Thursday , August 7 , 2014
National Herald case: Court to hear matter against Sonia, Rahul on Aug28
New Delhi, Aug 7 (PTI): A Delhi court, which had issued summons against Congress President Sonia Gandhi, Rahul Gandhi and others, on Thursday deferred till August 28 hearing in the case filed by Bharatiya Janata Party leader Subramanian Swamy in the matter pertaining to acquisition of National Herald daily.
Metropolitan Magistrate Gomati Manocha postponed the matter after the counsel appearing for Sonia Gandhi and others informed the court that Delhi High Court had on Wednesday stayed the criminal proceedings pending before the trial court till August 13.
Senior advocate Ramesh Gupta, who appeared for Sonia, Rahul and others, told the court that summons have not been served on accused Sam Pitroda as he stays in the USA now.
Swamy requested the court to hand over the summons issued against Pitroda to him so that he could serve it on him.
The court permitted Swamy's contention and fixed the matter for hearing on August 28.
In a reprieve for Sonia, Rahul and others, the high court had Wednesday stayed till August 13 the criminal proceedings before the trial court against them.
”Renotify the matters on August 13. Till that time, the impugned order dated June 26, 2014 of the trial court against the accused shall remain stayed,” Justice V P Vaish had said.
The stay had come as a relief to Sonia, Rahul and others including Congress treasurer Moti Lal Vora, General Secretary Oscar Fernandes, Sam Pitroda and Suman Dubey who were asked to appear before the trial court today.
The Congress leaders have challenged the lower court's summoning orders against them on a complaint of Swamy alleging cheating and misappropriation of funds in the acquisition of the daily by Young Indian(YI).
Pitroda is the only accused who, so far, has not moved the high court as the summons has not been served on him.
The high court has now fixed the matter for further hearing on August 13 when the counsel for Suman Dubey and Swamy will argue their case.
While summoning the six as accused in the case, the trial court had held that Swamy has established a prima facie case of cheating, misappropriation of funds and criminal breach of trust against them. Swamy had accused Sonia and Rahul Gandhi and others of conspiring to cheat and misappropriate funds by paying just Rs 50 lakh by which YI obtained the right to recover Rs 90.25 crore which the Associated Journals Limited had owed to the Congress party.
The accused persons were summoned under sections 403 (dishonest misappropriation of property, 406 (criminal breach of trust) and 420 (cheating) read with section 120B (criminal conspiracy) of the Indian Penal Code.
http://www.telegraphindia.com/1140807/jsp/frontpage/story_18696273.jsp#.U-OjkYBdVB8
Went to Patiala Court and informed that I have not finished arguments and will on 13/8. So summons to all accused re issued for Aug 28 th.
PTs please put out a search for Sam Pitroda. He can contact me through a common friend in TMC. I have to serve him the summons.
Updated on August 7, 2014
New Delhi, Aug 7 (PTI): A Delhi court, which had issued summons against Congress President Sonia Gandhi, Rahul Gandhi and others, on Thursday deferred till August 28 hearing in the case filed by Bharatiya Janata Party leader Subramanian Swamy in the matter pertaining to acquisition of National Herald daily. Metropolitan Magistrate Gomati Manocha postponed the matter after the counsel appearing for Sonia Gandhi and others informed the court that Delhi High Court had on Wednesday stayed the criminal proceedings pending before the trial court till August 13. Senior advocate Ramesh Gupta, who appeared for Sonia, Rahul and others, told the court that summons have not been served on accused Sam Pitroda as he stays in the USA now. Swamy requested the court to hand over the summons issued against Pitroda to him so that he could serve it on him. The court permitted Swamy's contention and fixed the matter for hearing on August 28. In a reprieve for Sonia, Rahul and others, the high court had Wednesday stayed till August 13 the criminal proceedings before the trial court against them. ”Renotify the matters on August 13. Till that time, the impugned order dated June 26, 2014 of the trial court against the accused shall remain stayed,” Justice V P Vaish had said. The stay had come as a relief to Sonia, Rahul and others including Congress treasurer Moti Lal Vora, General Secretary Oscar Fernandes, Sam Pitroda and Suman Dubey who were asked to appear before the trial court today. The Congress leaders have challenged the lower court's summoning orders against them on a complaint of Swamy alleging cheating and misappropriation of funds in the acquisition of the daily by Young Indian(YI). Pitroda is the only accused who, so far, has not moved the high court as the summons has not been served on him. The high court has now fixed the matter for further hearing on August 13 when the counsel for Suman Dubey and Swamy will argue their case. While summoning the six as accused in the case, the trial court had held that Swamy has established a prima facie case of cheating, misappropriation of funds and criminal breach of trust against them. Swamy had accused Sonia and Rahul Gandhi and others of conspiring to cheat and misappropriate funds by paying just Rs 50 lakh by which YI obtained the right to recover Rs 90.25 crore which the Associated Journals Limited had owed to the Congress party. The accused persons were summoned under sections 403 (dishonest misappropriation of property, 406 (criminal breach of trust) and 420 (cheating) read with section 120B (criminal conspiracy) of the Indian Penal Code. |
Subramanian Swamy Published on Aug 5, 2014National Herald Case by M.R. Venkatesh https://www.youtube.com/watch?v=dA5MnanvIzw
National Herald Case by M.R. Venkatesh https://www.youtube.com/watch?v=dA5MnanvIzw
National Herald case: Delhi HC stays criminal proceedings against Sonia Gandhi, Rahul Gandhi
National Herald case: Gandhis excused from appearing in court
NEW DELHI: The Delhi high court on Wednesday has stayed criminal proceedings against Congress president Sonia Gandhi and vice-president Rahul Gandhi till August 13 in the National Herald case.
The Delhi high court had last Friday issued notices to BJP leader Subramanian Swamy and the Delhi government on a plea filed by Sonia Gandhi and her son Rahul.
The petition was filed by Congress president Sonia Gandhi and Rahul Gandhi against the summons issued to them for allegedly cheating and misappropriating funds of a company that published the now defunct National Herald newspaper.
Justice VP Vaish sought response from Swamy and the Delhi government by August 5.
A trial court had on June 26 issued summons to the Gandhis and four others — Congress treasurer Moti Lal Vora, general secretary Oscar Fernandes and Young Indian Private Ltd. (a firm in which the Gandhis have a stake) directors Suman Dubey and Sam Pitroda — asking them to appear before it on August 7.
READ ALSO: National Herald case can end if Congress returns loan, Arun Jaitley says
Vora also approached the high court along with the Gandhis, who each own a 38 per cent stake in the firm, seeking quashing of summons of the trial court and the complaint filed by Bharatiya Janata Party leader Swamy.
Filing the plea, Congress leaders said Swamy is a political opponent and present criminal proceedings have been initiated only with intent to secure an oblique political objective.http://timesofindia.indiatimes.com/india/National-Herald-case-Delhi-HC-stays-criminal-proceedings-against-Sonia-Gandhi-Rahul-Gandhi/articleshow/39756755.cms
IN THE HIGH COURT OF DELHI
AT NEW DELHI
CRIMINAL MISC MAIN CASE NO. 3333 OF 2014
WRITTEN SUBMISSIONS IN REPLY
IN THE MATTER OF:
SMT. SONIA GANDHI… …PETITIONER
VERSUS
DR. SUBRAMANIAN SWAMY… …RESPONDENT
ALONGWITH:
CRIMINAL MISC MAIN CASE NO. 3332 OF 2014
IN THE MATTER OF:
MR. RAHUL GANDHI… …PETITIONER
VERSUS
DR. SUBRAMANIAN SWAMY… …RESPONDENT
ALONGWITH:
CRIMINAL MISC MAIN CASE NO. 3335 OF 2014
IN THE MATTER OF:
MR.MOTILAL VORA AND OTHER… …PETITIONER
VERSUS
STATE AND ANOTHER… …RESPONDENT
ALONGWITH:
CRIMINAL MISC MAIN CASE NO. 3336 OF 2014
IN THE MATTER OF:
MR. SUMAN DUBEY… …PETITIONER
VERSUS
DR. SUBRAMANIAN SWAMY …RESPONDENT
WRITTEN SUBMISSIONS IN REPLY
1. The Respondent-in-person is the Complainant-in-person in Case no. 9/1/13, in the Hon’ble Court of MM-02, Patiala House Courts, New Delhi in which Ms. Sonia Gandhi @ Edvige Antonia Albina Maino and six others are Accused.
2. The Complaint is concerned only with commission of offences enumerated in the Indian Penal Code. Separate proceedings have been undertaken for offences committed under other statutes and laws.
3. In particular, this Respondent’s Complaint under the Income Tax Act against the Congress Party for extending loan to the AJL as violative of the exemption from tax facility has led to a show cause Notice from the Income Tax authorities but the Congress Party has yet to reply to the said Notice. The Complaint filed by this Respondent with the Enforcement Directorate under the Prevention of Money Laundering Act is being inquired into for further action.
4. The Hon’ble Metropolitian Magistrate has issued summons to the Accused persons on the above mentioned case on 26th June 2014 and has asked all the Accused Persons to appear in person on 7th August 2014.
5. Against the said order, the Accused persons have approached this Hon’ble Court in the form of a quashing Petition under Section 482 of the Criminal Procedure Code which is baseless and without any merit, and hence it is prayed that this Hon’ble Court dismisses the same.
THE FACTS
i. In a nutshell [relying largely on the reproduction in the Petition filed herein by Accused Mr. Motilal Vora, of authenticated and now admitted documents which were originally submitted in my Complaint filed before the Ld. Metropolitan Magistrate, Patiala House, New Delhi], an extraordinary event takes place on 26.2.11: A Rs. 5 lakh authorized capital private limited company named Young Indian[YI] incorporated on 23.11.10, acquires in a public limited company named Associated Journals Limited [AJL], incorporated on 20.11.37 [page 122-27 of said Petition] and which is the publisher of three news papers.
ii. It is not a Congress Party owned publication unlike the BJP Today.
iii. AJL had closed down the publications in late 2008 saddled with about Rs 90 crores of debt but owning at least Rs. 2000 crores of immovable property. This Rs. 90 crores debt is largely of unpaid past loans from the Congress Party since 1998. The Income Authorities in 2004 took notice of this [p.272], but action has now been initiated by the Income Tax Authorities against the Congress Party upon receiving a separate Complaint filed by this Respondent. This has not been disclosed in this Hon’ble Court by the Accused/ Petitioners as yet.
iv. The extraordinary event of acquisition of AJL by YI was completed on 26.2.11 by allotment of over 99% of the total equity of AJL to YI, the Rs.5 lakh authorized capital private limited company.
v. On that date, of the seven Accused who are Petitioners herein, two viz., Ms. Sonia Gandhi and her son Mr. Rahul Gandhi together owned and continue to own 76% of the issued shares of YI, and hence for all intents and purposes own now the AJL company and its assets.
vi. The Accused severally or all together colluded and conspired to enable YI, a Rs 5 lakh authorized private limited company to acquire 99.1% of the shares issued by Associated Journals Ltd [AJL] with over Rs 2000 crores of immovable property.
vii. Several of the Directors of Young Indian were also Directors of the AJL. Ms. Sonia Gandhi and Mr. Rahul Gandhi together own 76% of the shares of Young Indian and in equal measure separately. Mr. Motilal Vora and Mr. Oscar Fernandes own the remaining 12% each of the remaining shares.
viii. The modus operandi of effecting this acquisition and change in ownership occurred as follows: First by the Congress Party wiping out the debt liability of AJL by extending an unsecured zero interest loan of Rs 90 crores from its funds to AJL [p. 343] to fully discharge its accumulated debt of about an equivalent amount for a stated purpose of bringing “ the newspaper back to health”.
ix. The principal office bearers of the Congress Party are the same as the principal Directors of both the Young Indian and the AJL. Accused No.3 and Petitioner Mr. Motilal Vora is the Treasurer of the Congress Party, CMD of AJL, and 12% share holding Director of YI.
x. Second, Congress Party whose principal office bearers are the same as the main share holders of AJL and of YI, permitted the Young Indian to own the said loan liability of Rs 90 crores for a consideration of Rs. 50 lakhs, which amount the Young Indian, a Rs.5 lakh authorized capital private limited company, obtained as an unsecured loan from a nationalized bank.
xi. Young Indian was created to protect and preserve the interests of newspapers under AJL in 2010 as per Para 3 (i), (j), (k), (l) and (m) at pages 6-8 of the Petition filed by Accused Ms. Sonia Gandhi
xii. The interest free loan was obtained from AICC to Young Indian only on the basis of its objectives which were to revive and promote the Newspapers under AJL.
xiii. However, in October 2012, Young Indian did not have any such intention of reviving newspapers as seen by the reply of the offices of Mr. Rahul Gandhi, a principal Director of the Young Indian. This is another fraud.
xiv. Moreover the land allotted by Central and State Governments to AJL at concessional terms were explicitly for the purpose of facilitating publishing news papers[Indian Express case AIR 1986 SC ].
xv. Third, the AJL in a claimed EGM [Attendance Register not available] then resolved to issue 9 crores new shares at the original price of Rs 10/- and transferred these shares to the Young Indian as repayment of the said loan of Rs 90 crores from Congress Party and owned by the Young Indian.[The minutes of the said EGM are attached as ANNEXURE P-11 at Page 377-379 of Volume 2 of the Petition filed by Ms. Sonia Gandhi].
xvi. It is recorded at Para (e) of the said Minutes [at page 379 of Ms. Gandhi’s Petition] that the ‘No Promoters/Director/Key Management persons will subscribe to the Shares’, i.e., of the new shares being allotted to Young Indian.
xvii. This is blatantly and knowingly false since the CMD and the signing authority of AJL, Mr.Motilal Vora, who is also a Director in Young Indian, has had shares in Young Indian since the incorporation of the said Company. The minutes of the EGM itself show as false and as manifestly in gross violation of law.
xviii. Again at page 379 of the Petition, in the minutes of the EGM it has been recorded at Para (h) it is stated that ‘No change in control is intended or expected’. However, by the admission of the said Petitioner herself in Para 3 (t) at page 9 of the Petition, since Young Indian acquired 99% shares of AJL on 26.02.2011, therefore as per Company Law, AJL has now become a subsidiary of Young Indian on the basis of 99% control of its shares, and Accused No.1 Ms. Sonia Gandhi and her son Accused No. 2 Mr. Rahul Gandhi together have acquired dominant and overwhelming control of AJL.Thus, the change of ownership of AJL was effected by deliberate falsehood tantamount to fraud.
xix. Upon the YI owning the said debt of AJL and obtaining 99% or more of the total shares of AJL, the Congress Party then wrote off the loan owed to it now by YI as “unrecoverable” thus freeing the YI of any liability of the Rs 90 crores owed to the Congress Party.
xx. The extraordinary event thus is: On 1.1.2011, Congress Party had a right to recover Rs 90 plus crores from the AJL either by a winding up petition under Companies Act, or by forcing a sale of a small part of AJL’s asset or from its claim on the return to the Government of leased land allotment.
xxi. But instead YI which had a mere Rs 5 lack authorized capital and a liability of Rs 50 lakhs to a nationalized bank and about Rs 90 crores of owned liability to the Congress Party then, became on 26.2.11 the owner of more than Rs. 2000 crores of real estate and building and free from any liability.
xxii.
xxiii.
xxiv.
xxv. This is not only extraordinary but unprecedented in financial history. It is prima facie cheating, fraud, and criminal breach of trust.
xxvi. Thus by a series of frauds a Rs. 5 lakh authorized capital private limited company came to acquire and control an encumbrance free real estate rich publishing company and snuffed out the newspapers publishing sole activity of the AJL by Accused own admission in writing.
THE ISSUE OF SUMMONS
xxvii. The impugned Summons to seven Accused on 26/5/14 and issue of process u/s 204 of the Cr. PC in Case 9/1/13 is in the 20 page Order of the Ld. Metropolitan Magistrate, Patiala House Court, New Delhi on the Complaint filed by this Respondent inperson.
xxviii. The said Order draws attention to 9 basic facts in the said Complaint, none of which facts is denied by the Petitioners/Accused.
xxix. The Ld. MM then applied her mind to these nine facts and documents and came to be of the opinion that the basic ingredients for the commission of the said offences were made out in the Complaint and hence took cognizance and then holding that there is sufficient ground for proceeding, issued process u/s 204 of the Cr. PC, and summons to the accused to appear in her court on 7/8/14.
xxx. The Petitioners have alleged that no basic ingredients of the offences as alleged in the Complaint are made out and hence the Complaint is infructuous. That the Petitioners are not only seeking to introduce new documents which were not present before the trial court and cannot be raised in a Petition under Section 482 of the Cr. PC proceedings before this Honble Court ,but are also seeking to argue disputed questions of fact and set up their defence which is not permissible in these proceedings herein but can be done before the trial court. The Petitioners may adduce the same in the form of evidence at the stage of pre-charge evidence, i.e., before the charge is formed against the Accused Persons. That the ld. Magistrate has specifically recorded that the accused will be given full opportunity as per law in the last para of the summons order itself.
xxxi. The ingredients of the offences alleged to have been committed by the Accused are clearly stated in the Order of the Ld. Magistrate which is appended in the Petitions filed by the Accused in u/s 482 of the Cr. PC. From the perusal of the same it is clear that the Ld. Magistrate has transparently applied her mind and concluded that this Respondent/Complainant in person has made out a prima facie case of the commission of the offences, and thus validly issued process u/s 204 of the Cr. PC.
THE CASE LAWS
xxxii. The case law relied on for the prayer of this Respondent in person to dismiss the Quashing Petitions of the Accused are as follows:
[a] The Hon’ble High Court will not entertain any Petition u/s 482 of the Cr. PC if it does not disclose any issue of the abuse of court process or of lack of application of mind of the Ld. Magistrate even if there is no detailed written Order on the issue of process: [(2012) 5 SCC 424 at paras 12 to 22].
[b] The Hon’ble High Court will not entertain any Quashing Petition that seeks any fresh appreciation of the facts or on fresh evidence or new documents that were not before the Magistrate who issued the Summons: [(2012) 1 SCC paras 8 and 9].
[c] The Hon’ble High Court will not entertain any Petition u/s 482 of the Cr. PC which evaluates the truthfulness or otherwise of the allegations leveled by the Complainant against the Accused. [(2013) 3 SCC 330 at paras 28, 29, and 30].
xxxiii. This detailed Order sustains the opinion that there was sufficient ground for the Magistrate to proceed and thus issue Summons to the accused. It was not essential that the Ld. MM do so, but to form an opinion for issue of process. [(2012) 11 SCC 465 at paras 13 to 1]6.
xxxiv. In the Summoning Order of 26.6.14 of the Ld. MM, besides bringing out nine crucial facts in the Complaint, the Order reveals clearly the Ld. MM’s application of mind to the alleged modus operandi in commission of offences, how the alleged wrongful gain/loss was caused, the oral evidence tendered on oath by the Complainant and the Witnesses, the affirmation on oath of the authenticity and validity of the essential documents submitted by the Complainant by the summoned Witness, from the Registrar of Companies Office. [(2012) 5 SCC 424 para 12]
xxxv. The Petitioners have separately and collectively alleged that the Respondent/ Complainant lacked locus to move the criminal law in a court of law. It is submitted that as laid down in Dr. Subramanian Swamy v/s Dr. Manmohan Singh [(2012) 3 SCC 64, para ; (2001) 3 SCC 462, paras 8, and 9] this is a baseless argument.
xxxvi. Nor the Petitioners allegation a gross bias and malafide intention on behalf of the Complainant/ Respondent-in-person herein, towards the Congress Party and especially towards Mrs. Sonia Gandhi and Mr. Rahul Gandhi can vitiate a well reasoned Complaint. Thus, personal bias cannot vitiate a Complainant from bringing forth a corruption case based on sound and relevant facts. [(2009) 5 SCC 199 at paras 16, 17, and 19].
xxxvii. There are several judgments rendered by this Hon’ble Court declaring the legal position that in a case where the prosecution/complainant has leveled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations leveled, the trial must be held. [2013 (4) Crimes 97 (Del) and in this Honble Court Crl M.C. 4751 of 2013 Order of 19.5.14.last para].
xxxviii. The Petitioners have alleged that the Respondent/Complainant had only prayed for an investigation under section 156(3) of the CRPC in the Complaint and the Magistrate has exceeded her jurisdiction by issuing summons under section 204 Cr.PC.
xxxix. However, under the Cr. PC, a Magistrate has 2 courses of action, if a prima facie case is made out in his or her opinion. He can either order the police to conduct an investigation under section 156(3) of the CRPC or take cognizance of the matter under section 200 of the CRPC and order pre-summoning examination of the Complaint and the witnesses. If after the enquiry of the Ld. Magistrate, a prima facie case is made out then summons are issued to the Accused persons under section 204 of the CRPC.
6. Therefore, the Petitions of the Accused Persons for quashing should be dismissed and they should be asked to comply with the Summons and accordingly appear in the Ld. Metyropolitan Magistrate’s Court in Patiala House Campus on 7th August 2014.
New Delhi
August 6, 2014
SUBRAMANIAN SWAMY
Respondent/ Complainant