By Vineet Malik | September 27, 2023 | London, England
More than six months after the trial court in Mumbai, India issued summons to seven accused in a criminal matter alleging cheating, fraud and conspiracy that exacerbated the already bleeding airline into colossal debt and losses between 2015 – 2017 enters a new phase of miscarriage of justice
Fraud Committed to Loot Public Monies
It is alleged that the accused persons in collusion with each other conspired into looting public monies that emerged from irregularities, procedural lapses, exceeding jurisdiction and misuse of financial powers in procurement of high value Ground Support Equipment (GSE) by Air India Airport Services Ltd. (AIASL).
GSE equipment is now lying idle and yet to be commissioned in services in non metro; B and C Tier Cities in absence of carrying out any wide body operations.
The trial court presided by Metropolitan Magistrate, Mumbai Vijay C. Gawai summoned the accused on 12 December last year.
The accused in the matter waited for more than five months after being summoned by the trial court and repeatedly delayed the matter seeking adjournments and finally challenged the trial court order by moving Bombay High Court (HC) on 1 June this year.
Chief Financial Officer, Vinod Hejmadi and Amrita Sharan, then Executive Director Personnel, Air India Airport Services Ltd. (AIASL), a subsidiary Co. of Air India Ltd. have filed two writ petition in Bombay HC with a plea to get the names of accused number three to seven deleted from the criminal complaint.
Bombay HC Justice Sarang V. Kotwal granted ad-interim relief to the accused by passing an order on 26 July this year.The complainant, KVJ Rao says, “I have been provided a copy of the writ petition filed by the accused day before yesterday; after 60 days.
Analysis of Bombay High Court Order
Justice Kotwal's justification for granting relief to the accused in point number 3 of the High Court order
Learned counsel for the Petitioners submitted that both the parties are residents of Gurgaon and deliberately their address is shown in Mumbai. Thus, learned Magistrate was misled into passing the order for issuance of process without following the procedure of directing inquiry under Section 202 of Cr.P.C. They further submitted that the provisions of Section 200 of Cr.P.C. were not followed. Learned Magistrate relied on a typed-copy of the purported verification statement submitted by the complainant and wrongly treated it as a statement under Section 200 of Cr.P.C. Therefore, the entire procedure was illegal. He submitted that there are no specific allegations at all against the Petitioner No. 2. As far as the Petitioner No. 1 is concerned, she was not a Director of the concerned subsidiary company in the year 2015 when the offence has allegedly taken place.
*Cr.P.C refers to Code of Criminal Procedure.
Section 200 of the Cr.P.C, 1973 says
Section 202 of the Cr.P.C, 1973 says
Complainant's Contention
Rao says, “Section 202 of the CrPC talks about Jurisdiction to only avoid false complaints or harassment of innocent persons. This Code primarily has an objective of ensuring that there is absolutely no issue or loophole in the case which might be exploited by either of the parties, thereby ensuring fair and equitable justice.
It also clearly says that the Magistrate may send the complaint to ascertain if it is a false complaint but in this case, the Magistrate has clearly established the fraud by Vigilance Department, Air India Ltd. then how can the order to issue process be faulted or termed illegal by the trial court.
The Constitution bench of the Supreme Court in Chandra Deo Singh vs Prakash Chandra Bose & Another dated 22 January 1963 stated, "For determining the question whether process is to be issued or not the test to be applied is whether there is "sufficient ground for proceedings" and not whether there is sufficient ground for conviction.
There are also several judgments ruled by the Constitutional Courts where it is held that, “Where there is a prima facie case even though much can be said on both sides, a committing Magistrate is bound to commit the accused for trial.”
On 3 October 2022, I made a statement on oath by signing the three page verification statement in the presence of the Metropolitan Magistrate in the trial court. The Magistrate also acknowledged it by signing the same document. Given my ink signed signatures on the verification statement, how can the Magistrate not rely on a typed-copy of my verification statement is completely a completely false and misleading argument presented by the accused-petitioners and accepted by the HC.
Accused Number 2, Director Finance, Air India Ltd in capacity of Director Finance and in collusion with others let key unauthorised people directly sign the purchase orders of colossal amount and thereby deliberately bypassed his jurisdiction and misused his official powers. As per rules, the purchase orders should have been routed through the Chief Financial Manager/Financial Manager. How can Director Finance plead innocence as the Vigilance report has already established the wrongdoing committed by Director Finance. Hence, the accused have committed fraud.
Evidently, the Vigilance Report with reference number - REF:A V/11/13/RC-o1/NR/20/21/834 dated 29 September 2021, signed by Chief Vigilance Officer, Air India Ltd., Aarti Bhatnagar clearly mentions in point number three, “As per the delegation of Financial powers of AIASL, the purchase order has to routed the Chief Financial Manager/Regional Financial Managers whereas the they were directly signed by ED Personnel and CEO AIASL.”
The Vigilance report has already established the wrongdoing committed by Executive Director, Personnel Amrita Sharan. Now, she has made an attempt to mislead the HC on several counts, says Rao.
Justice Sarang while granting relief to the accused nowhere mentioned about the Vigilance Report in the order dated 26 July 2023 whereas, Metropolitan Magistrate Gawai in the order dated 12 October 2022 categorically stated that,
“Vigilance report establishes the irregularities as alleged by the complainant. There is sufficient material on record to proceed further. Complainant made out prima-facie case to proceed against accused...”
Present Status of Air India Ownership
The TATA group acquired 100 per cent stake in the bleeding airline valued at 180 Billion deal realised in January this year. Out of the total value, 153 Billion was received as debt and 27 Billion was paid to the government in cash.
The next date of hearing in Bombay HC is scheduled for 5 October 2023.
Bombay HC order dated 26 July 2023 can be read here.
Vigilance Report dated 29 September 2021 can be read here.
Verification Statement signed by KVJ Rao dated 3 October 2022 can be read here.
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