The Supreme Court on Tuesday made it clear that it was not going to stay the trial in the money laundering case arising out of the 2G scam and posted the plea of accused persons for quashing of charges against them on November 26.
“There will be no stay of the trial,” a bench headed by Chief Justice H L Dattu said at the outset when the counsel for accused persons sought to make submissions.
During the brief hearing, the counsel questioned the framing of charges by the trial court by taking into account the statements recorded by Enforcement Directorate officials under section 50 of Prevention of the Money Laundering Act.
They submitted that statements recorded by the ED under Section 50 were inadmissible in evidence as they are equivalent to statement recorded under Section 161 CrPC, the use of which is prohibited under Section 162 CrPC.
However, the bench, also comprising Justices M B Lokur and A K Sikri, before posting the matter for November 26, said, “Once we say no stay of trial, we cannot say don’t look to a particular part of evidence.”
Senior advocates Kapil Sibal and Harish Salve, appearing for some high-profile accused, clarified that they were not asking for stay of the trial but were not clear whether the appeal against the order of trial court framing charges in the money laundering case would lie in the Delhi High Court or the Supreme Court.
The apex court, which is monitoring the probe in the 2G spectrum scam, had in its earlier order, said that appeal against the special court’s order would not be heard by any other court.
In a batch of petitions, the accused persons have moved the Supreme Court seeking setting aside of a lower court order framing charges against him.
A special court had on October 31 ordered framing of charges under the Prevention of Money Laundering Act (PMLA) against 19 persons, including former telecom minister A Raja, DMK supremo M Karunanidhi’s daughter Kanimozhi and wife Dayalu Ammal and Swan Telecom promotor Shahid Balwa.
It had said there was prima facie evidence that they played roles in “parking” of illegal gratification of Rs 200 crore in Kalaignar TV.
As the Delhi High Court has been restrained by the apex court from entertaining any appeal arising out of trials in the 2G scam cases, Balwa, through his lawyers Shibu Shankar Mishra and Md Shahid Anwar, was the first to move the Supreme Court seeking various reliefs, including grant of interim stay on the trial in the case registered by the ED.
The accused have contended that alleged offences under IPC and Prevention of Corruption Act, committed during 2007-08 and for which he, along with others, is being tried, were not part of scheduled offences mentioned under PMLA till May 31, 2009.
Hence, the penal law cannot be applied with retrospective effect, it said.
“This SLP (special leave petition) shall determine the substantial question of law concerning the fundamental rights of the accused persons, as to whether an act, committed prior to the enactment of the (amended) PMLA, can be made subject matter of a criminal trial, and as to whether the same shall be violative of Article 20 (1) of the Constitution of India, that is, being against the principles of ex-post facto law,” it said.
Besides Raja, Kanimozhi and Balwa, the other accused in the case are Dayalu Ammal, Vinod Goenka, Directors of Kusegaon Fruits and Vegetables Pvt Ltd Asif Balwa and Rajiv Agarwal, Kalaignar TV (KTV) MD Sharad Kumar and its Director P Amirtham and Bollywood producer Karim Morani. They all are out on bail.
Raising the legal question, the petition said, “From the perusal of the ECIR dated 09.03.2010, it can be seen that the same is in respect of offences alleged to have been committed under section 120-B IPC and section 13(2) read with 13(1)(d) of the Prevention of Corruption Act during 2007-08.
“It is submitted that the said ECIR itself could not have been registered, as the offences under section 13 of the PC Act and 120(B) IPC came in the list of scheduled offences under PMLA only on June 1, 2009…There cannot be any retrospective operation of the same as the acts termed as offences have been alleged to have been committed prior to June 1, 2009.”
Besides the individuals, the special court had framed charges against nine firms in the money laundering case.
The accused firms are — Swan Telecom Pvt Ltd (STPL), Kusegaon Realty Pvt Ltd (formerly known as Kusegaon Fruits and Vegetables Pvt Ltd), Cineyug Media and Entertainment Pvt Ltd (formerly known as Cineyug Films Pvt Ltd), Kalaignar TV Pvt Ltd, Dynamix Realty, Eversmile Construction Company Pvt Ltd, Conwood Constructions and Developers (P) Ltd, DB Realty Ltd and Nihar Constructions Pvt Ltd.
The ED, in its charge sheet, had alleged that all the accused were involved in the Rs 200-crore money transaction which was not “bonafide” and “genuine” and it was a “bribe for grant of telecom licences to DB Group companies” by Raja.
