SoniaG National Herald ghotala: modus operandi and case laws explained by Dr. Subramanian Swamy in Delhi HC Well today also in National herald the defence keeps arguing. Dr @Swamy39 yet to begin. They have now taken 4 dates already. Next date 3\9. The modus operandi of SoniaG advocacy group is clear: delay the process of executing the summons of Patiala Court on the accused SoniaG, RahulG PLUS Motilal Vora, Suman Dubey. Next D-day September 3, 2014. Kalyanaraman IN THE HIGH COURT OF DELHI AT NEW DELHI WRITTEN SUBMISSIONS IN REPLY TO: CRIMINAL MISC MAIN CASE NO. 3333 OF 2014 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 Ld. MM-02, Patiala House Courts, New Delhi in which Ms. Sonia Gandhi 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 tax exemption facility u/s 13A of the IT Act, has been held to be prima facie proved and hence a show cause Notice has been issued by the Income Tax authorities but to which Notice, the Congress Party has yet to reply. 4. Moreover, this fact was not disclosed by the Accused/Petitioners to this Hon’ble Court even while making oral submissions and hence they have come to this Hon’ble Court with unclean hands. 5. Another Complaint has been filed by this Respondent with the Enforcement Directorate under the Prevention of Money Laundering Act, which is being inquired into for further action. 6. The Petition filed in the Election Commission under the Representation of People’s Act for the de-recognition of the Congress party, which was not a Criminal Complaint but a civil case before a Tribunal. 7. 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 in person and had directed all the Accused Persons to appear in person on 7th August 2014. 8. Presently, the Summons have been re-issued for appearance of the Accused/Petititoners on August 28, 2014. 9. Against the said Summons of 26/6/14, 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 Petition is baseless and without any merit, and hence it is prayed that this Hon’ble Court dismisses the same. MAIN SUBMISSIONS OF ACCUSED/PETITIONERS 10.The three main submissions of the Respondents are: (a) That this Respondent has no locus to file the criminal complaint (b) That even if this Respondent had locus, the Complaint is vitiated and void because of the alleged personal malice of this Respondent and (c) the Complaint does not disclose any ingredients of the alleged offences said to be committed under the IPC. 11.My Reply is as follows: i. 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 Subramanian Swamy vs Manmohan Singh (2012) 3 SCC 64 para 30, and in (2001) 3 SCC 462, paras 8, and 9], this is a baseless argument. ii. Nor the Accused/Petitioners’ allegation of a gross malice and malafide intention on behalf of the Complainant/Respondent-in-person, and especially towards Mrs. Sonia Gandhi and Mr. Rahul Gandhi, will vitiate a well reasoned Complaint, has no basis in case law. Personal bias, even if any in this case, cannot vitiate such a Complaint or prevent this Respondent/Complainant from bringing to the attention of a magistrate a complaint of offences committed or a corruption case based on sound and relevant facts. iii. There is in fact no personal malice at all in this Respondent seeking to set the criminal law into motion. This Respondent has had no personal interaction or dealings with any of the Accused. In any case the facts stated and offences alleged are not at all connected with any personal matters or relation [(1992) Supp(1) SCC 335 at paras 109 and 110; and (2009) 5 SCC 199 at paras 16, 17, and 19]. iv. 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 Hon’ble Court Crl. M.C. 4751 of 2013 Order of 19.5.14 last page]. v. 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. vi. 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. THE ISSUE RAISED OF LACK OF INGREDIENTS i. The Accused/Petitioners have alleged that no basic ingredients of the offences as alleged in the Complaint are made out and hence the Complaint is infructuous and without jurisdiction. ii. The ingredients of the offences alleged to have been committed by the Accused are clearly stated in the 20 pages Order of the Ld. Magistrate which is appended in the Petitions filed u/s 482 of the Cr. PC by the Accused. iii. Considering that the Ld. Magistrate has issued a 20 page Order which clearly discloses that she has fully applied her mind to the fact, circumstances, documents, and evidence tendered by this Complainant and witnesses, the said Quashing Petition is not maintainable or valid. iv. 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. v. The said Order also draws attention to 9 basic facts in the said Complaint, which facts are not denied by the Petitioners/Accused. vi. In the Summoning Order of 26.6.14 of the Ld. MM, besides bringing out nine crucial facts in the Complaint, 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. vii. The Ld. Magistrate thereafter 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 now on 28/8/14. viii. But an option is available in the trial court u/s Section 251 of the Cr. PC to plead the averments of lack of ingredients [Bhushan Kumar vs. NCT of Delhi (2012) 5 SCC 424 paras 16 to 22 especially para 20 which is cited in an Order of this Hon’ble Court on 19.05.2014 in Crl. M.C. 4751/2013 ]. ix. Moreover, the lack of ingredients was pleaded before this Hon’ble Court on new facts and documents not before the trial court and which also requires fresh appreciation of facts by this Hon’ble Court. This the Hon’ble Supreme Court has repeatedly held is impermissible. Hence these Petitions are without merit. x. The case law relied on to further submit that these Petitions are without merit and be dismissed, 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 was no detailed written Order [which is not the case herein] on the issue of process: [(2012) 5 SCC 424 at paras 12 to 15]. [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]. xi. The detailed Order of the Ld. Magistrate 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 to form an opinion for issue of process [(2012) 11 SCC 465 at paras 13 to 16]. xii. 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 Hon’ble 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. xiii. 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. xiv. The Petitioners may therefore 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. THE FACTS xv. On authenticated documents submitted in my Complaint and filed before the Ld. Metropolitan Magistrate, Patiala House, New Delhi, and which are admitted in the Petitions filed herein by the Accused, it transpires that Young Indian[YI], a Rs. 5 lakh authorized capital Section 25 private limited company, incorporated on 14.10.10, acquired a non-Section 25 public limited company, Associated Journals Limited [AJL], by allotment to YI of 99.1% of the total shares of AJL on 26.2.11, on which date and subsequently, Accused Nos.1 to 6 were Directors of YI, with Accused No. 1 Ms. Sonia Gandhi, and her son Mr. Rahul Gandhi Accused No.2 xvi. AJL was incorporated on 20.11.37 [page 122-27 of said Mr. Vora’s Petition] as a Public Limited Company, and is not and was never an in-house Congress Party publication, unlike the BJP Today is of BJP, but was in fact set up as a commercial enterprise to publish newspapers. xvii. The said newspapers disseminated news about the Freedom Struggle and not about the Congress Party which became a political party after 1947 against the wishes of Mahatma Gandhi. xviii. Some of the venerated founding members of AJL such as Acharya Narendra Dev then founded other political parties, such as the Socialist Party. AJL remained as a commercial venture and a public limited company even after 1947. xix. AJL closed down all its newspaper publications in late 2008, saddled with about Rs 90 crores of debt, but owning at least Rs. 2000 crores of immovable property. xx. This approximate Rs. 90 crores debt is largely of unpaid past loans including from the Congress Party. The Income Authorities in 2004 took notice of these loans [Vora Petition p.272], but took action now in 2014 upon receiving a separate Complaint filed by this Respondent. xxi. 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. xxii. Several of the Directors of Young Indian were also Directors of the AJL. Besides Ms. Sonia Gandhi and Mr. Rahul Gandhi who together own 76% of the shares of Young Indian, Mr. Motilal Vora and Mr. Oscar Fernandes own the remaining 12% each of the remaining shares. MODUS OPERANDI xxiii. The modus operandi of effecting this acquisition and change in ownership occurred as follows: First by the Congress Party wiped out the debt liability of AJL of about Rs. 90 crores for the stated purpose of bringing “ the newspaper back to health”, by extending an unsecured zero interest loan of Rs 90 crores from its funds to AJL [p. 343]. xxiv. Thereafter, the Congress Party President Ms. Sonia Gandhi, Vice President Mr. Rahul Gandhi, Treasurer Mr. Motilal Vora and General Secretary Mr. Oscar Fernandes together and collectively decided to permit the Young Indian to own the debt. xxv. 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. xxvi. No reason is given for this step. If the principal Office Bearers of the Congress Party are the same as that of YI, in what way does this facilitate the recovery of the said loan? Since the Congress party wrote off the loan for Rs. 50 lakhs, thereby incurring a loss of about Rs 89.50 crores to itself, and to the benefit of the YI which was able take control of the AJL and its vast properties of Rs 2000 crores or more for a mere Rs. 50 lakhs that was obtained as an unsecured loan from a nationalized bank, therefore what bonafide reason there could be for the Congress Party to agree to vest the Rs 90 crore liability of the AJL with YI? The Congress party could well have directly informed the AJL that it is writing off the debt or could have made AJL sell off under a legal procedure, a small portion of this vast property worth over Rs. 2000 crores to recover the said loan of Rs. 90 plus crores, therefore it is evident that YI was a SPV for the premeditated purpose of enabling the Accused Petitioners of misappropriating the resources of AJL for their own preferred use. xxvii. There was therefore, Prima Jacie, a malafide reason to enable YI as special purpose to acquire the AJL. xxviii. More importantly, Young \Indian judging from its Memorandum and Articles of Association cannot publish newspapers and admittedly does not have any such intention as seen by the reply on behalf of the Mr. Rahul Gandhi, a 38% share holding Director of Young Indian. xxix. 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 ]. xxx. Third, the AJL in a claimed EGM then resolved to issue 9 crores new shares at the original price of Rs 10/- and allotted these shares to the Young Indian for repayment of the said loan of Rs 90 crores from Congress Party and now owned by the Young Indian. [The alleged 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]. xxxi. 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. xxxii. For example at page 379 of the Petition, in the Notice for the EGM it has been recorded at Para (h) that ‘No change in control is intended or expected’. xxxiii. However, the Petitioner/Accused Ms. Sonia Gandhi herself in Para 3 (t) at page 9 of the Petition, has admitted that “On 26.2.2011, Young Indian became approximately 99% shareholder of AJL”. xxxiv. This is a clear deception of the AJL shareholders to dishonestly induce them in order to fraudulently obtain their approval for allotment of the 99% shares of the AJL to the YI knowing fully well that post allotment would result complete change in control. xxxv. 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 cheating. xxxvi. Furthermore, in order deceive and cheat, the Explanatory Statement [at p.407 of Petitioner/Accused Mr. Rahul Gandhi’s Petition] that “None of the Directors of the Company(AJL) is concerned or interested in the Special Resolution at Item No.1 of Notice” is false and deceptive statement to the knowledge of the CMD of AJL Accused Mr. Motilal Vora and Petitioner /Accused Mr. Oscar Fernandes as Director of AJL and were obviously a vitally interested parties as a Treasurer and General Secretary of Congress Party and who in furtherance of conspiracy become Shareholder/ Director on the very next day without disclosure. xxxvii. The extraordinary event thus is: Congress Party before December 28, 2010 had a right to recover Rs 90 plus crores from the AJL either by a winding up petition under Companies Act, or by other provisions of law. Then the AJL shareholders had interest in huge immovable assets of the company net of Rs. 90 crores, while YI controlled by Congress Party office bearers in their individual capacity had a mere Rs. 5 lakh authorized capital. xxxviii. That after this huge scam, on 26.2.2011, Congress Party has suffered a loss of Rs.89.5 crores approximately, while the original shareholders AJL were left with mere and token 1% interest in the company is its huge assets. xxxix. Whereas, the beneficiary YI controlled by Ms. Sonia Gandhi and her son Mr. Rahul Gandhi, who are also President and Vice President of the Congress Party now in their individual capacity have control via YI of 99% of the assets a non Section 25 subsidiary company the AJL and its huge assets. xl. All this cheating fraud and criminal breach of trust and criminal misappropriation was executed in a short period of three months. xli. This is not only extraordinary but unprecedented in financial history. It is prima facie cheating, fraud, and criminal breach of trust. 12.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. Metropolitan Magistrate’s Court in Patiala House Campus on 28th August 2014. At New Delhi on August 13, 2014 SUBRAMANIAN SWAMY bharatkalyan97.blogspot/2014/08/soniag-national-herald-ghotala-modus.html
Posted on: Wed, 13 Aug 2014 20:31:18 +0000
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