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Bofors bubble bursts
HC quashes charges against Hinduja brothers and Swedish firm
S.S. Negi
Legal Correspondent

New Delhi, May 31
In a major relief to Europe-based NRI Hinduja brothers, the Delhi High Court today quashed charges against them in the Rs 64 crore Bofors payoff case, while exonerating the Swedish arms manufacturer AB Bofors as well of the charges of criminal conspiracy and forgery, saying the agency had failed to produce original documents about the alleged nine payments to the brothers and the photo copies of those papers could not be relied upon as authentic evidence.

Lambasting the CBI for the manner in which it had probed the case during the past 14 years at an estimated cost of Rs 250 crore and not been able to procure even the crucial original documents from the Swedish authorities, Mr Justice R.S. Sodhi said. “During the investigation a huge bubble was created with the aid of the media, which, however, when tested by court, burst leaving behind a disastrous trail of suffering.”

“…on the basis of the statements made by the CBI in the court about the documents, no case can be proceeded with in respect of Hinduja brothers — Srichand, Gopichand, Prakashchand — or the Bofors company,” the court said, quashing the proceedings before the trial court against them and as well as the order of the Chief Metropolitan Magistrate framing charges in the case. In a protracted legal battle, the three brothers had left no stone unturned to explore every possible legal remedy available to them in the case since the CBI had filed a chargesheet against them in October 2000.

With this order, the bail bonds and surety bonds executed by Hinduja brothers and the AB Bofors before the trial court also stood quashed, Justice Sodhi ruled. Coming down heavily on the CBI for failing to bring its investigation to a logical conclusion, the court said, “The accused suffered emotionally. Careers — both political and professional — were ruined besides causing a huge economic loss. Many an accused lived and died with a stigma. It is hoped that this elite investigating agency will be more responsible in future.”

Rejecting the photostat copies of the original documents, sent by the Swedish Government’s Prosecutor’s Office via their Ministry of Justice to the CBI through Indian Embassy during the protracted investigation in the highly politically sensitive case, the court said on the basis of such documents the alleged nine payments estimated to be over 14 crore, received by Hinduja brothers’ company Mcintyre Corporation, could not be linked to the Bofors gun deal.

The CBI had alleged that Hinduja brothers who acted as middlemen in the Rs 1437 crore Bofors gun deal, signed in 1986 by the then Rajiv Gandhi Government with Swedish arms manufacturer, were among the main beneficiary of the Rs 64 crore kickbacks along with Italian businessman Ottavio Quattarochhi, who is absconding. The court said that on the basis of two documents -D-292 and D-293 - exhibited by the CBI on record “show that the status of Hindujas was of consultants and not of agents.”

Holding that the duplicates of the original documents did not fulfil the test of Section 78(6) of the Evidence Act, which deals with foreign documents in a criminal case, the Court said that careful analysis of the CBI’s statement about the transmission of the documents, “Shows that the (Swedish) Prosecutor’s Office had in its possession photostat copies and it sent them to the Ministry of Justice, Sweden.”

The court said the document procurement process showed that only change that had taken place during the transmission of these papers to India was that “an initial and seal of the Ministry of Justice has been put thereon but no date.”

“Now under the Evidence Act, I cannot take judicial notice either of the seal or the initial. These too have to be proved by evidence. Moreover, what becomes crystal clear is that the Ministry of Justice has not issued any certified copy of the documents in their possession. There is no such certificate appended to the photo copies nor is there anything to show that the authority, which has put its seal and initials, had the originals in its possession and made the photo copies there from,” the court said.

Under Section 76 of the Evidence Act, a certified copy about the authenticity of duplicate documents when produced before the court in a case was required to be issued by the authority, which were issuing such documents, to be placed before a court of law, Justice Sodhi observed.

The CBI, meanwhile, said that it would examine the judgement and decide about the future course of action, when asked whether an appeal would be filed in the Supreme Court.

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