Barring the additional slapping of charges under Section 409criminal breach of trustwhich the CBI brought in later, the court has stuck to the charges slapped in the two chargesheets on all the other counts.
The first charge of the accused is likely to be the one based on telecom minister Kapil Sibals zero-loss theory. While framing charges, the court has said that the CBI has rightly arrived at a rough estimate of the loss at around R30,000 crore. It has elaborated this by saying that in such situations it is not possible to arrive at the exact amount of loss. The accused will, however, point to the telecom regulators latest covering letter to a report which says that, in 2007, Trai had not asked for auctions. While this, along with Sibals statement, could well turn the tables of the CBI, the CBI will presumably argue that the same Trai had, in March, given an affidavit to the court arguing quite the opposite. The CBI will also cite the then Trai chief Nripendra Misras various letters to the telecom ministry stating that his 2007 recommendations were being distorted.
The next big defence launched will be on the definition of what associate companies arethis will affect Reliance Telecom, DB Realty and Swan Telecom. If Reliance Telecom and Swan are not associatesand this is what the law ministrys opinion impliedthe CBIs case will take a big hit. While the CBI had opposed the law ministrys opinion on the grounds that it was unsolicited and irrelevant, the court had nevertheless asked the CBI to present this before it for fairness and transparency of the trial. The court not taking cognisance of the law ministrys opinion while framing charges does not mean it has rejected itwhile framing charges, though, the court was emphatic in saying Swan was nothing but a front for Reliance Telecom. The CBIs defence here will be that, if the two are not associates, why did Reliance Telecom inject so much money into Swan.
Apart from the issues relating to zero-loss and associates, the CBIs first big challenge relates to the charges against Unitech Wirelesss Sanjay Chandra. Since the CBI has found no money trail from Chandra, its ability to prove a conspiracy depends upon the deposition of a former DoT official in-charge of licensing, AK Srivastava, who has alleged that Rajas private secretary RK Chandolia kept on enquiring about Unitech Wirelesss licence application and, once it was received on September 24, 2007, asked him to advance the cut-off date for processing licences from October 1, 2007, to September 25, 2007. Apart from the possibility of Srivastava retracting his statement in court, it is still Srivastavas word against Chandolias. Since Unitech Wireless happened to jump the first-come first-served queue, thanks to Rajas change in the definition of first-come first-served, the charge looks plausible. But the CBI has not chargesheeted another companyDatacom (now Videocon Telecom), which gained much more than Unitech Wireless in terms of jumping the queue. Chandras lawyers will be sure to pick on this discrepancy.
Similarly, the CBIs delay in chargesheeting Essar-Loop, where the case is similar to ADAG-Swan, may have a bearing on the latters case if the delay turns out to be unending. In quite the same manner, the CBIs clean chit to Tata Teleservices (TTSL) so far (indeed, it has been painted as a victim) could prove to be problematic. The moment the investigation shifts to allocation of dual technology licences and spectrum, the clean chit to TTSL may not work since its application came after the 575 applicants till October 1, 2007.
Contrary to popular perception, the biggest problem the CBI may have is likely to be in convicting A Raja. Raja has enough paperwork to show others in the government were aware of what he was doing. Also, the major policy changes he made were cleared by the then solicitor general. The CBI will have to convince the court that the one paragraph Raja deleted from the press release cleared by the solicitor general were critical and, in effect, Raja distorted the clearance.
Given the complexities of the case and the high-profile nature of those involved, the CBIs real challenge lies ahead. More so given its history of securing convictions.