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2011-CBI, ACB, New Delhi CBI Vs

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2011-CBI, ACB, New Delhi CBI Vs IN THE COURT OF O. P. SAINI: SPL. JUDGE, CBI (04) (2G Spectrum Cases), NEW DELHI. CC No. 01/14 Case RC No. 22(A)-2011-CBI, ACB, New Delhi CBI Vs. (1) Dayanidhi Maran (A-1); (2) Kalanidhi Maran (A-2); (3) M/s Sun Direct TV (P) Limited (A-5); & (4) M/s South Asia Entertainment Holdings Limited, Mauritius (A-8); Order: Reserved on: 16.11.2016 Pronounced on: 02.02.2017 Presence/ Appearance: Sh. Anand Grover Sr. Advocate/ Special PP with Sh. K. K. Goel & Sh. A. K. Rao Sr. PPs, IO Dy. SP S. K. Sinha and Inspectors Shyam Prakash & Manoj Kumar for CBI. Sh. Kapil Sibal & Ms. Rebecca John Sr. Advocates with Sh. Maninder Singh, Sh. Anirban Bhattacharya, Sh. Shikher Deep Aggarwal, Sh. Abhishek Gupta and Mr. Chahat Chawla Advocates for accused Kalanithi Maran; Dr. Abhishek Manu Singhvi & Sh. R. S. Cheema Sr. Advocates with Sh. Sushil Bajaj, Sh. Sumesh Dhawan, Ms. Vatsala Kak, Ms. Tarannum Cheema and Ms. Tannya Baranwal Advocates for accused Dayanidhi Maran; Sh. Parag Tripathi Sr. Advocate with Sh. Anirban Bhattacharya, Sh. Shikher Deep Aggarwal, Sh. Abhishek Gupta and Sh. Chahat Chawla CBI Vs. Dayanidhi Maran & others Page 1 of 424 Advocates with Authorized Representative Sh. K. Swaminathan for accused M/s Sun Direct TV (P) Limited (A-5); and Sh. Sidharth Luthra Sr. Advocate with Sh. Neeraj Chaudhari, Sh. Siddharth Aggarwal, Sh. Anuj Berry and Sh. Malak Bhatt Advocates with Authorized Representative Sh. Ajay Sehgal for accused M/s South Asia Entertainment Holdings Limited (A-8). ORDER ON CHARGE This order shall dispose of the question: As to whether, on the basis of material on record, a prima facie case warranting framing of charge against the accused is made out or not. 2. The brief facts of the case are as under: 3. One Sh. C. Sivasankaran, promoter of Siva group, has been in telecom sector since 1994, when M/s Sterling Cellular Limited, promoted by him, was provided Cellular Mobile Telecom Services (CMTS) licence in Delhi service area. Sh. C. Sivasankaran had the controlling stake in Siva group of companies including the telecom companies, through his family members. He formed a holding company viz. M/s Aircel Tele Ventures Limited (ATVL) in 1997. M/s ATVL had 100% ownership of M/s Aircel Limited operating in Tamil Nadu service area, M/s Aircel Cellular Limited (ACL) operating in Chennai service area and also in M/s Dishnet DSL Limited (later on M/s Dishnet Wireless Limited). CBI Vs. Dayanidhi Maran & others Page 2 of 424 M/s Aircel Limited launched its operations in Tamil Nadu service area in April, 1999. In the year 2003, M/s ATVL also acquired M/s Aircel Cellular Limited held by joint venture of RPG (RP Goenka group) and Vodafone (UK), which was the service provider in Chennai telecom circle. 4. Sh. C. Sivasankaran wanted to expand his GSM mobile business from these two service areas to other service areas through his company M/s Dishnet DSL Limited. Accordingly, M/s Dishnet DSL Limited applied to DoT for grant of Unified Access Service Licences (UASLs) on 05.03.2004 in eight service areas, that is, Assam, North-East, West Bengal, Bihar, Orissa, MP, Himachal Pradesh and J&K. The DoT issued Letters of Intent (LOI) on 6th April, 2004 for these eight service areas. The company submitted compliance to the LOIs on 20.04.2004 for seven service areas. For the remaining service area of Madhya Pradesh, the company sought some additional time. This company also applied for grant of UASLs for two more service areas, that is, UP (West) and UP (East), on 21.04.2004. The proposal for extension of time to comply with LOI for MP service area and issuance of LOI for grant of new UASLs for UP(E) and UP(W) service areas were de-linked from the signing of licences for seven service areas and these seven licences were executed on 12.05.2004. This company, that is, Dishnet Wireless Limited, also applied for grant of four UAS licences in Punjab, Haryana, CBI Vs. Dayanidhi Maran & others Page 3 of 424 Kerala and Kolkata service areas on 01.03.2005. 5. In May, 2004, there was change of Government at Centre and Sh. Dayanidhi Maran took over as Minister of Communications and Information Technology (MOC&IT) on 26.05.2004. Sh. Dayanidhi Maran worked as MOC&IT, Government of India, New Delhi, during the period from 26.05.2004 to 17.05.2007. Late Dr. J. S. Sarma worked as Additional Secretary (Telecom) between October 2003 and November 2004. He again joined DoT as Special Secretary on 04.06.2005 and took over as Secretary (Telecom) on 01.07.2005 and held the office till 16.07.2006. 6. Sh. Kalanithi Maran, brother of Sh. Dayanidhi Maran and promoter of M/s Sun TV Networks Limited, Chennai, which is a broadcasting company, distributing and telecasting different TV channels in different languages since 2000, also promoted another company in the name of M/s Sun Direct TV (P) Limited in the month of February, 2005 to provide Direct to Home broadcasting service in India. 7. Sh. Ralph Marshall was Director of M/s Maxis Communications Bhd., Malaysia, and M/s Astro All Asia Networks Plc. UK. Sh. T. Ananda Krishnan was having the majority shareholding in both companies. 8. In December 2005, these three companies were allegedly sold to Maxis Communications of Malaysia. It is alleged that the sale of these companies held by Sh. C. Sivasankaran to M/s Maxis Communications (through its subsidiary M/s Global Communications and a joint venture CBI Vs. Dayanidhi Maran & others Page 4 of 424 company named M/s Deccan Digital Networks (P) Limited formed between Indian partner M/s Sindya Securities and M/s Global Communications) was with the intervention of Sh. Dayanidhi Maran and his brother Sh. Kalanithi Maran. 9. It is alleged that Sh. Dayanidhi Maran, the then MOC&IT, in abuse of his official position, deliberately delayed grant of UAS licences in seven service areas and other approvals/ permissions on various issues pending before Department of Telecommunications (DoT) related to Aircel Tele Ventures Limited on frivolous grounds with an intent to force its exit from telecom business by constricting its business environment. 10. It is alleged that after the change of ownership, the applications for issuance of licences and other requests/ approvals pending since long before the DoT were smoothly acceded to and after such transfer undue favour was given to these companies, for which alleged illegal gratification was paid through the companies of Sh. Kalanithi Maran. 11. The details of delay in grant of LOIs, UAS Licences and other approvals, acquisition of telecom companies of Sh. C. Sivasankaran by Maxis Communications, Malaysia, smooth approvals, post-acquisition by Maxis Communication and payment and receipt of bribe are as under: A. Allegations relating to delay 12. It is alleged that the grant of LOIs, extension of time in MP service area and various other regulatory approvals of M/s Aircel Limited, M/s Dishnet DSL Limited and M/s Aircel Cellular Limited were delayed on frivolous grounds. The details CBI Vs. Dayanidhi Maran & others Page 5 of 424 of such delays are given as under: (i) Delay in grant of LOIs for award of UASL in UP(E) and UP(W) and grant of extension of time of signing licence agreements in MP service area to M/s Dishnet DSL Limited 13. It is alleged that DoT had issued LOI for Unified Access Service Licence (UASL) for eight telecom service areas including Madhya Pradesh in favour of M/s Dishnet DSL Limited (a Siva group company) on 06.04.2004. UAS licence agreements in respect of seven service areas were executed on 12.05.2004. However, licence agreement in respect of Madhya Pradesh service area was not executed. 14. It is further alleged that M/s Dishnet DSL Limited submitted a letter dated 20.04.2004 requesting for extension of time by 90 days from 20.04.2004 required to fulfill the formalities of bank guarantee to sign the licence agreement in Madhya Pradesh service area. This application was processed in file No. 20-231/2003-BS-III (Vol. III). 15. It is further alleged that M/s Dishnet DSL Limited submitted applications dated 21.04.2004 for grant of UAS Licences for UP (East) and UP (West) service areas. These applications were also processed in file No. 20-231/2003-BS- III (Vol. III). DoT officials examined the applications and recommended for approval for issue of LOI to M/s Dishnet DSL Limited for award of UASL in respect of UP (E) and UP (W) service areas and for grant of extension of time by 90 days for signing the licence agreements in respect of MP service area. Sh. Nripendra Misra, Secretary, DoT concurred with the CBI Vs. Dayanidhi Maran & others Page 6 of 424 proposal and marked the file to Sh. Dayanidhi Maran, the then MOC&IT, for approval on 13.07.2004. In spite of the unanimous recommendations, Sh. Dayanidhi Maran, instead of according approval, raised objections and sought clarification through his PS Sh. K. Sanjay Murthy on 26.08.2004. 16. It is further alleged that M/s Bharti Airtel Limited and M/s Reliance Infocomm Limited had submitted applications dated 15.04.2004 and 24.06.2004 respectively for grant of UAS licence for Assam and J&K service areas, which were approved by accused Sh. Dayanidhi Maran, the then MOC&IT, on 22.06.2004 without raising queries and, as such, the queries raised by accused Sh.
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