Law

Parts of Delhi HC Order Denying Chidambaram Bail Taken From an Unrelated Case

Justice Suresh Kumar Kait's judgement not only appears to reproduce parts of the ED's counter-affidavit, it also includes references to the facts of a 2016 money laundering case that have nothing to do with the INX Media controversy or P. Chidambaram.

New Delhi: A recent Delhi high court order denying senior Congress Party leader P. Chidambaram bail has placed the spotlight once again on the quality of writing in court judgements.

The former finance minister has been in Tihar Jail in connection with the controversial INX Media case for the last two months.

On November 15, Justice Suresh Kumar Kait of the Delhi high court rejected Chidambaram’s bail application and accepted the arguments of the Enforcement Directorate (ED). 

An examination of Justice Kait’s 41-page-long judgement, however, show that parts of it appear to reproduce the ED’s counter-affidavit without attempting to paraphrase the investigative agency’s arguments.

More strangely, parts of Justice Kait’s judgement also appear to contain facts and whole paragraphs that come from a different 2016 bail application order; one which has nothing at all to do with Chidambaram or the current INX Media case.

P Chidambaram Bail Application Order Delhi HC by The Wire on Scribd

Proceeds of crime

The Delhi high court judgement, in Paragraph 57,  reads:

“As alleged, during investigation, it is revealed that layering of proceeds of crime by use of web of shell companies most of which are in abroad, which companies are only on paper, having no business and used only for laundering of proceeds of crime. There is cogent evidence collected so far that these shell companies are incorporated by persons who can be shown to be closed and connected with the petitioner and his co-conspirators/co-accused all of whom are acting in tandem with each other. The proceeds of crime are thereafter routed through the web of shell companies so incorporated for the purpose of laundering of proceeds of crime and the movement of such proceeds of crime from one company to another company (all of which are not doing any business and exist only on paper), just to make tracing of money trail difficult…”

The counter affidavit filed by ED, signed by assistant director Sandeep Thapliyal, Para 7 (x) reads:

“It is submitted that the next step found so far during investigation is layering of proceeds of crime by use of web of shell companies most of which are abroad, which companies exist only on paper, having no business and are used only for laundering of proceeds of crime.  There is cogent evidence collected so for that these shell companies are incorporated by persons who can be shown to be close to and connected with the accused and his co-conspirators / co-accused all of whom are acting in tandem with each other. It is stated that the proceeds of crime were introduced in the shell companies incorporated for the purpose of laundering and deposits in the shell companies were routed amongst several companies located in different jurisdictions without any real business purpose but just to make tracing of money trail difficult.”

Nature of economic offence

Paragraph 59 of the Delhi high court judgement says:

“The Economic offences in itself are considered to be the gravest offence against the society at large and hence are required to be treated differently in the matter of bail. The courts have successively held that a murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profits regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest.”

The same words can be found in the ED’s affidavit (Para 9):

“…..economic offences in itself are considered to be gravest offence against the society at large and hence are required to be treated differently in the matter of bail. …… A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest..” 

In fact, in this particular section, the ED makes it clear that it is quoting from State of Gujarat vs Mohanlal Jitamalji Porwal, (1987). But this not mentioned in the Delhi high court judgement. 

ED’s counter-affidavit in Chidambaram’s bail plea by The Wire on Scribd

INX investigation

Paragraph 61 of the Delhi high court judgement reads:

“…during the course of search on scrutiny of the digital data, it is revealed that directors and share holders of Advantage Strategic Consulting Private Limited [a benami company of the petitioner and his son], in India (which is holding company of Advantage Strategic Consulting Singapore Pvt. Ltd., Singapore) later on in the year 2013 transferred their entire shareholding of M/s Advantage Strategic Consulting Pvt. Ltd. in favour of the granddaughter of petitioner by way of a Will. During the course of investigation when one of the co-conspirator was asked to produce original copy of the Will, he stated in his statement dated 23.02.2018 that original copy of the Will was destroyed at the instance of the son of petitioner (Karti P. Chidambaram, another conspirator).”

ED Affidavit Para 11(i) reads:

“During the course of search, and the scrutiny of the digital data it is revealed that directors and share holders of Advantage Strategic Consulting Private Limited [a benami company of the petitioner and his son], India (which is holding company of Advantage Strategic Consulting Singapore Pte. Ltd., Singapore) later on in the year 2013 transferred their entire share holding of M/s Advantage Strategic Consulting Pvt. Ltd. to the grand-daughter of petitioner by way of a will. During the course of investigation when one of the co-conspirator was asked to produce original copy of the will, he stated in his statement 23.02.2018 that original copy of the will was destroyed at the instance of the son of petitioner (Karti P. Chidambaram, another conspirator).”

Paragraph 62 of the Delhi high court judgement reads:

“Investigation further revealed that Advantage Strategic Consulting Pvt. Limited, Singapore which is a subsidiary of Advantage Strategic Consulting Pvt. Ltd., India [a company beneficially owned by the petitioner’s son Karti P. Chidambaram, another co-accused, on behalf of the petitioner] received several payments without rendering any services. During the search, several invoices were recovered from the seized digital data which were claimed to have been raised by Director of Advantage Strategic Consulting Singapore Pvt. Ltd. However, when statement of Director of said company was recorded, he clarified that he had not signed any invoice as authorized signatory of said company and the said invoice bore his fabricated signature. Thus, it is evident that not only the company had not rendered any services but had created fake invoices to camouflage proceeds of crime as receipt of payment in lieu of services.”

ED affidavit Para 11(ii) reads:

“The investigations have revealed that Advantage Strategic Consulting Singapore Pte. Limited, Singapore which is a subsidiary of Advantage Strategic Consulting Pvt. Ltd., India [a company beneficially owned by the petitioner’s son Karti P Chidambaram, another co-accused, on behalf of the petitioner] received several payments without rendering any services. During the search several invoices were recovered from the seized digital data which were claimed to have been raised by Director of Advantage Strategic Consulting Singapore Pte. Ltd. However, when statement of Director of Advantage Strategic Consulting Singapore Pte. Ltd. was recorded he had clarified that he had not signed any invoice as authorized signatory of Advantage Strategic Consulting Singapore Pte. Ltd. and the said invoice bore his fabricated signature. Thus from his statement it is evident that not only the company had not rendered any services but had created fake invoices to camouflage proceeds of crime as receipt of payment in lieu of services.”

Rohit Tandon judgement

So far the Delhi high court judgement appears to have reproduced parts of the ED affidavit verbatim. The more curious development, however, is how parts of another bail application judgement that have nothing to do with this current case have crept into the Delhi high court order.

BAIL APPLN. 119/2017 & CRL.M.B. 121/2017 in the Delhi high court was in the Enforcement Directorate vs Rohit Tandon case. In an order delivered on  May 5, 2017, Justice S.P. Garg dismissed Tandon’s bail application, who was being charged in a money laundering case.

While rejecting Tandan’s bail, in para 16 of the judgement, Justice Garg wrote:

“….It is alleged that during the period from 15.11.2016 to 19.11.2016, huge cash to the tune of `31.75 crores was deposited in eight bank accounts in Kotak Mahindra Bank in the accounts of the ‘Group of Companies’. It gives details of Demand Drafts issued during 15.11.2016 to 19.11.2016 from eight bank accounts in the name of Sunil Kumar, Dinesh Kumar, Abhilasha Dubey, Madan Kumar, Madan Saini, Satya Narain Dagdi and Seema Bai on various dates. Most of the Demand Drafts issued have since been recovered…”

In Chidambaram’s bail rejection order, Justice Kait wrote in Para 35:

“It is alleged that during the period from 15.11.2016 to 19.11.2016 huge cash to the tune of Rs. 31.75 crores was deposited in eight bank accounts in Kotak Mahindra Bank in the accounts of ‘group of companies’. It gives details of demand draft issued from 15.11.2016 to 19.11.2016 from eight bank accounts in the name of Sunil Kumar, Dinesh Kumar, Abhilasha Dubey, Madan Kumar, Madan Saini, Satya Narain Dagdi and Seema Bai on various dates. Most of the Demand Drafts issued have since been recovered.”

The above information has nothing to do with the INX Media case or P. Chidambaram.

Rohit Tandon Bail Application by The Wire on Scribd

SC verdict on Rohit Tandon 

Justice Kait’s judgement doesn’t stop there. It also appears to contain parts of a Supreme Court verdict authored by Justice A.M. Khanwilkar. (CRIMINAL APPEAL NOS.18781879  OF 2017, Rohit Tandon vs The Enforcement Directorate.)

In his order, in para 23, Justice Khanwilkar wrote:

“… Indisputably, the predicate offence is included in Part A in paragraph 1 of the Schedule in the Act of 2002, in particular Sections 420, 467, 471 and 120B of IPC. Indeed, the expression “criminal activity” has not been defined. By its very nature the alleged activities of the accused referred to in the predicate offence are criminal activities. … However, the stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens rea. In that, the concealment, possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a scheduled offence. That would come within the meaning of Section 3 and punishable under Section 4 of the Act…”

In paragraph 39 of the Delhi high court judgement, Justice Kait wrote:

“Undisputably, the predicate offence is included in Part A in paragraph 1 of the Schedule in the Act of 2002, in particular Sections 420, 467, 471 and 120B of IPC. Indeed, the expression “criminal activity” has not been defined. By its very nature the alleged activities of the accused referred to in the predicate offence are criminal activities.” 

And Para 40 reads:

“The stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens rea. In that, the concealment, possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a scheduled offence. That would come within the meaning of Section 3 and punishable under Section 4 of the Act.”

Rohit Tandon SC Judgement 10-Nov-2017 by The Wire on Scribd

It appears that the Delhi high court judgement that denied Chidambaram bail not only reproduced parts directly from the ED counter-affidavit without appropriate referencing, but it also bizarrely included the names of the accused people and the offences of an altogether different case.

The offences of this different case were alleged to have taken place between November 15, 2016 and November 19, 2016, and appear to have been used to deny bail to Chidambaram who is being accused of an offence he allegedly committed while he was a finance minister over a decade ago. 

Ravi Nair  tweets at @t_d_h_Nair.