New Delhi: CBI on Wednesday told a Delhi court that the accused in 2G spectrum allocation scam are trying to delay the judicial proceedings in the case by moving various applications before the court.

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The agency made the allegation in its response while opposing the bail plea of Swan Telecom promoter Shahid Usman Balwa, an accused in the case.

There is "ample oral and documentary evidence" against Balwa showing his complicity in the commission of offence, CBI told Special Judge O P Saini.

"The averments made in the bail petition of accused Shahid Balwa that the trial is going to take a long time to conclude is not correct because the proceedings are being taken up on a day-to-day basis and presently it is at the stage of consideration of charge.

"However, it is also worth to submit that the accused persons are trying to delay the court proceedings by moving several applications on one pretext or other," CBI said.

The agency said, "the averments made in bail petition that the applicant accused (Balwa) has been falsely implicated in the case is totally incorrect and devoid of merits because there is ample oral and documentary evidence against the accused petitioner to show his complicity in the commission of offence.

"Moreover, apart from magnitude of the case, the allegations are serious and grave in nature," CBI said. The agency also filed its reply opposing the bail plea of former Telecom Minister A Raja's former Private Secretary R K Chandolia.

Goenka opposes CBI plea for fresh charges

Swan Telecom Director Vinod Goenka on Wednesday opposed in a Delhi court CBI's move to slap the fresh charge of criminal breach of trust against 2G spectrum allocation scam accused, terming it as "ill-timed, ill-motivated and misconceived."

"CBI's present application is misconceived, ill-timed and ill-motivated and it may be dismissed with cost. I call it ill-timed because this court is meant to hear exclusively this
case only. This case is of public importance and it is being monitored by the Supreme Court," Goenka's counsel Majeed Memon told Special CBI Judge O P Saini.

Memon said CBI was in "deep slumber" and suddenly moved the application on September 26 for invocation of an additional charge under Section 409 (criminal breach of trust) of the Indian Penal Code against all 17 accused in the case.

"On September 26, 2011, it suddenly dawned upon the prosecution that they are making a mammoth mistake. It seems they (CBI) were in deep slumber that a petition sees light of
the day on September 26," he added.

"My fundamental and legitimate question to this court and to CBI is that what happened on September 26 or soon before it that it thought of the necessity to present this fresh application at this juncture," the counsel said. Memon argued that as per the settled law of this country, offences related to cheating and criminal breach of trust cannot be invoked together on same set of facts.

"The offences of cheating and criminal breach of trust cannot go together. The Punjab and Haryana High Court had termed it as anti-thesis. If a person is accused of criminal breach of trust, then he cannot be accused of cheating as well on the same facts," he said referring to judgements of various superior courts.

He said as per the First Information Report registered by CBI in October 2009, the offence of cheating was the prime charge.

"Till September 26, the paramount offence in this case was that of cheating....Everything revolved around section 420 (cheating) of the IPC. As per CBI, whatever the accused
allegedly did was for the purpose of cheating," Memon said.

He said Section 409 of the IPC carries life imprisonment as the maximum punishment and CBI's move seeking invocation of this charge is just to enhance the punishment of the accused.

"If the prosecution wants to add any fresh charge, the only course open for them is that they shall file another supplementary charge sheet for section 409 of the IPC. Where is the material for criminal breach of trust? Is there any oral or circumstantial evidence which shows that I (Goenka) have committed criminal breach of trust?," the counsel said.

He said the court should take judicial note of this plea by the CBI application and pass a separate order on this.

Arguing for Swan Telecom, senior counsel Amit Desai said CBI's case is not of public trust doctrine but it is that the accused should not have been given the licence.

"Even today the spectrum continues to belong to the people of India. Here, the licensees are only allowed to use the signal....The government only gives licence to use natural resources but it never sells them," Desai said.

He said the trustee of the spectrum is the state and its ownership still remains with the people of India.

"Spectrum is made for public use. The government is allowing its natural resources, including spectrum, to be used for the masses. Spectrum is used to reach out to the people.
It is not used for private purposes," he said.

Opposing CBI's move to slap additional charges, the counsel said mere hypothetication is not a ground to book the accused for criminal breach of trust.

The court would continue hearing defence counsels' arguments on CBI's plea on Thursday.