CBI prosecutor in touch with second accused Balwa; CBI cherry-picks from CAG’s list of ineligible applicants

New evidence suggests that the CBI’s 2G prosecution case could be even more severely compromised. Detailed call transcripts of a conversation, allegedly between the CBI’s prosecutor A.K. Singh and the key accused, Unitech Managing Director, Sanjay Chandra, reveal that the prosecutor was additionally in discussion with a second key accused Shahid Balwa of Swan Telecom.

Private TV channel CNN-IBN, which had exclusive access to some parts of the conversation, had telecast the contents on February 12.

An analysis of the Call Transcription in the Preliminary Enquiry (PE) no. 1(A) 13/AC-III/ New Delhi now shows that prosecutor Singh, by his own admission, had been in communication with Mr. Balwa either directly or through a third party. Mr. Singh further cited judgments favouring the accused, obliquely suggesting that these should be used by defence counsel to destroy the prosecution’s case.

An investigative story by The Hindu ‘ >Right under Supreme Court’s nose, conspiracy hatched to destroy 2G case’ published on February 13, 2012, had shown that DoT officials named in the tapes — B.B. Singh, then DDG Licence Fee, and A.K. Srivastav, then DDG Access Services — had a crucial exchange three days before the 2G scam, which was perpetrated on January 7, 2008.

Mr. B.B. Singh had alerted Mr. Srivastav that the paid-up capital required for a pan-India licence was Rs. 138 crore and not Rs. 10 crore. Despite 85 licensees becoming ineligible on this account, Mr. Srivastav processed their applications, enabling them to fraudulently access LoIs and later, spectrum.

These revelations throw up previously unknown acts of omission and commission of individuals in positions of authority — both within and outside the CBI — who have systematically been compromising the CBI case. This evidence additionally calls for a review of some government witnesses/approvers, since the full call transcripts reveal that they may have committed illegal acts, independent of ex-Telecom Minister A. Raja, his Personal Secretary R.K. Chandolia and the then Telecom Secretary S. Behura — so far, the only three accused from the Telecom Ministry.

It now turns out that CBI prosecutor Singh, who admits to being in regular dialogue with Mr. Balwa, was worried that the latter following a different legal strategy could damage his own attempts to help out Mr. Chandra and possibly others as well.

While discussing the case, Mr. Singh allegedly told Mr. Chandra (Hindi to English translation of call transcription): “Balwa is damaging the trial. God give him wisdom. He is preparing a noose around his neck and also damaging others alongside... don’t know… Have explained to him a thousand times…”

Chandra: “He has improved in comparison to the past...”

Singh: “Don’t know what is the problem, can’t fathom. I… don’t know, what he thinks of himself? …a little… has to be told…”

Despite Mr. Chandra’s assurance that Mr. Balwa had improved, Mr. Singh remained unconvinced and sceptical.

There is good reason for Mr. Singh and Mr. Chandra to worry about Mr. Balwa. The 63-page CBI charge sheet, dated April 2, 2011, co-accuses Unitech (Chandra) and Swan (Balwa), under each of the five charges relating to “(A) Investigation about Cut-off date, (B) Investigation into violation of First-Come-First-Served Policy, (C) Dual Technology Approvals and Spectrum Allocation, (D) Eligibility of Companies, and (E) Cheating the Government Exchequer by Non-Revision of Entry Fee.” Most of the charges are identical, though Mr. Chandra is an accused under Section 420 of the IPC, while Mr. Balwa is accused of offences punishable under Sections 420, 468 and 471 of the IPC.

Another part of the call transcript, which has not been aired in its entirety so far, relates to the favourable judgments that Mr. Singh is citing which, according to him, if used after securing the testimony of the government’s star witness, Mr. Srivastav, will not only overrule all other government witnesses but will eventually destroy the case altogether.

(Hindi to English translation of call transcription):

A.K. Singh: “Yes…Srivastav will state that Sir, for DoT, the approval of the shareholders is mandatory before the application…. and that…. its prima facie a company.”

Chandra: “That’s all?”

Singh: “After looking, this is what he will state…”

Chandra: “Rao sahib can get our work done. There is no problem…”

Singh: “Kambuj is a third person. His findings are not binding on DoT. For that, I have a brilliant judgment. Unlikely anyone else has that judgment, which states that the Department that formulates a guideline can interpret it in 10 different ways. Whatever is DoT’s understanding is being testified by their own witness and in future that alone will be sustainable. I dealt with a typical issue… In U.P., let me tell you… even though it’s extremely unfortunate that the entire defence counsel has not been able to cite this judgment. It’s an interesting judgment about petrol pumps of Indian Oil… in which…”

Mr. Singh assures Mr. Chandra, later in the same conversation, that he needn’t worry about Mr. Srivastav’s testimony since on the issue of eligibility, Mr. Srivastav would deliver an unabashed statement to help Mr. Chandra’s case.

The transcription further throws up a new character called “Rao sahib” who Mr. Chandra believes will assist in delivering government witness Srivastav’s testimony to dilute the case against Mr. Chandra.

These revelations, including that Mr. Singh is encouraging the defence lawyers to cite judgments against the prosecution while additionally assuring the accused of a favourable testimony from the prosecution’s star witness, show the extent to which the rot has set in the prosecution’s case, which is being heard daily in a special CBI court.

The last piece of evidence emerging from the Singh-Chandra exchange is on how to get past the eligibility accusation faced by Unitech in which Mr. Chandra feared an adverse testimony by Mr. Kambuj who prepared the RoC report. Investigation by The Hindu shows that Unitech, according to the CAG, had violated eligibility criteria across six different guidelines in each of its 22 applications. Altogether, the CAG pointed to 85 licences being in violation of the eligibility conditions (see chart on Page 1).

The Supreme Court’s order of December 16, 2010, invoking the CAG report, had expressly directed the CBI to investigate how ineligible companies received LoIs/licences, including the role of DoT officials in granting such licences. This was especially significant since out of 232 qualifying applications on the cut-off date of September 25, 2007, 110 were found ineligible by the same officials who allowed 85 faulty applications through the door.

Yet, the CBI charge sheet restricts its observations to Swan and Unitech, while ignoring the eligibility violations by Loop, Alliance, Videocon and S Tel, all of which, according to the CAG, were guilty of accessing spectrum fraudulently. The CBI charge sheet also makes no mention of guilty officials, who have all been converted into witnesses. It is unclear whether the officials who selectively processed ineligible applications did so independently or under directions from Mr. Raja.

This new evidence reveals that despite filing status reports through the CVC and being under the Supreme Court’s supervision, the prosecution’s case has been extensively damaged by the CBI’s weak charge sheets, aided by a team of compromised prosecutors and witnesses.