that
in this regard the recommendation of TRAI has to be read holistically.
It has been submitted that the necessity of a cutoff date was based on
the large number of applications already received by 24.09.2007. It has
been submitted that the application of Unitech was received on
24.09.2007 and therefore it was in any manner before the cut-off date
i.e., 01.10.2007. Learned counsel submitted that in this regard the star
witness of the prosecution was PW 60 which has rightly been discarded
by the Ld. Trial Court.
139. In regard to the setting up of four counters, learned counsel submitted

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that as per the testimony of PW 11 Nripendra Mishra, PW 110 Nitin
Jain, PW 60 AK Srivastava, and PW 36 DS Mathur, FCFS was not a
fixed/defined policy and it was not followed by the DoT in the past
also. Learned counsel submitted that there is no evidence that any
policy was adopted in pursuance of any criminal conspiracy. Learned
counsel submitted that Unitech's applications were taken up at the third
position on counter number 4 and as such they were virtually the last to
be handed over the LoIs. Learned counsel has invited the attention of
this court to the para 741, 742, 756, 757, 791 and 815 of the impugned
judgment wherein the findings were summarized by the Ld. Trial
Court. Learned counsel submitted that the policies change with
evolving needs and it has to be left, best to the functionary.
140. In respect to the prior knowledge of the accused companies/individuals,
learned counsel submitted that it is not disputed that 8 Unitech Wireless
companies prepared their Demand Drafts in October 2007, and in lieu
thereof, had got prepared fresh Demand Drafts on 24.12.2007.
However, this cannot be termed as any act in furtherance of any
criminal conspiracy. Learned counsel submitted that the drafts were
prepared in accordance with directives of UASL Guidelines of 2005
which suggested that the license fee would be payable immediately
upon the issuance of LoIs. Learned counsel submitted that the
preparation of the draft was merely an act of preparedness and not prior
knowledge amounting to insider knowledge.
141. Learned counsel submitted that the other companies who got the draft
prepared at the nick of the time can be taken as the person who had all
the information. Reference has been made to the testimony of PW 34

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Arun Kumar Dalmia, PW 35 T. Narasimhan, PW 21 Vinod Kumar
Buddhi Raja, PW 38 Rupinder Sikka, PW 40 Rahul Vats, PW 39
Surender Lunia, PW 41 Anand Dalal, PW 33 Akhilesh Kumar Saxena,
PW 67 Preethi Malhotra, PW 54 Ajay Sharma. Learned counsel
submitted that in the statement under Section 313 of Cr.P.C. accused
had made and detailed and specific statement.
142. In respect to the non-revision of entry fee, learned counsel submitted
that the Ld. Trial Court has rightly relied upon testimony of PW 78 Dr.
D. Subba Rao and has correctly recorded in para 1621 that there is not
even a scrap of evidence in the detailed statement of the Finance
Secretary, that the Finance Ministry was asking for revision of price of
initial spectrum/entry fee. Learned counsel submitted that the
impugned judgment is meticulously reasoned judgment and warrants
no interference and therefore the present leave to appeal is liable to be
rejected.
143. Reliance has been placed upon State of Kerala vs. Chellappan Sanal
Kumar110, State of Rajasthan vs. Babu Meena111, State of Rajasthan
vs. Ram Niwas112 and State of Rajasthan vs. Ganpat Singh113.
144. Ms. Rebecca John, learned senior counsel for respondent no.7 has
relied upon State of Kerala vs. Chellappan Sanal Kumar114 wherein
the supreme court while dealing with the rejection for leave to appeal
by the High Court inter alia held that since the conclusions of the
learned sessions judge appeared to be reasonable, there is no reason to

110
1981 Supp SCC 15
111
2013 4 SCC 206
112
2010 15 SCC 463
113
2001 SCC OnLine SC 118
114
1981 Supp SCC 15

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differ them. Learned senior counsel has further relied upon State of
Rajasthan vs. Babu Meena115. In this case also the leave to appeal was
rejected by the High Court. The apex court while dealing with the
challenge of the order of the high court inter alia held as under:
“9. ….It has often been said that oral testimony can be
classified into three categories, namely (i) wholly reliable, (ii)
wholly unreliable and (iii) neither wholly reliable nor wholly
unreliable. In case of wholly reliable testimony of a single
witness, the conviction can be founded without corroboration.
This principle applies with greater vigour in case the nature of
offence is such that it is committed in seclusion. In case
prosecution is based on wholly unreliable testimony of a single
witness, the court has no option than to acquit the accused.
10. In the background of the aforesaid legal position, when we
consider the case in hand we are of the opinion that the
statement of the prosecutrix is not at all reliable or in other
words wholly unreliable. No other evidence has been led to
support the allegation of rape. Hence, it shall be unsafe to base
the conviction on her sole testimony...."

145. Learned senior counsel has further relied upon State of Rajasthan vs.
Ram Niwas116 which was also a judgment on the scope of leave to
appeal. Learned senior counsel has also relied upon State of Rajasthan
vs. Ganpat Singh117.
Submissions of Respondent No. 8/ M/s Unitech Wireless
146. Mr. D. P. Singh, learned counsel for respondent No. 8 submitted that
the Ld. Trial Court has taken a reasonable view and there is no
illegality or perversity in the same. Learned counsel submitted that an
order of acquittal cannot be interfered only if there are two possible

115
2013 SCC OnLine SC 147
116
(2010) 15 SCC 463
117
2001 SCC OnLine SC 118

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views. Reliance has been placed upon Muralidhar @ Gidda vs. State
of Karnataka118; Chandrappa & Ors. vs. State of Karnataka (Supra);
Ghurey Lal v. State of U.P. (Supra); State v. U.P. v. Banne
@Baijnath 119 ; Dhanpal v. State 120 ; State (Delhi Administration) v.
Prithi Singh121; Hans K Jain v. Renu Gandotra122.
147. Learned counsel submitted that in order to fully understand the case of
respondent No. 8 a snapshot of the timeline is to be considered. It was
submitted that a policy decision concerning various government
departments and ministries has been attempted to be given a criminal
color. The timeline was explained by the learned counsel which is as
follows:

118
(2014) 5 SCC 730 Para. 12
119
(2009) 4 SCC 271 Para. 28
120
(2009) 10 SCC 401 Para. 41
121
(1991) 45 DLT 172 Para. 5
122
2015 SCC OnLine Del 7846 Para. 13

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148. Learned counsel submitted that the decision was taken in line with the
Directive Principles of State Policy and such decisions should not be
interfered into by the court only because the court feels that another
policy decision would have been better and more so in the technical
case. Reliance has been placed upon Dhampur Subar (Kashipur) Ltd.
v. State of Uttaranchal123: Federation of Railway Officers Association
v. Union of India124.

123
(2007) 8 SCC 418 Para. 63
124
(2003) 4 SCC 289 Para. 12

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149. Learned counsel submitted that the present case has a chequered
history where upon the report of the Central Vigilance Commission
dated 12.10.2009, FIR was registered on 21.10.2009. The CBI assumed
the CVC report as the gospel truth and accordingly, the case was setup
against R-8. Learned counsel submitted that the matter reached Apex
Court and during this period there was pressure from the media and the
public. The Apex Court on 16.12.2010 in Civil Appeal 10660 of 2010
passed a detailed order for investigation under the aegis of the Court.
Learned counsel submitted that CBI facing pressure from all corners,
prepared a fabricated case against the Respondents.
150. Learned counsel submitted that on 10.02.2011, the CBI assured the
Apex Court that a chargesheet would be filed by March 2011 and under
the supervision of the Apex Court, the Ld. Special Judge was appointed
to try the present case. It has been submitted that after intimating the
Apex Court, on 01.04.2011, the CBI filed two charge sheets against 17
accused persons. Learned counsel submitted that the investigating
officers did not possess the requisite knowledge of the telecom policies
or of corporate law and they selectively assigned culpability to only 2
licensees, one of which was Respondent No. 8.
151. Learned counsel submitted that the trial continued for 7 years and
finally a well-reasoned judgment was delivered. Learned counsel
submitted that R-8 is a victim of circumstance and cannot be
categorized as an accused. Learned counsel submitted that in terms of
the embargo created under Section 7, Companies Act, 1956, when none
of its directors or employees are an accused, there cannot be any
involvement of R-8 in the alleged conspiracy. Learned counsel

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submitted that actions of the Respondent No. 7 cannot be attributed to
Respondent No. 8 as he cannot be deemed to be controlling its mind or
alter ego. It has further been submitted that Respondent No. 8 was only
incorporated on 10.08.2007, by which date the policy decisions had
already been taken and all alleged meetings between Respondent Nos.
1 and 7 had taken place.
152. Learned counsel submitted that additionally before the registration of
the case shares of Respondent No. 8 had been agreed to be issued to
M/s Telenor Asia Pvt. Ltd. after obtaining all necessary approvals,
shares were allotted in various tranches with effect from 20.03.2009
against capital infusion in the Respondent 8. Learned counsel
submitted that it was only Respondent No. 8 which entered the market
and commenced operations in December 2009 and suffered huge losses
owing to a lack of a level playing field. Learned counsel submitted that
there is no evidence on the record showing the Familiarity of with
Respondent No. 1. It has been submitted that in this regard testimony
of PW 7 has rightly been rejected.
153. In regard to the fixation of cut-off date, it has been submitted that in
this regard the Ld. Trial Court has appreciated in detail the testimony of
PW 36, PW 60 as well PW 77. Learned counsel submitted that the
testimony of PW 36 belied the theory of conspiracy as he deposed that
respondent No.1 had expressed his desire to issue LoIs to all 575
applicants on which PW 36 had suggested that the same cannot be done
in light of spectrum availability.
154. Learned counsel submitted that the cut-off date remained to be
01.10.2007, However, a separate and independent decision was taken

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to process applications received upto 25.09.2007, which is corroborated
by the note of Nitin Jain and AK Srivastava‟s letter dated 06.10.2010.
Learned counsel submitted that even M/s Shyam Telelink Ltd. filed the
application after the application filed by respondent No. 8. Learned
counsel submitted that it was rightly inter alia concluded by the Ld.
Trial Court that cut-off date had no link with the filing of the
application by respondent No. 8. The attention was invited to para 430,
445, 446, and 520. Learned counsel submitted that due weightage was
given to the testimony of defence witnesses. Reliance was placed upon
Dudh Nath Pandey v. State of U.P.125.
155. In respect to the allegation of tinkering with the policy to favour
Respondent No. 8, learned counsel submitted that as per PW 36 FCFS
policy was confined to the grant of LOI, and the process related to the
allocation of spectrum was initiated by WPC. The attention in this
regard was invited to the testimony of PW 57 RJS Kushwaha, PW-87
Dinesh Jha, PW-121 T. K. Krishnan. Learned counsel submitted that
there is nothing on record to show that the date of application of UAS
license shall determine the seniority of the applicant for the spectrum
license. Learned counsel submitted that the prosecution miserably
failed to prove that there was FCFS policy, and if it existed, it was
being followed.
156. Learned counsel submitted that the case of the CBI is based on oral
testimony which was contrary to the official record. Learned counsel
submitted that the note regarding the four counters was originated by
PW 88 R.K. Gupta and Respondent No. 8 had no role in the same.
125
(1981) 2 SCC 166

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Learned counsel also submitted that there was no prior knowledge of
setting up of four counters. Learned counsel submitted that the change
in procedure was in public knowledge and referred to the testimony of
PW 42 Anand Dalal, PW 80 AS Narayanan, PW-67 Preeti Malhotra,
PW-34 Arun Dalmia, PW-40 Rahul Vats, PW-153 and PW-147
(Investigating Officers). Learned counsel submitted that there is no
material on record that Respondent No. 8 had any prior knowledge
about the date of issue of LoIs or manipulation of priority for spectrum
allocation.
157. Learned counsel submitted that regarding the allegation that
Respondent No. 8 kept the demand draft ready in October 2007, the
same was a matter of business prudence and readiness and in
compliance of UAS License Guidelines dated 14.12.2005. Learned
counsel submitted that had respondent No. 8 knew about the inside
details, there was no need for him to get the draft prepared in so much
advance.
158. In respect of offloading of shares by Unitech Wireless Companies,
learned counsel submitted that there was no prohibition on offloading
shares or issuance of fresh equity. Learned counsel submitted that in
regard to the Ineligibility of respondent No. 8, the companies had
passed Board Resolutions dated 12.08.2007 to enter into telecom field.
The object clauses were amended on 20.09.2007 which was affected
from resolution as per testimony of PW-104 Gaurav Jain. Learned
counsel submitted that in Board Meeting dated 01.10.2007, companies
proposed to change their name since ROC had issued certificate for
registration of resolution to alter object clause subject to company

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name being changed. The reference was made to the testimony of PW-
133 and 95 who found no illegality by Unitech Wireless Companies,
including in issuance of certificates.
159. Learned counsel submitted that the other competitors faced rejection
since they passed resolutions only after filing the applications, while a
similarly placed competitor was held to be eligible. Learned counsel
submitted that there is no criminality and there is no ground for grant of
leave to appeal.
160. Mr. D.P. Singh, learned counsel for R-8 has adopted the judgments
cited by the other learned colleagues.
Submissions of Respondent No. 9/Gautam Doshi
161. Mr. Siddharth Aggarwal, learned Senior counsel for respondent No. 9
submitted that the case of the appellant is based on conjecture, and
incomplete reading of evidence, and non-application of mind. Learned
senior counsel submitted that the first charge leveled against
respondent No. 9 in the Chargesheet was that Respondent No. 9 along
with Respondent No. 10 and 11, structured/created net worth of M/s
Swan Telecom Pvt. Ltd. (herein after referred as „STPL‟) out of funds
arranged from M/s Reliance Telecom Ltd. (hereinafter referred as
„RTL‟) or its associates, for applying to the Dept. of
Telecommunication (hereinafter referred as „DOT‟) for Unified Access
Services licenses (hereinafterreferred as „UAS license‟) in 13 circles,
where RTL had no GSM Spectrum, in a manner that its (STPL‟s)
association with RTL may not be detected. It was also alleged that the
day-to-day affairs of STPL and Tiger Traders Pvt. Ltd. (hereinafter
referred as „TTPL‟), which held majority stake (more than 90%) in

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STPL, were managed by Respondent No. 9, 10 and 11 either through
themselves or through other officers / consultants related to Reliance
ADA Group.
162. Learned senior counsel submitted that the Ld. Trial Judge on the basis
of material on record framed a specific issue regarding the ineligibility
of STPL and United Group companies and the role of Respondent No.
9, 10 and 11 and other accused persons. Learned senior counsel
submitted that in fact even in the charge sheet no role was attributed to
Respondent No. 9 in the determination of eligibility of STPL and the
grant of license to STPL. Learned senior counsel submitted that the Ld.
Trial Court after appreciating the entire material on record and the
testimony of PW 2 Sh. A.N. Sethuraman, PW 17 Nilesh Doshi, PW 21
Sh. V K Buddiraja, PW 19 Sateesh Seth, PW 72 Pradeep Shah, Mahesh
Gandhi (PW 51), DeoDutt Pandit (PW 96), Ujwall Metha (PW 68),
Ashish Karyekar (PW 100), Hasit Shukla (PW 101), Ashok Wadhwa
(PW 71), SAK Narayanan (PW 118), Jignesh Shah (PW 138) inter alia
held that STPL was under the ownership and control of DB Group
since 03.03.2007 and hence was eligible on the date of filing of UASL
Application.
163. The reliance was placed upon Shareholder Agreement dated
01.03.2007 (Ex. PW 1/DA). Learned senior counsel submitted that
once it is established on the date of application for UASL, STPL was a
company of DB Group all the other aspects of the charges against
Respondent No. 9 become irrelevant. However, the Ld. Trial Court for
the sake of completeness referred to testimony of PW 19 Sh. Sateesh
Seth and PW 101 Sh. Hasit Shukla.

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164. Learned counsel submitted that no misrepresentation was made to DoT
by anybody including in particular Respondent No. 9. Learned counsel
submitted that in the appeal the testimony of PW 19 and PW 101 has
not been challenged at all and therefore by implication the appellant
has admitted the same. Learned counsel submitted that respondent No.
9 cannot be attributed any role in managing the affairs of STPL and
TTPL. Learned counsel submitted that the appellant itself in the Appeal
accepted the fact that affairs of STPL and TTPL were carried out by the
officials of Reliance ADA Group. Learned counsel submitted that
there was no material on record that respondent No. 9 had any role in
the incorporation and subsequent corporation of STPL. In this regard,
reference was made to the testimony of PW 14 Sh. Paresh Rathod, PW
72 Sh. Pradeep Shah, Nilesh Doshi (PW 17), Mr. AN Sethuraman (PW
2). In regard to the conspiracy, learned counsel submitted that the Ld.
Trial Court has rejected the theory propounded by the prosecution.
165. Learned counsel submitted that it is the case of the prosecution that Sh.
Nilesh Doshi and Sh. Sunil Doshi were the directors of STPL and
TTPL before the appointment of Sh. Anand Bhatt and Sh. Ashok
Wadhwa. Learned counsel also submitted that it also the case of the
prosecution itself that STPL and TTPL stood transferred from 2006 to
Sh. Nilesh Doshi and Sh. Sunil Doshi. Therefore there cannot be any
possibility of respondent NO. 9 to be part of any conspiracy, nor is
there any material on record in this regard.
166. Learned counsel submitted that the case of the prosecution is totally
without any basis is liable to be rejected.

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167. Learned counsel for respondent no.9 has relied upon CBI vs. Shyam
Bihar & Ors. (supra).
Submissions of Respondent No. 10/ Surendra Pipara
168. Mr. Siddharth Aggarwal, learned senior counsel for respondent
no.10/Mr. Surender Tripathi submitted that the order of the learned trial
court is well reasoned and there is no illegality and perversity in the
judgment of the learned trial court. It has been submitted that the CBI
has failed to make out any case for a grant of leave to defend.
169. Learned senior counsel submitted that CBI has alleged that R10 entered
into a criminal conspiracy with other accused for grant of USAL
license to Swan Telecom P. Ltd. (in short „STPL’) being Senior
Officer of Reliance Anil Dhirubani Ambani Group („in short
„RADAG’). He was involved in controlling and managing the
companies. Learned senior counsel submitted that the allegations
against the answering respondents are as follows:
a. Preparation of false minutes of board meetings of STPL
and Tiger Trader P. Ltd. (TTPL) showing the appointment of
Sh. Ashok Wadhwa (PW 71) as Director and his presence
during the meetings.
b. Presided over board meetings of STPL when the crucial
decisions regarding raising its equity, allotment of shares,
applications to DoT etc. were taken by STPL;
c. Chaired the Board Meetings of TTPL when the company
subscribed majority equity in STPL and funds for the purpose
were arranged;
d. As Director in STPL and TTPL, he was also representing the
interests of Reliance Telecom Ltd. (RTL);
e. Managing day-to-day affairs of the companies during the
relevant period i.e., January, 2007 to March, 2007

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170. Learned counsel submitted that the learned trial court after appreciating
the evidence of Nilesh Doshi (PW 17), Hasit Shukla (PW 102),
Ramesh Shenoy (PW 139), Pradeep Sevanti Lal Shah (PW 72), Ujjwal
Metha (PW 68) and Sh. S. A. K. Narayanan (PW 118) inter alia held
that STPL, though initially incorporated by employees of Reliance
ADA group, but was transferred to Sh. Sunil Doshi and Sh. Nilesh
Doshi, later on to Sh. Ashok Wadhwa and Sh. Anand Bhatt and then to
DB group. It has been submitted that the learned trial court rejected the
testimony of PW71 Sh. Ashok Wadhwa as been contrary to the record.
171. Learned counsel further submitted that the learned trial court after
taking into account the testimony of Sateesh Seth (PW-19), Anand
Wadhwa (PW 71), Hasit Shukla (PW-102) and Ramesh Shenoy (PW
139) to the effect that RTL has minority share (less than 10 present)
share in STPL and that R-10 was appointed as an Employee Director in
STPL for and on behalf of RTL. It was also explained by the
prosecution witnesses that the decision to invest in STPL was taken by
the business team. R-10 had no role in taking the crucial decisions
regarding raising its equity, allotment of shares, applications to DoT
and Managing day to day affairs of Companies during the relevant
period.
172. Learned counsel submitted that the learned trial court has duly taken
into account the testimony of Nilesh Doshi (PW-17) that STPL and
other companies were handed over to Anand Bhatt at his request and
that he was managing the said companies. Learned counsel submitted
that A.N. Sethuraman (PW 2) had deposed that he received the
instructions for filing the UASL application from Anand Bhatt.

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Similarly, PW-72 Pradeep Sevanti Lal deposed that he was invited in
the board of STPL and TTPL by Anand Bhatt.
173. Learned counsel has further placed reliance upon testimonies of Nilesh
Doshi (PW 17), Sateesh Seth (PW 19), VK Buddhiraja (PW 21),
Mahesh Gandhi (PW 51), Pradeep Shah (PW 72), DeoDutt Pandit (PW
96), Ujwall Metha (PW 68), Ashish Kareykar (PW 100) Hasit Shukla
(PW 101), Ashok Wadhwa (PW 71), SAK Narayanan (PW 118) and
Jignesh Shah (PW 138) to confirm that the said Companies stood
transferred to DB Group in March 2007.
174. Learned counsel submitted that the learned trial court had duly taken
into account the Shareholder Agreement dated 03.03.2007 (Ex. PW
1/DA) executed between DB Group, STPL and TTPL wherein the
control of STPL was vested in DB Group and the same was confirmed
by Hasit Shukla (PW 102) and Anand Subramanium (PW 1). Learned
counsel submitted that there is no evidence to attribute any criminality
on the part of R-10.
175. Learned counsel further submitted that Nilesh Doshi (PW 17) deposed
that he along with Mr. Sunil Doshi were the only Directors of the
companies and were in complete control of the companies and had not
been taking instruction from any person. In regard to the taking of
commercial decisions, learned counsel submitted that Sateesh Seth
(PW 19) had deposed that though respondent no.10 was on the board of
RTL, however, the decision to invest/divest was taken by the business
team of Reliance Group and that the Board used to only execute or note
the decisions which have been taken. In this regard reliance has been
placed upon the testimonies of Mr. Hasit Shukla (PW 101) and VK

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Budhiraja (PW 21). It has been further submitted that the case of R-10
is different from the case of R-1 to R-3. Learned counsel submitted
that there is no material on record to link R-1 to R-3 to R-10. Learned
counsel submitted that the present case has been filed mechanically and
there is no ground to interfere in the judgment of the learned trial court.
176. Learned counsels for Respondent no.10 has also adopted the judgments
cited by the other learned colleagues.
Submissions of Respondent No. 11/ Hari Nair
177. Mr. Siddharth Aggarwal, learned senior counsel appearing for R-
11/Hari Nair submitted that the impugned judgment of the learned trial
court reflects a thorough examination of the entire evidence and has
deftly captured the fact that the case of the CBI rested upon
circumstantial evidence of a purported criminal conspiracy amongst the
accused persons. Learned counsel submitted that the learned trial court
after thorough marshaling of evidence and clear application of judicial
mind passed the impugned judgment.
178. Learned counsel submitted that the role attributed to R-11 was that as
an employee of the Reliance Anil Dhirubhai Ambani Group of
Companies [„RADAG‟] he entered into a criminal conspiracy with two
other employees i.e. Respondent No. 9 Respondent No. 10 to cheat the
Department of Telecommunications, Government of India [“DOT”]
into granting telecom licenses/UASL to an ineligible company.
179. Learned counsel submitted that primary allegations against R-11 were
(a) Structuring/creating the net worth of Respondent No. 6 Swan
Capital/Telecom Pvt. Ltd. ["Swan"] in January/February 2007
out of funds raised from Respondent No. 12 Reliance Telecom
Ltd. ["RTL"] (and its associates) in a manner that its

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"association" or true character as "alter ego" of RTL could not be
detected by DOT officials as being in violation of Clause 8 of
UASL Guidelines dated 14.12.2005
(b) Making applications for UASL on behalf of Swan in March 2007
in 13 telecom circles in which RTL did not have GSM
spectrum, in violation of Clause 8 of the UASL Guidelines dated
14.12.2005.
(c) Transfer of Swan to Respondent No. 4 Shahid Balwa and
Respondent No. 5 Vined Goenka on grant of spectrum to
Reliance Communications Ltd. ["RCL"] under the dual
technology policy on 18.10.2007, thereby facilitating and aiding
them in cheating the DOT to award UASL to Swan despite its
ineligibility.
180. Learned counsel submitted that the learned trial court in respect of the
allegations against the R-11 inter alia held that Swan's applications for
UASL in March 2007 had been made by PW-2 A. N. Sethuraman on
the instructions of Anand Bhatt. It was further submitted that Swan was
owned by the DB Group, on the date of its applications for UASL in
March 2007. In this regard, testimonies of PW-14 Paresh Rathod, PW-
17 Nilesh Doshi, PW-19 Sateesh Seth, PW-21 VK Buddhiraja, PW-51
Mahesh Gandhi, PW-109 Tushar Shah, PW-76 Faiyaz Ahmed, PW-96
Deodatta Pandit, PW-100, Ashish Karyekar, PW-101 Hasit Shukla,
PW-71 Ashok Wadhwa, PW-139, Ramesh Shenoy, PW-72 Pradeep
Shah, PW-68 Ujjwal Mehta, PW-118 SAK Narayanan and PW-137
Jignesh Shah were relied upon. The reliance was also placed upon the
Shareholders Agreement dated 01.03.2007 (Ex. PW1/DA).
181. Learned counsel submitted that the Swan was transferred to DB Group
on 18.10.2007 upon grant of in-principle approval for dual technology
to RCL by the DoT was inconsonance with the record maintained by
DoT or with other contemporaneous developments. Learned counsel

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submitted that Swan had applied for bank loans through the DB Group
as of 13.10.2007 and at that time the matter of granting in-principal
approval for dual technology was still under consideration at the DoT.
It has been further submitted that there is no evidence that Swan was
owned and controlled by RADAG as of the date of making UASL
applications. On the contrary, as per the record the Swan was owned
and controlled by DB Group on such date.
182. It has further been submitted that the funding of Swan by Reliance was
within permissible limits based upon a reasonable interpretation of
Clause 8 of the UASL Guidelines. The reliance has been placed upon
the testimonies of PW-2/AN Sethuraman, PW-19/Sateesh Seth and
PW-101/Hasit Shukla. Learned counsel submitted that the prosecution
has also failed to make out any case that Swan was an "associate" of
Respondent No. 12 RTL/RCL in terms of Clause 8 of the UASL
Guidelines dated 14.12.2005 and no evidence in this regard has been
placed.
183. It has been submitted that to the contrary, the testimonies of PW-60
AK Srivastava, PW-153/Vivek Priyadarshi, PW-150/VM Mittal, PW-
101/Hasit Shukla, PW-56/Rakesh Mehrotra and PW-70 Henry Richard
clearly established that the Clause was vague and capable of multiple
interpretations and therefore no criminality could be foisted for
violating a rule which had no definite meaning and suffered from the
vice of vagueness. Learned counsel submitted that the learned trial
court correctly proceeded on the basis that Clause 8 was a mere
guideline, for the violation of which no criminal charge/conviction
could lie.

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184. Learned counsel submitted that the prosecution has failed to make out
any case that eligibility under Clause 8 of the UASL Guidelines dated
14.12.2005 had to be determined on the date of making the UASL
applications only. Learned counsel submitted that the Swan's
applications for UASL were duly scrutinized which defies the theory of
any conspiracy. Learned counsel submitted that there is no evidence
that Swan had filed for UASL applications in 13 service areas only to
secure GSM spectrum for the Reliance Group. In this regard, reference
was made to the testimonies of PW-101/Hasit Shukla and PW-
139/Ramesh Shenoy, who were the responsible officers of RADAG.
Learned counsel submitted that as per prosecution witnesses the
applications have been made on behalf of Anil Bhatt and RADAG's
interest in Swan was limited to investment for enhancing its passive
infrastructure business. Learned counsel submitted that the conclusion
arrived at by the learned trial court was in accordance with the
evidence and there is no material to interfere with the impugned
judgment.
185. Learned counsels for Respondent no.11 has also adopted the judgments
cited by the other learned colleagues.
Submissions of Respondent No. 12/ M/s Reliance Telecom Ltd.
186. Ms. Manali Singhal, learned counsel for respondent No.12/M/s
Reliance Telecom Ltd. has submitted that the gist of the charge levelled
against Respondent no. 12 M/s RTL by the prosecution was that M/s
Swan Telecom Pvt. Ltd. (STPL) belonged to Reliance ADA group, an
existing licensee, on the date of application, that is, on 02.03.2007.
RCL, a company of Reliance ADA Group, was operating on CDMA

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technology M/s RTL was a subsidiary of Reliance Communications
Limited (RCL). It was also the case of the prosecution that STPL filed
applications in thirteen service areas where Reliance ADAG/ RCL had
no GSM spectrum, so it could avail the facility of GSM spectrum also
without any permission from DoT. It is the case of the prosecution that
STPL belonged to the Reliance ADA group and, as such, it was in
violation of clause 8 of UAS Guidelines.
187. Learned counsel submits that regarding the eligibility of the company,
the learned Trial Court in para 1292, 1295, 1347, 1348,
1366,1376,1389,1392 has clearly rejected the case of the prosecution.
Learned counsel further submitted that in regard to the fact that
whether the STPL was an “associate” of RCL/RTL, learned Trial Court
in para 1393, 1416, 1419, 1433, 1434 also inter alia held that the
criminal prosecution was totally unfair and unjustified. Learned
counsel also advanced arguments on the reasons leading STPL to file
the application for UAS license, STPL activated by reliance ADA
group to Secure GSM Spectrum, lifting of the corporate veil. Leasing
of passive infrastructure by STPL to RCL to repay the money to RCL
and invited the attention of the Court to para 1490, 1488,1495 and
1392. Learned counsel also invited the attention of the Court to para
1810, 1811, 1813, 1814, 1815,1817, 1818 and 1819.
188. Learned counsel submits that merely because another view is possible,
the story of the prosecution cannot be accepted. The learned counsel
has relied upon Chandrappa vs. State of Karnataka 126 , Sujoy

126
(2007) 4 SCC 415

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Mangesh Poyarekar (Supra), State vs. Amjad Khan127 and Ramesh &
ors vs. State of Haryana128.
Submissions of Respondents Nos. 13/Asif Balwa, 14/Rajiv B Agarwal
and 15/Karim Morani
189. Sh. Vijay Aggarwal, learned counsel for respondent No.13/Asif Balwa,
respondent No.14/Rajiv B. Agarwal, and respondent No.15/Karim
Morani submits that the primary allegations against these three persons
are money trail showing receipt of a pecuniary benefit by respondent
No.1 through Kalaignar TV (P) Ltd. Learned counsel invited the
attention to the Court to paras 1634 to 1643 of the impugned judgment.
Learned counsel also invited the attention of the Court to written
submissions/final arguments submitted by the respondent. Learned
counsel also invited the attention to the statement under Section 313
Cr. PC including their submissions under Section 313(5) Cr, PC and
submitted that all incriminating circumstances were not put to the
accused persons/respondent and the defense taken by the respondent
was not rebutted by the prosecution which was obligatory on the part of
the prosecution. Reliance has been placed on Parminder Kaur v. State
of Punjab 129 , Jai Prakash Tiwari v. State of Madhya Pradesh 130 ,
Reena Hazarika v. State of Assam131.
190. Learned counsel also submitted that the reply already filed dated
28.02.2019 may also be taken into consideration. Learned counsel
further submits that the CBI in his opening remarks on leave to appeal

127
Cr.L.P. 577 /2019
128
(2017) 1 SCC 529
129
(2020) 8 SCC 811
130
(2022) SCC OnLine SC 966
131
(2019) 13 SCC 289

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has read selective paras from the judgments and failed to bring to the
notice of this Court the aspects which dealt with how the CBI
conducted the prosecution before the learned Trial Court. Learned
counsel has invited the attention to the paras 1680, 1683, 1710, 1739,
1747, 1749, and 1812 to show the lacuna in the case of the CBI.
191. Learned counsel also argued in detail about the concept of perversity.
Reliance was placed upon Arulvela & Anr v. State132, Kuldeep Singh
v. The Commissioner of Police & Ors 133 , S.R Tewari v. Union of
India & Anr134. In regard to the law relating to lead leave to defend.
Learned counsel relied upon Chandrappa vs State of Karnataka,
(supra), State vs. Durga Prasad & Ors135, State v. Sanjay Kashyap
@Omi & Ors136, State of Rajasthan Vs Babu Meena (supra).
192. Learned counsel has submitted that at this stage, the Court is required
to see that not only arguable points have been raised but also there are
compelling and substantial reasons warranting the intervention of this
Court. Reliance has been placed upon State vs. Ram Singh.137
193. Learned counsel for Respondents no. 13, 14, and 15 has adopted the
judgments cited on behalf of respondents no.3, 4 & 5.
Submissions of Respondent No. 16/Sharad Kumar
194. Mr. Balaji Subramanium, learned counsel for respondent No.16/Sharad
Kumar argued on the scope of jurisdiction to be exercised its stage of
leave to appeal and submitted that “leave to appeal” has to be

132
(2009) 10 SCC 206
133
(1992) 2SCC 10
134
Civil appeal No. 4715-4716/23
135
Appeal 2450/1986
136
Crl. Appeal 861 of 2018
137
Crl.LP No 111/2011

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considered separately with respect to each of the respondents. Learned
counsel has submitted that no role was assigned in the Aide Memoire
or in the ground of the appeal to R-16. It has been submitted that the
role of the respondent was confined to the fact that he was a director of
KTV and attended Board Meetings. Besides this, he signed the Share
Subscription Agreement and Share Pledge Agreement. Learned counsel
has submitted that no criminality can be attributed merely on these
facts. Learned counsel has submitted that KTC the alleged beneficiary
of the amount, is not an accused and therefore respondent No.16 cannot
be vicariously liable. The reference has been made upon S. K. Alagh
vs. State of U.P.138.
195. Learned counsel has further submitted that the case of the defense from
the beginning was that the CFPL-KTV transaction was cancelled
because of disagreement over valuation and in this regard, the report
prepared by M/s Grant Thornton became a crucial document which was
not taken into account by the prosecution. Learned counsel submits that
the basic element of Section 7 of the Prevention and Corruption Act
has been not established. The reliance has been placed upon N.
Vijayakumar v. State of Tamil Nadu 139 , Soundarajan v. State 140 ,
Neeraj Dutta v. State141, Neeraj Dutta v. State142, and LK Advani v
CBI143.

138
2008 5 SCC 662
139
(2021) 3 SCC 687
140
2023 SCC OnLine SC 424
141
(2023) 4 SCC 731
142
2023 SCC OnLine SC 280
143
1997 Cri LJ 2559 (Del)

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196. Learned counsel has submitted that there is no evidence on the record
regarding the participation of respondent No.16 in the conspiracy. It
has also been submitted that the element of “knowledge” has also not
been established against Sharad Kumar. Learned counsel has submitted
that in regard to the allegations of the prosecution regarding the
association of Sharad Kumar with A. Raja, PW-116-Rajendran in their
evidence dated 03.05.2013 and PW 107 Amirtham, evidence dated
18.03.2023 have deposed that Sharad Kumar is not (and at the point of
time was) a member of the DMK.
197. Learned counsel submitted that therefore if the prosecution case is that
KTC is controlled by affiliates of DMK, it admits that this excludes
Sharad Kumar, since he had nothing to do with DMK and was not
controlling KTV in any manner. Learned counsel has submitted that the
fact that Sharad Kumar had left Sun TV Network and started KTV has
there is no evidence to this effect. The attention has been invited to the
testimony of PW-116/Rajendran dated 03.05.2013 and PW 107
Amirtham, dated 18.03.2023.
198. Learned counsel further submitted another allegation that R-1 was
pursuing the case of KTV for getting its license from the Ministry of
Information and Broadcasting and Sharad Kumar was frequently
visiting Sh. Raja in this connection, has also not been proved by the
prosecution and there is no evidence on the record. It has further been
submitted that the prosecution tried to argue that Sh. Raja used his
influence to place KTV on the Tata Sky bouquet of channels.
However, as per Ex-PW154/A-1, KTV has been on the bouquet of Tata
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199. Learned counsel submits that there is no evidence on record that
respondent No.16 knew the ultimate source of the money being
received by KTV nor there is any evidence that he had ever met Shahid
Balwa, Vinod Goenka, Asif Balwa or Rajiv Aggarwal. Learned counsel
submits that respondent No.16 dealt only with CFPL which is also the
entertainment industry. Learned counsel submits that prosecution
miserably failed to prove any allegations pertaining to the alleged close
association between Sharad Kumar and Sh. Raja and even they could
not prove that they knew each other. Learned counsel submits that as
per the evidence on the record, the role of respondent No.16 in KTV
was to look after the technical matters and even did not have the
cheque signing authority. In this regard, the reliance has been placed
upon the testimony of PW-107 recorded on 15.03.2013. Learned
counsel submits that there is no material that respondent No.16 would
know the ultimate source of money being received by KTV or in fact, it
was bribe.
200. Learned counsel also argued in detail regarding the “Dubious” nature
of the transaction and submitted that in this regard the testimony of
PW-116 is material on the basis of which, this theory has been rejected.
Learned counsel submitted that the prosecution witnesses themselves
deposed contrary to the prosecution case and the prosecution did not
declare them hostile. Therefore, the defense is entitled to rely on the
same. Reliance has been placed upon Javed Masood v State of

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Rajasthan 144 , Mukhtiar Ahmed Ansari v State 145 and Raja Ram v
State146.
201. Learned counsel submits that the KTV took all the necessary steps that
it was required to take under the SSA. Learned counsel submits that
there is an un-assailed testimony regarding the legitimacy of the
transaction between Cineyug and KTV. Learned counsel submits that it
was initially informed by the KTC that the SSA share subscription was
not available as was misplaced and the office was shifted and the
photocopy of the same has not been disputed and PW-116 and 107 duly
confirmed that it was signed in front of them. Learned counsel
submitted that PW-116 specifically stated that the SSA need not be
stamped. Learned counsel submits that the transaction fell through as
the entire equity of KTV was valued at more than Rs.800 crores.
202. Further reliance has also been placed upon State v. Nalini & Ors147.
Submissions of Respondent No. 17/ Kanimozhi Karunanithi
203. Ms. Rebecca John, learned senior counsel for respondent No. 17
submitted that the Appellate court shall not normally interfere with the
findings recorded by the Ld. Trial Court unless it is perverse or illegal
on the very face of it. In regard to the double presumption of
innocence, learned counsel has relied upon Chandrappa & Ors. vs.
State of Karnataka (supra) and Jafarudheen vs. State of Kerala148.
204. Learned senior counsel submitted that CBI has alleged that there was a
conspiracy between the accused public servants A. Raja, Siddhartha

144
(2010) 3 SCC 538
145
(2005) 5 SCC 258
146
(2005) 5 SCC 272
147
(1999) 5 SCC 253
148
(2022) 8 SCC 440

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Behura, and R.K. Chandolia (A-1 to A-3) and private persons Shahid
Balwa and Vinod Goenka (A-4 and A-5) to grant UAS license and 2G
spectrum to Swan Telecom Pvt Ltd (A-6), and in lieu thereof, illegal
gratification of Rs. 200 crore was paid to the company Kalaignar TV
Pvt Ltd (“KTV”) (not accused), in which R-17 was only a minority
shareholder.
205. The allegation of the prosecution is that there was a close nexus
between A. Raja (R-1) and Ms. Kanimozhi (R-17) as Respondent no.
17 was a regular visitor to the residence of R-1. Learned counsel
submitted that Respondent No. 17 was made an accused only in the
supplementary charge sheet. It has further been submitted that
respondent No. 17 was a minority shareholder with 20% of the shares
in KTV, and was the director of KTV only for 14 days during its
formation, i.e., from 06.06.2007 to 20.06.2007. Learned senior counsel
submitted that in the minutes of the meeting dated 20.06.2007 where in
it was recorded that the resignation of Respondent no. 17 was taken on
record. It has been submitted that during the 14-day tenure of
Respondent no. 17 as a director, she attended only three board meetings
in which only formal decisions were taken. Learned counsel submitted
that in the third meeting, the resignation of R-17 was accepted.
206. Learned counsel submitted that the period of offense/conspiracy began
on 20.09.2007 i.e., after the resignation of Respondent no. 17. Learned
senior counsel submitted that the board meeting for the raising of the
alleged loan of 200 took place on 13.02.2009 which was after more
than one and half years of the resignation of Respondent no. 17. This
meeting was attended by Mrs. Dayalu Karunanidhi (PW 152) who was

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the majority shareholder and Mr. Sharad Kumar i.e., Respondent no.
16. Learned senior counsel submitted that inflow and outflow of money
to KTV as per the case of the prosecution is between 23.12.2008 to
07.08.2009 and 24.12.2010 to 03.02.2011. These transactions were
after more than one and half years and three and half years respectively
after the resignation of Respondent No. 17 from KTV.
207. Learned counsel submitted that there is no material on record to show
that Respondent no. 17 who was only a 20% minority shareholder was
a beneficiary from the aforesaid transactions. It has further been
submitted that Respondent No. 17 did not have any role in the day-to-
day affairs of the company and did not attend any meetings of KTV
after her resignation, nor she had any powers or authority in the
management/administration of KTV. It has further been submitted that
neither the major shareholder nor the KTV company has been made an
accused.
208. Learned senior counsel submitted that in paragraph 1688 of the
impugned order the Ld. Trial Court has negated the case of the
Prosecution. It has been submitted that in appeal there are no averments
to demonstrate that how these findings are erroneous. Learned counsel
submitted that the evidence of PW 107 P. Amirtham, CFO of KTV
recorded on 15.03.2013 has duly been taken on record. Learned
counsel submitted that in regard to the familiarity between Respondent
No. 17 with Respondent No. 1, the Ld. Trial Court in paragraph 1709
has aptly stated that the circumstances produced by the prosecution do
not make them conspirators.

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209. Learned senior counsel submitted that there is no direct or
circumstantial evidence to trace the transfer of money to R-1. Learned
senior counsel submitted that the material on the record showed that
Respondent No.17 was not a Director of the company at the time of the
alleged conspiracy, nor was she in any way connected to the impugned
loan transaction in as much as she had resigned from the board and was
not part of any meeting ratifying the loan transaction. Learned senior
counsel submitted that respondent No. 17 was in no way in charge of
and responsible for the management of KTV.
210. Learned senior counsel submitted that simply factum of a meeting
between R-17 and R-1 cannot lead to inference of any criminality.
211. Learned counsel has also relied upon (i) the Form 32 of Kalaignar Tv
Private Limited along with a resignation letter of Ms. Kanimozhi
Karunanidhi dated 20.06.2007 (Ex PW 152/DB-2); (ii) The minutes of
meeting dated 06.06.2007 of Kalaignar Tv Private Limited (Ex. PW
107/DA (D 742)); (iii) The minutes of meeting dated 12.06.2007 of
Kalaignar Tv Private Limited (Ex. PW 107/A1 (D 742)); (iv) The
minutes of meeting dated 20.06.2007 of Kalaignar Tv Private Limited
(Ex. PW 107/A-2 (D 742)); (v) The minutes of meeting dated
13.02.2009 of Kalaignar Tv Private Limited (Ex. PW 107/A-16 (D
742)); (vi) Evidence of PW 107, P. Amirtham, dated 15.03.2013; (vii)
Evidence of PW 116, Sh. G. Rajendran dated 03.05.2013
212. Learned senior counsel has placed reliance on the following judgments
to buttress her arguments: (i) Harshendra Kumar D. v. Rebatilata

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Koley 149 ; (ii) M.A.A. Annamalai v. State of Karnataka 150 ; (iii)
Subramanian Swamy v. A. Raja151; (iv) Sunil Bharti Mittal v. CBI152;
(v) Amratlal Vrajlal Rajguru v Umeshbhai Jashvantlal Maheta 153 ;
(vi) RLF Ltd v State (NCT Delhi)154; (vii) Sharad Kumar Sanghi vs.
Sangita Rana155.
213. Ms.Rebecca John, learned senior counsel for respondent no 17. has
relied upon Harshendra Kumar D. vs. Rebatilata Koley 156 and has
submitted that it was inter alia held that a Director whose resignation
has been accepted by the company and duly been notified to the
Registrar of Companies cannot be made accountable and fastened with
the liability for anything done by the company after the acceptance of
his resignation. Learned senior counsel submitted that in the present
case also, R-17 had already resigned at the time of the offence. Learned
senior counsel has further submitted that in the present case it was also
held that criminal prosecution is a serious matter as it affects the liberty
of a person and no greater damage can be done to the reputation to a
person than dragging him in a criminal case. Learned senior counsel
has submitted that R-17 has been proved to be innocent and therefore
the present leave to appeal should not be granted.
214. Learned senior counsel has further relied upon M.A.A. Annamalai vs.
State of Karnataka157 and submitted that in the present case, there is no

149
(2011) 3 SCC 351
150
(2010) 8 SCC 524
151
(2012) 9 SCC 257
152
(2015) 4 SCC 609
153
Cri. Misc. Application No. 16805/2019
154
Crl. LP 85/2017
155
(2015) 12 SCC 781
156
(2011) 3 SCC 351
157
(2010) 8 SCC 524

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allegation and material to show that respondent no.17 was the in-charge
of and was responsible for the conduct of the company‟s business
which had given rise to the offence. Learned counsel has further relied
upon Subramanian Swamy vs. A.Raja158 which was a case arising out
of the present case wherein it was inter alia held that criminal
conspiracy cannot be inferred on the mere fact that there were officials‟
discussion between the officers of MoF and that of DoT and between
two Ministers. Learned senior counsel submitted that merely because
R-17 and R-1 used to meet, there cannot be any criminal inference.
Learned counsel has further relied upon Sunil Bharti Mittal vs. CBI159
wherein it was held that an individual, who has perpetrated the
commission of an offence on behalf of a company, can be made an
accused along with the company if there is sufficient evidence of his
active role coupled with the criminal intent.
215. Learned senior counsel has further submitted that in this case it was
inter alia held that the second situation in which he can be implicated in
those cases where the statutory regime itself attracts the Doctrine of
Vicarious Liability specifically and corroborating such a provision.
Learned senior counsel has submitted that in the present cases both the
conditions are not fulfilled. Learned senior counsel has further relied
upon the judgment of Sharad Kumar Sanghi (supra) wherein it was
submitted that since the company has not made him as a party and the
allegations against R-17 are vague in nature, the learned trial court has
reached to correct conclusion.

158
(2012) 9 SCC 257
159
(2015) 4 SCC 609

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216. The parties have also filed detailed written submissions after advancing
detailed arguments at the bar. The same have also been considered by
this court.
IV. Rejoinder Submissions
217. Sh. Sanjay Jain Ld. Senior Counsel on behalf of the CBI that the
judgment of the Ld. Trial Court is perverse and has been delivered with
a conscious and pre-disposed intent - that the case of the prosecution
would be disbelieved irrespective of the weight of the evidence that too
in a matter where the investigation and prosecution was conducted
under the supervision of the Hon'ble Supreme Court which had
eventually cancelled all the 122 licenses that were later auctioned by
the Government for total revenue of Rs.53,000 Crores.
218. It has been submitted that one of the main reasons for the Ld. Trial
Court to disregard the investigation and evidence was that the
statements under Section 161 of the Cr.PC were recorded a week prior
to filing of the chargesheet. It is submitted that the same did not call for
any general skepticism from the Ld. Trial Court as the same was a
Supreme Court monitored trial. It has been submitted that the Ld. Trial
Court did not consider that a case of criminal conspiracy can be
evaluated only through circumstantial evidence and in such
circumstances the time gap between recording of statements and filing
of chargesheet was immaterial. It is submitted that such approach of the
Ld. Trial Court in disregarding the oral and documentary evidence was
perverse and gives rise to an arguable case in appeal.
219. Sh. Sanjay Jain Ld. Senior Counsel submitted that the attempt of the
prosecution to prove a fact by oral evidence was disregarded by the Ld.

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Trial Court on the ground that it was not corroborated by any document
in writing and the attempt of the prosecution to prove a fact by
documentary evidence stood discarded on the ground that there was no
oral evidence to support the document. In support of this submission,
reliance has been placed on Paras 355, 1286, 382-383, 386, 395, 418,
420, 923, 958 and 1562 of the judgment of the Ld. Trial Court. It has
been submitted that the Ld. Trial Court wrongly relied on the judgment
in the case of Dudhnath Pandey vs. State of U.P.160 to give greater
weightage to the defence evidence which was not the ratio laid down in
the said judgment.
220. It has been submitted by Sh. Sanjay Jain Ld. Senior Counsel that the
observations of the Ld. Trial Court in the abovementioned paragraphs
of the judgment reveals that the Ld. Trial Court was determined not to
accept the case of the prosecution and such an approach of the Ld. Trial
Court, in an adversarial legal system, was inherently perverse. It has
been submitted that the weightage accorded to the evidence of the
witnesses was biased which was evident from the beginning of the
judgment even before the Ld. Trial Court marshalled the evidence. It
has been submitted that the evidence and statements of DW-1 (A Raja),
DW-22 RK Chandolia), PW-2 (AN Sethuraman) and PW-71 (Ashok
Wadhwa) were treated by the Ld. Trial Court as the gospel truth
whereas the witnesses supporting the case of the prosecution were
disbelieved, berated and criticized. Reference is made to statements of
PW-7 (Aseervatham Achary), PW-60 (AK Srivastava), PW-11
(Nripendra Mishra) and PW-102 (GE Vahanwathi).
160
1981 Crl.J 618

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221. Sh. Sanjay Jain Ld. Senior Counsel has sought leave to refer to the
aide-memoire during the opening submissions. Ld. Senior Counsel
submitted that the Aide-Memoire was only to assist the Court regarding
the statements recorded and summary of the view of the Ld. Trial Court
as well as comments of the prosecution but the prosecution has not
claimed that out of the entire judgment of the Ld. Trial Court, whatever
was not included in the aide-memoire, was not intended to be relied
upon or stood excluded. It is submitted that the Aide-Memoire had
been placed before the Court to give a snap shot on each of the five
points to enable the Court to have a bird's eye view of the arguable
points to consider whether a prima facie case had been made out for
grant of leave of appeal as held by the Supreme Court in the case of
Sujoy Mangesh Poyarekar (Supra).
222. The Ld. Sr. Counsel has submitted handouts on each of the points
argued in the opening submissions highlighting from the text of the
judgment the perversity in the same which runs across the entire
judgment establishing that it is a fit case for grant of leave. Ld Sr.
Counsel has filed a written synopsis of Rejoinder Submissions with
three handouts. Handout-1 contains extracts from the judgment of the
Ld. Trial Court to highlight its perversity on five aspects:-
• Association/Familiarity between the accused (Govt. Official)
and Telecom License Applicants - M/s Swan Telecom (DB
Group) and M/s Unitech Wireless (Unitech Group)
• Fixation of cut-off date by officials to convey undue benefit to
M/s
Unitech Wireless (Unitech Group).

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• Violation of 'First Come First Served Policy' & Distribution
of LOIs by setting up four counters.
• Non-Revision of entry Fee
• Money -trail
223. Handout-2 which has been submitted is a chart containing summary of
all judgments relied upon by the respondents and by the CBI. Handout-
3 pertains to the individual roles of the accused persons and the
evidence led by the prosecution to prove the same.
224. Ld. Sr. Counsel for the CBI has also submitted a brief note on the "First
Come First Served Policy". In the same reliance is placed upon the
deposition of PW-110 Sh. Nitin Jain, Director AS-I on the First Come
First Serve Policy for grant of UAS Licenses prevailing prior to
10.01.2008 and Press Release dated 10.01.2008 Ex.PW60/L-30
pertaining to change of First Come First Serve Policy from the date of
application to the time of compliance. Reliance is also placed on Ex.
PW52/A recorded by PW-88 Sh. R.K. Gupta and deposition of PW-60.
225. It has been submitted that the scheme of distribution of LoIs
simultaneously through four counters was not in consonance with the
principle of First Come First Serve Policy. The manner of distribution
of LoIs resulted in disorderly manner of priority of applicants for
signing license agreement and completely changed the priority to
benefit STPL which got first priority in Delhi where spectrum for only
one licensee was available and Unitech Wireless Group got priority in
circles where sufficient spectrum was not available to accommodate the
last applicant.

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226. It has been submitted that distribution of LoIs through four counters
altered the First Come First Serve Policy in the following manner:-
• LOIs were distributed on 10.01.2008 from 3.30 PM onwards
which took half an hour and compliance was made by STPL
with priority at no.5, at 4.10 PM for Mumbai Circle and 4.11
PM for Delhi Circle. Unitech with original priority no. 12
completed compliances on the same day before M/s TATA
whose original priority was at no.2.
• As per deposition of PW-103 Kaushal Nagpal Unitech
Limited bank drafts were prepared in October 2007 months
prior to distribution of LOIs on 10.01.2008 much before any
decision was taken by A-1 on non-revision of entry fee rates
i.e. 04.12.2007.
V. Analysis & Findings
227. The present leave to appeal has been filed seeking grant of leave to
challenge the order passed by Ld. Special Judge in FIR No.
RC.DAL2009.A.0045. FIR was lodged pursuant to the directions of the
Apex in Centre for Public Interest Litigation v. Union of India161.
After the investigation the charge-sheets were filed. The trial was
conducted on day-to-day basis and after trial Ld. Special Judge passed
the impugned judgment acquitting all the accused persons.
228. Generally, the right to first appeal is a matter of right However in the
case of acquittal this right has been curtailed by the legislation and
judicial precedents so as to ensure that once an acquittal has been

161
(2011) 1 SCC 560

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recorded after the trial, such findings should not be disturbed
ordinarily.
229. Section 417 of the un-amended Cr.P.C. conferred the power on the
State Governments to present an appeal to the High Court from the
ordinary or appellate order passed by any court other than High Court.
230. It was considered that provision for appeal against acquittal in
appropriate cases may be necessary to avoid a miscarriage of justice.
However, as per the 48th report of the Law Commission 162it was fully
convinced that generally it is not desirable to encourage such appeals.
It is pertinent to mention here that Section 417 Sub Section (3)
permitted private complainant in a case instituted on a complaint to
appeal against acquittal, only after obtaining special leave from the
High Court. The Law Commission considered whether that general and
unlimited right conferred on the government to file such appeals
deserves to be retained. It was noted that in most common law
countries the general rule is not to allow an appeal against acquittal,
only a limited right of appeal against acquittal has been given in
England in respect of appellate judgment of acquittal. It was brought to
the notice of the commission that the right to further appeal in these
cases is important for the General Administration and Development of
Criminal Law.
231. The Law Commission noted that unlimited and general right given in
the un-amended Cr.P.C. i.e., Cr.P.C., 1898 required re-examination.
The view was expressed that proper regard should be there to the need
for putting reasonable limits on the period for which the anxiety and
162
Referred from the 48th Law Commission Report.

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tension of a criminal prosecution should be allowed to torment the
mind of the accused. The Law Commission was of the view that if a
competent court manned by trained judicial officer has held a person to
be innocent, the matter should ordinarily end there. It was
recommended that appeal against acquittal under Section 417 even on
the instance of the Central Government or State Government should be
allowed only if the High Court grants special leave.
232. Pursuant to this report, the joint committee gave its report to
consolidate and amend the law relating to criminal procedure. The joint
committee to which the bill to consolidate and amend the law relating
to criminal procedure presented the report of the committee with the
bill as amended by the committee. In the report, the following
recommendations were made:
“Clause 378 (original clause 388)
The Committee was given to understand that in some cases
this executive power to file appeals against an order of
acquittal was exercised somewhat arbitrarily. It would
therefore be desirable and expedient to provide for a check
against arbitrary action in this regard. The Committee has
therefore provided that an appeal against an order of
acquittal should be entertained by the High Court only if it
grants leave to the State Government in this behalf.
Sub-clause (4) prescribes a period of limitation of 60 days
for an appeal against an order of acquittal at the instance of
a complainant. In quite a few cases prosecutions are
launched by means of complaints by public servants, such as
prosecutions for offences under some special laws such as
the law relating to Foreign Exchange, smuggling etc. In such
cases, the administrative procedure for taking a decision in
the matter takes quite a long time and in some cases such
procedure is not completed before the prescribed period of

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limitation of 60 days. In consequence there might be
miscarriage of justice.
Most of these special laws require to be enforced strictly with
a view to put a stop to various types of anti-social activities
and if wrong acquittals are not appealed against, there will
be an adverse effect on the enforcement of such laws. The
Committee therefore has considered it desirable to extend the
period of limitation to 6 months whenever the complainant is
a public servant and necessary amendment has been made
for the purpose.”

233. Bare perusal of the recommendations make it clear that legislative


intent behind leave to appeal by High Court was to check arbitrary
action in this regard by the prosecution in filing appeals. It was also
noted that, if wrong acquittals are not appealed against, there will be an
adverse impact. It is also pertinent to mention that legislature in its
wisdom has not put any condition for the High Court to grant or refuse
leave to appeal. Possibly, it was considered that High Court is expected
to record objective satisfaction before reaching to any conclusion in
this regard.
234. Pursuant to this we stand at the position where we are, that in the case
of the acquittal no appeal to the High Court shall be entertained except
with the leave of the High Court. The long arguments have been made
at the bar on behalf of the respondents regarding the scope of
jurisdiction to be exercised at the stage of considering the application
for grant of leave to appeal. Most of the judgment which have been
cited at bar by the able learned counsels for the respondents are on the
point of jurisdiction of the court of the appellate court while
considering the judgment of acquittal. No doubt numerous judgments

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have also been placed where this court and the Apex Court have made
certain observations regarding the points to be considered at the time of
entertaining an application for leave to appeal which can be culled out
as under:
a. The order of granting / refusing the leave to appeal should not
be a cryptic order.
b. There must be strong and compelling reasons for grant of leave
to appeal.
c. The High Court must examine whether a prima facie case has
been made out or arguable points have been raised.
d. The High Court must consider relevant material, sworn
testimony of prosecution witnesses. High Court must apply its
mind and record reasons [may be in brief] in support of this
view.
e. The High Court must examine the material on record to see
whether prima facie it requires deeper scrutiny and re-
appreciation/review of reconsideration of evidence.
235. However, there are also certain negative covenants which can be culled
out are:
a. The jurisdiction at this stage is not to examine whether the
order of acquittal would or would not be set aside.
b. The High Court would not enter into minute detail of the
prosecution evidence.
236. Thus, at the outset this court is absolutely clear in its mind that the
grant/refusal of „leave‟ as provided under Section 378 Sub Section 3
CrPC, 1973 is not a mechanical exercise or has to be granted at the

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mere asking. The High Court must apply its judicial mind before
grant/refusal of such leave. The court is fully conscious of the fact that
presumption of innocence which exists in favour of the accused at the
beginning of the trial strengthens with the order of acquittal in its
favour. The court is also fully conscious of the fact that leave cannot be
granted merely because the High Court considers that an alternative
view could have been taken by it.
237. However, at the same time, the court is firm in its belief that at this
stage no adjective such as „perverse‟, „palpable wrong‟, „illegal‟,
„infirm‟ or any of such adjective can be labelled with the order of the
impugned judgment. The court is firmly of the view that at this stage
the High Court is required to go through the material carefully and on
the basis of examination of such material which includes the sworn
testimonies, documents and other material on record so as to assess that
whether the matter requires deeper scrutiny, re-appreciation, review or
reconsideration of evidence.
238. Before proceeding further it is also pertinent to mention here that the
present case is a case of a very different nature where the criminal
proceeding were initiated on the basis of the direction of the Apex
Court. The Apex Court monitored the investigation. It is not an
ordinary criminal offence.
239. The present case is a case pertaining to economic offence and it has
been held time and again that economic offence constitute a separate

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class and required to be handled with a different approach. In Y.S.
Jaganmohan Reddy vs. CBI163, the apex court inter-alia held as under:
“34. Economic offences constitute a class apart and need to be visited
with a different approach in the matter of bail. The economic offence
having deep rooted conspiracies and involving huge loss of public funds
needs to be viewed seriously and considered as grave offences affecting
the economy of the country as a whole and thereby posing serious threat
to the financial health of the country.”

240. Further in Nimmagadda Prasad vs. CBI 164 it was inter-alia held as
under:
“23. Unfortunately, in the last few years, the country has been seeing an
alarming rise in white-collar crimes, which has affected the fiber of the
country‟s economic structure. Incontrovertibly, economic offences have
serious repercussions on the development of the country as a whole. In State
of Gujarat vs. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC 364 this
Court, while considering a request of the prosecution for adducing additional
evidence, inter alia, observed as under:-
“5.....The entire Community is aggrieved if the economic
offenders who ruin the economy of the State are not brought to
book. A murder may be committed in the heat of moment upon
passions being aroused. An economic offence is committed
with cool calculation and deliberate design with an eye on
personal profit regardless of the consequence to the
Community. A disregard for the interest of the Community can
be manifested only at the cost of forfeiting the trust and faith
of the Community in the system to administer justice in an
even handed manner without fear of criticism from the
quarters which view white collar crimes with a permissive eye
unmindful of the damage done to the national economy and
national interest….”
24. While granting bail, the court has to keep in mind the nature of
accusations, the nature of evidence in support thereof, the severity of the
punishment which conviction will entail, the character of the accused,
circumstances which are peculiar to the accused, reasonable possibility
of securing the presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with, the larger interests
of the public/State and other similar considerations. It has also to be kept
in mind that for the purpose of granting bail, the Legislature has used the

163
(2013) 7 SCC 439
164
(2013) 7 SCC 466

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words "reasonable grounds for believing" instead of "the evidence"
which means the Court dealing with the grant of bail can only satisfy it
as to whether there is a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence in support of
the charge. It is not expected, at this stage, to have the evidence
establishing the guilt of the accused beyond reasonable doubt.
25. Economic offences constitute a class apart and need to be visited with
a different approach in the matter of bail. The economic offence having
deep rooted conspiracies and involving huge loss of public funds needs to
be viewed seriously and considered as grave offences affecting the
economy of the country as a whole and thereby posing serious threat to
the financial health of the country.”

241. Though this court is not dealing with the bail application, the
judgments have only been referred to emphasis the point that the
present case stands on a different footing and is therefore required to be
handled with little more sensitivity.
242. The Court is fully conscious of the fact that rules of appreciation of
evidence and trial remains the same in all cases, be it an economic
offence or other offences. However, the courts cannot have a static
approach and must have dynamic approach in consonance with the
facts alleged in a particular case. The present case is not an ordinary
case of murder, dacoity, rape, theft or fraud. It was case where the
allegations were extremely serious in nature. Thus the appreciation of
the evidence and handling of such case has to be done in a very
different manner.
243. Learned counsel for the respondents rendered very valuable assistance
to the court and put hard labour in reading out all the relevant
paragraphs of the judgment as well the sworn testimonies of the
prosecution witnesses. This gave an opportunity to the court to go
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under Section 313 Cr.P.C. of the accused persons and the testimony of
the defence witnesses in detail along with documents/material on
records. This actually helped the court in making deeper and close
examination and scrutiny of the entire material on record.
244. Learned senior PP for CBI has also very ably took the court through the
various paragraphs of the impugned judgment and the sworn
testimonies to emphasize that leave to appeal must be granted for
deeper examination, re-appreciation and review of the evidence.
However, this Court is exercising its complete restrain in discussing in
detail the evidence of the prosecution witnesses and the defence
witnesses so as not to cause prejudice to either of the parties. The re-
appreciation, reappraisal and review of the evidence is the job to be
undertaken at the time of hearing the appeal on merits.
245. This court while exercising its jurisdiction was always clear in mind
that its jurisdiction confined to the extent that whether there is material
on record, which requires that leave to appeal should be granted. The
court had to satisfy itself completely that whether the presumption of
innocence which has strengthened in favour of the respondents should
be disturbed at all. Ld. Trial Court in its judgment has predominantly
disbelieved the prosecution witnesses and in particular PW 60 and PW
7, who were main star witnesses of the prosecution besides same other
witnesses and believed the defence witnesses. The point to be
considered is that whether such appreciation was in consonance with
law and in consonance with the facts of the present case.
246. Chapter XXIX of the Cr.P.C. pertains to the appeal. The relevant
provision Section 374 confers jurisdiction to file an appeal against the

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order of conviction. Such right of appeal has been taken away where
the accused has been pleaded guilty, where the conviction has been
recorded on the plea of guilt or and in the petty cases. Section 378 deals
with appeal in the case of the acquittal. Section 378 subsection (3)
provides that no appeal filed under Section 378 shall be entertained
except with the leave of the High Court.
247. Section 386 Cr.P.C. defines the power of the Appellate Court. Section
391 Cr.P.C. empowers the appellate court to take further evidence or
direct it to be taken if it thinks additional evidence to be necessary.
Thus, at the stage of grant of leave to appeal if the leave is rejected the
window is closed and it cannot be heard further. However, if the leave
is granted then there are certain provisions in the Cr.P.C. which
empowers the High Court including the power to take additional
evidence also. In the criminal trial the duty of the court is not confined
of merely of taking the evidence and on the basis of that deciding a
case. The trial can never be considered as a battle of wits. The courts
have always been under a bound duty to impart justice. In every
criminal trial there is a quest for ultimate justice.
248. In this regard recording of evidence is a very important function of the
trial court. The police conducts the investigation and collects evidence
as prescribed under Chapter XII and after investigation it culminates
into the filing of report under Section 173 Cr.P.C. The function of the
trial Court starts thereafter. After framing of the charge, the duty of the
court begins for the recording of the evidence or gathering of such
material. Chapter XXIII of the Cr.P.C. deals with the „Evidence in
Inquires and trials‟. In this regard, section 165 of the Indian Evidence

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Act is also very important which confers the power on judge to put
question and order production.
249. The importance of the provision under Section 165 Indian Evidence
Act, 1872 has been highlighted by the Apex Court in Zahira Habibulla
H. Sheikh & Anr. vs. State of Gujrat & Ors.165 wherein it was inter-
alia held as under:
"43. The courts have to take a participatory role in a trial. They
are not expected to be tape recorders to record whatever is
being stated by the witnesses. Section 311 of the Code and
Section 165 of the Evidence Act confer vast and wide powers
on presiding officers of court to elicit all necessary materials
by playing an active role in the evidence-collecting process.
They have to monitor the proceedings in aid of justice in a
manner that something, which is not relevant, is not
unnecessarily brought into record. Even if the prosecutor is
remiss in some ways, it can control the proceedings effectively
so that the ultimate objective i.e. truth is arrived at. This
becomes more necessary where the court has reasons to believe
that the prosecuting agency or the prosecutor is not acting in
the requisite manner. The court cannot afford to be wishfully or
pretend to be blissfully ignorant or oblivious to such serious
pitfalls or dereliction of duty on the part of the prosecuting
agency. The prosecutor who does not act fairly and acts more
like a counsel for the defence is a liability to the fair judicial
system, and courts could not also play into the hands of such
prosecuting agency showing indifference or adopting an
attitude of total aloofness.
44. The power of the court under Section 165 of the Evidence
Act is in a way complementary to its power under Section 311
of the Code. The section consists of two parts i.e. : (i) giving a
discretion to the court to examine the witness at any stage, and
(ii) the mandatory portion which compels the court to examine
a witness if his evidence appears to be essential to the just
decision of the court. Though the discretion given to the court
165
(2004) 4 SCC 158

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is very wide, the very width requires a corresponding caution.
In Mohanlal v. Union of India [1991 Supp (1) SCC 271 : 1991
SCC (Cri) 595] this Court has observed, while considering the
scope and ambit of Section 311, that the very usage of the
words such as, “any court”, “at any stage”, or “any enquiry or
trial or other proceedings”, “any person” and “any such
person” clearly spells out that the section has expressed in the
widest-possible terms and do not limit the discretion of the
court in any way. However, as noted above, the very width
requires a corresponding caution that the discretionary powers
should be invoked as the exigencies of justice require and
exercised judicially with circumspection and consistently with
the provisions of the Code. The second part of the section does
not allow any discretion but obligates and binds the court to
take necessary steps if the fresh evidence to be obtained is
essential to the just decision of the case, “essential” to an
active and alert mind and not to one which is bent to abandon
or abdicate. Object of the section is to enable the court to
arrive at the truth irrespective of the fact that the prosecution
or the defence has failed to produce some evidence which is
necessary for a just and proper disposal of the case. The power
is exercised and the evidence is examined neither to help the
prosecution nor the defence, if the court feels that there is
necessity to act in terms of Section 311 but only to subserve the
cause of justice and public interest. It is done with an object of
getting the evidence in aid of a just decision and to uphold the
truth.”

250. In the present case, the learned counsels for the respondents have time
and again stated that though the prosecution witnesses did not support
the case of the prosecution but the prosecution did not put any question
or declared them hostile. It was argued that many of the points
remained unexplained. The question before this court is that whether by
refusing leave to appeal such ambiguity should be buried without an
opportunity to the State for giving an explanation for such. It may not

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be taken as giving an opportunity to the CBI to plug its loopholes. The
duty of this court is to ensure that Justice is not denied to anyone
including the State on mere hyper- technicalities. The society has an
expectation from the judicial dispensation system. Such faith or
expectation cannot be permitted to be diluted by resorting to technical
or unrealistic approach.
251. It is to be born in mind that the state is the custodian of the right of
each and every citizen of India. In cases particularly of the economic
offences where though on the face of it, the loss is not to a private
individual but it trickles down to lakhs and lakhs of innocent people of
the country. If there has been an un-merited acquittal the scrutiny by
the Appellate Court is the only available method to bring in correction
wherever required. The appellate scrutiny cannot begin without the
threshold of leave being granted.
252. I consider that rather it is necessary and in the interest of the justice
also that in such a matter, the leave to appeal should be granted, if there
exists valid reasons.
253. In the criminal trial, the fairness demands that accused as well as the
prosecution has to fairly dealt with. This concept has the familiar
triangulation, which includes the interests of the accused, the victim
and the society. The society/community is represented by the State and
Prosecuting Agencies and, therefore the interest of the society cannot
be ignored as “persona non grata.” It has also been held time and again
that a Trial Judge cannot be a mere spectator and a machine for
recording the evidence. The Trial Judge has to be an active participant
in the trial displaying intelligence, active interest and quest to elicit all

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relevant materials necessary for reaching the correct conclusion to find
out the truth and administer justice with fairness and impartiality to the
parties. The ultimate object to as meet out justice, the trial should be a
search for the truth and not bout over the technicalities.
254. In such cases it's not necessary that actually someone has been
benefitted or not. The fact that transaction of Rs.200 crores was
reversed has to be seen holistically. The case of some of the accused
persons cannot be segregated at this stage as the facts are so much
interwoven with each other that it will be difficult to separate at this
stage. It is also pertinent to mention that evidence oral in nature cannot
be discarded out rightly merely because it is not corroborated by any
documentary evidence. The evidence has to be weighed and not
counted.
255. The court during the hearing has also noticed some contradictions in
the judgement itself, which requires deeper examination. The court at
this stage is required to have a prima facie helicopter view. There may
be a possibility that such contradictions are explained by the defence
during the hearing.
256. The court is also of the considered view that in case where leave to
appeal is refused, the court is required to give detailed reasons.
However, in case the leave is to be granted brief reasons may be
recorded to avoid any kind of prejudice. The court is required to reach
on an objective satisfaction that there is a prima facie case which
requires grant of leave to appeal. This proposition is akin to the
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Reference may be made to Kanti Bhadra Shah & Anr. vs State Of
West Bengal166 wherein it was inter-alia held as under:
“8. We wish to point out that if the trial court decides to frame a
charge there is no legal requirement that he should pass an order
specifying the reasons as to why he opts to do so. Framing of charge
itself is prima facie order that the trial judge has formed the opinion,
upon consideration of the police report and other documents and
after hearing both sides, that there is ground for presuming that the
accused has committed the offence concerned.
10. It is pertinent to note that this section required a Magistrate to
record his reasons for discharging the accused but there is no such
requirement if he forms the opinion that there is ground for
presuming that the accused had committed the offence which he is
competent to try. In such a situation he is only required to frame a
charge in writing against the accused.”

257. Though this court is avoiding to make any detailed appreciation of


evidence in this regard. However, just to give a flavour on some of the
aspects in regard to the First Come First Serve policy for grant of UAS
license prevailing prior to 10.01.2008. It specifically came in the
testimony of PW-110 that initially the FCFS policy was that an
applicant who submits his application earlier to another applicant will
receive an LoI first after it is approved and the license would be
granted based on his priority as per the date of receipt of application.
However, in the press release dated 10.01.2008, the condition was
changed to the effect that an application which is received first will be
processed first and thereafter, if found eligible will be granted LoI and
then whosoever complied with the conditions of LoI first will be
granted UAS license. Thus, the FCFS policy was changed from the

166
(2000) (1) SCC 722

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date of application to the date of compliance. It is pertinent to note that
allegedly FCFS policy was changed on 10.01.2008 which is after the
cutoff date of 01.10.2007. It came in the evidence that the novel
method gave way to a possibility where compliance by different
companies had differences of minutes and even seconds which
completely changed the priority to the benefit of STPL which got first
priority in Delhi where spectrum for one license was available and
Unitech Wireless Group of Companies also got priority in circles
where sufficient spectrum was not available to accommodate the last
applicant. This case of prosecution was reproduced by the learned trial
court in Para 915 of the impugned judgment. However, the case of the
prosecution was rejected by the learned trial court in Para 923 saying
that there is absolutely no written record indicating when it was
decided as to when and how LOIs were to be distributed.
258. The arguments of the prosecution that LOI were distributed on
10.01.2008 from 3.30 p.m. onwards and this process took half an hour.
However, thereafter the compliance was completed by STPL i.e. A-6
whose original priority was at Sl. No.5 for Mumbai circle at 4.10 p.m.
and for Delhi circle at 4.11 p.m. It was argued that Unitech i.e. A-8
whose original priority was at Sl. No.12 completed the compliances on
the same day before M/s Tata whose original priority was at Sl. No.2
needs deeper examination.
259. It is pertinent to mention here that the learned trial court in the
impugned judgment rejected the testimony of PW7 only on the ground
that there was no corroborative documentary evidence. Similarly, the
evidence as to the lease deed of R-3 to the associated Hotel was

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rejected merely because there was no corroborative evidence. It is also
pertinent to mention here that in note Ex.PW36/E1 purportedly
recorded by PW60 the cut-off date was changed from 10.10.2007 by
respondent no.1 to 01.10.2007. However, the learned trial court ignored
the same. This is also the consistent argument of the prosecution that
the testimony of prosecution witnesses has been disbelieved, whereas
the testimony of defence witnesses has been admitted as gospel truth
which needs deeper examination. The amendment in the press release
by A-1 by his own handwriting on 07.01.2007 also needs deeper
examination. In regard to the revision of entry fees, the note recorded
by Ms. Manju Wadhwan PW36/B1 on 30.11.2007 has curiously been
totally rejected by the R-1 vide his handwritten note dated 04.12.2007.
The stand taken by Member Finance and R-1 in their respective notes
is absolutely contrary to each other.
260. The Ld. Trial Court in the impugned judgment has rejected the
testimony of PW 7 as recorded in para 355, 356 and 357. The perusal
of these paragraphs indicates that the approach taken by the Ld. Trial
Court regarding the appreciation of this evidence needs deeper
scrutiny. Similarly, the association between R-1 and DB Group via
Green House Promoters and connection between R-3 and DB Group
via Associated Hotel Private Ltd. has been rejected by the Ld. Trial
Court in para 371 and 1286. The reason for rejection of such
testimonies also gives reason for hearing the appeal on merits.
261. It is also interesting to note that in para 383 of the impugned judgment
Ld.Trial Judge noted that R-1 had cited three reasons for his approval
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01.01.2007. However, in para 395 of the impugned judgment, Ld. Trial
Court records that the possibility of PW 60 Sh. A.K. Srivastava himself
suggesting the date of 01.10.2007, cannot be ruled out.
262. In this regard reference can also be made to para 420 of the impugned
judgment wherein the Ld. Trial Court noted the deposition of R-1
where he stated that after discussion in DoT it was believed that time
till 01.10.2007 was fair enough.
263. The case of the CBI is that the Ld. Trial court has rejected the
testimony of PW 60 Sh. A.K. Srivastava on mere surmises and
conjunctures. In respect of testimony of Sh. Nripendra Misra PW 11 to
the effect that revision of entry fees was recommended, Ld. Trial Court
recorded that there was not material on record that anyone understood
this recommendation in this manner.
264. In regard to the revision of fees it is also pertinent to mention para 1633
of the Ld. Trial Court wherein Ld. Trial court reached on its own
conclusion which is as under:
“1633. It may also be noted that from 2003 to 2007, only 51
licences were issued in 22 service areas across the country.
This small number of licences itself is a comment against
non- revision of entry fee. It may be noted that there are 22
service areas for telecom services in the country. It may also
be noted. that a separate telecom licence is required for
each service area. It is also on record that only 51 licences
were issued in all the service areas, that is, roughly two
licences per service area since the introduction of UAS
licence in 2003. If such miniscule number of licences were
issued from 2003 to 2007 at an entry fee, which was
considered to be too low, the enhanced entry fee would have
further reduced the number of licence seekers. This
miniscule number of licences itself indicate that, whatever

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may be the view of a section of people relating to revision of
entry fee, even the then existing entry fee discovered in 2001
was a constraining factor for new entrants. In any case, all
these factors were duly considered by TRAI in its
Recommendations dated 28.08.2007, wherein it did not
recommend revision of entry fee. If it recommended revision
of entry fee, nobody understood it in that sense. There is no
material on record to indicate any insistent assertion or
objective analysis by anyone for the need of revision of
entry fee. It is all general talk. There is no evidence on
record that telecom companies were rolling in or wallowing
into wealth warranting revision of entry fee. Even TRAI
Recommendations dated 27.10.2003 recommended nominal
entry fee only.
Thus there is no material on record indicating that TRAI
had recommended revision of entry fee for 2G spectrum.
There is enough material on record to show that it was the
conscious decision of DoT to not to revise the entry fee.

Accordingly, I do not find any merit in the submission of


prosecution that the revision of entry fee was not resorted to
due to conspiratorial reasons to help the two accused
companies to obtain spectrum at as low a price as was
discovered in 2001. There is no merit in the submission of
prosecution that it amounted to abuse of power by Sh. A.
Raja.”

265. In regard to the offloading of shares by STPL and Unitech the


arguments advanced by Sh. Sanjay Jain, learned Senior Public
Prosecutor was that the expression “offloading” was erroneously used
and it was submitted that in fact the scrutiny of transaction indicates
that ETISALAT had acquired equity by infusion of 3228 crores in
Swan Telecom. Learned senior counsel submitted that it shows that it
was not a case of offloading, but an acquisition of a business entity
(possessing high valued government issued telecom licenses) at a very

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high premium. However, Ld. Trial Court in para 1287, 1289 and 1290
accepted the case of the defence that it was a case of fresh equity which
was not prevented by law or guidelines of DoT.
266. In regard to the transaction of 200 crores the attention has specifically
been invited to para 1670 of the impugned judgment wherein the
criminality regarding the alleged transaction was rejected by the Ld.
Trial Court.
267. It has to be noted that Ld. Trial Judge has repeatedly noted that the
prosecution should have afforded an opportunity to the witness to
explain the statement made by them. This gives rise to the concern that
as to why the Ld. Judge presiding over the trial did not exercise his
jurisdiction under Section 165 IEA to seek any clarity, if there was any
ambiguity or obscurity.
268. Learned senior PP for CBI has invited the attention of the court in
particular to the various patent errors in regard to the appreciation of
evidence which are not being reproduced herein in order to ensure
fairness to the respondents during the hearing.
269. I must hasten to add that this court is expressing these concerns only to
take a prima facie view of the matter and nothing in this order to be
construed as final opinion.
270. The court on the basis of material on record, and after going through
the sworn testimonies, material on record, impugned judgement and the
submissions made at bar by both the parties has reached on an
objective satisfaction that there is a prima facie case which requires
deeper examination and re-appreciation/re-appraisal of entire evidence.

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271. In view of the discussion made herein above, arguable points have
been made out by the CBI thereby converting grant of Leave to
Appeal.

DINESH KUMAR SHARMA, J


MARCH 22, 2024
AR/rb/Pallavi
harsh

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