SPN LEGAL Missive Edition - November & December, 2017
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Edition – November & December, 2017
SPN LEGAL
Missive
Edition – November &
December, 2017
1|Page
Edition – November & December, 2017
TABLE OF CONTENTS
Section Description Page No.
I. COMPANY LAW 3
II. RESERVE BANK OF INDIA (RBI) LAWS 3
III. LABOUR LAWS 7
IV. SECURITIES EXCHANGE BOARD OF INDIA (SEBI) REGULATIONS 11
V. TELECOM REGULATORY AUTHORITY OF INDIA (TRAI) 13
REGULATIONS
VI. CASE LAWS:
i. KEY MATTERS ADJUDICATED BY THE HON’BLE SUPREME 14
COURT
ii. KEY MATTERS ADJUDICATED BY THE HON’BLE HIGH 16
COURTS
iii. KEY MATTERS ADJUDICATED BY THE SPECIAL COURT OF 24
CENTRAL BUREAU OF INVESTIGATION (CBI)
2|PageEdition – November & December, 2017
COMPANY LAW these overdue documents.
After filing documents under this
scheme, the defaulting company shall
CONDONATION OF DELAY SCHEME
seek condonation of delay by filing
2018 [CODS-2018]
form e-CODS 2018 along with a fee of
Rs. 30,000/- as prescribed under the
The Central Government has Companies (Registration Offices and
introduced a scheme namely Fee) Rules, 2014 well before the last
“Condonation of Delay Scheme 2018”
date of the scheme.
[CODS-2018] with a view to give an
opportunity to the non-compliant In case of defaulting companies
defaulting companies to rectify the whose names have been removed
default of filing Annual Financial from the Register of Companies under
Statements and Annual Returns with
Section 248 of the Act and which have
the Registrar of Companies. filed applications for revival under
Section 252 of the Act up to the date
The scheme comes into force with
of this scheme, the Director’s DIN shall
effect from January 01, 2018 and shall be re-activated only upon NCLT’s
remain in force up to March 31, 2018.
order of revival subject to the
company having filed all overdue
The scheme is applicable to all documents.
defaulting companies (other than the
companies which have been struck
off/whose names have been removed RESERVE BANK OF INDIA (RBI)
from the Register of Companies under LAWS
Section 248(5) of the Act). A defaulting
company is permitted to file its COMPOUNDING OF
CONTRAVENTIONS UNDER FEMA
overdue documents which were due
for filing till June 30, 2017 in
[Master Direction dated December 22,
accordance with the provisions of this
2017]
Scheme.
Vide Notification No. FEMA 20(R)/2017-
The DINs of the disqualified directors
RB dated November 07, 2017, the RBI
de-activated at present shall be
issued Foreign Exchange
temporarily activated during the
Management (Transfer or Issue of
validity of the scheme to enable them
Security by a Person Resident Outside
to file the overdue documents.
India) Regulations, 2017, under which
the compounding powers have been
The defaulting company shall file the
delegated to the Regional Offices of
overdue documents in the respective
the RBI to compound certain
prescribed e-Forms paying the
contraventions. RBI has inter alia made
statutory filing fee and additional fee
the following amendments:
payable as per Section 403 of the Act
read with Companies (Registration
Offices and Fee) Rules, 2014 for filing
3|PageEdition – November & December, 2017
i. Power of RBI to compound, without
limitation, the following Vide Notification No. RBI/2017-18/110,
contraventions of Notification No. RBI has mandated the financial
FEMA 20(R)/2017-RB: creditors (regulated by RBI) to submit
financial information and information
Regulation 13.1(1) – Delay in relating to assets in relation to which
reporting inward remittance any security interest has been created
received for issue of shares; to Information Utilities (IU) as per
Regulation 13.1(2) – Delay in filing Insolvency and Bankruptcy Code
form FC(GPR) after issue of shares; (IBC), 2016, in the form and manner
Regulation 13.1(3) – Delay in filing provided under Chapter V of the
the Annual Return on Foreign Insolvency and Bankruptcy Board of
Liabilities and Assets (FLA); India (Information Utilities) Regulations,
Regulation 13.1(4) – Delay in 2017 and put in place appropriate
submission of form FC-TRS on systems and procedures to ensure
transfer of shares from Resident to compliance of the provisions of the
Non-Resident or from Non-Resident Code and Regulations.
to Resident;
LIMITING LIABILITY OF CUSTOMERS
ii. Pre-requisites for Compounding OF CO-OPERATIVE BANKS IN
Process (inter alia): UNAUTHORISED ELECTRONIC
BANKING TRANSACTIONS
In case where adjudication has
been done by the Directorate of [Notification dated December 14,
Enforcement and an appeal has 2017]
been filed under Section 17
(Appeals to Special Director) or Vide Circular no. RBI/2017-18/109, RBI
Section 19 (Appeal to Appellate has taken measures keeping in view
Tribunal) of FEMA, no contravention the increased thrust on IT enabled
can be compounded in terms of financial inclusion and related
Rule 11 of Foreign Exchange customer protection issues, and
(Compounding Proceedings) Rules, considering the recent surge in
2000. The applicant in such case is customer grievances relating to
required to file an undertaking as unauthorised transactions resulting in
per Annex III along with the debits to their accounts/cards. RBI has
compounding application that they laid down directions for reporting of
have not filed any appeal under unauthorized transactions by
Section 17 or 19 of FEMA. customers to banks; limited liability of a
customer, reversal of timelines, board
SUBMISSION OF FINANCIAL approved policy for customer
INFORMATION TO INFORMATION protection; reporting and monitoring
UTILITIES requirements.
[Notification dated December 19, INVESTMENT BY FOREIGN
2017] PORTFOLIO INVESTORS (FPI) IN
4|PageEdition – November & December, 2017
GOVERNMENT SECURITIES MEDIUM for purchase of goods and services
TERM FRAMEWORK – REVIEW across a wider network of merchants
which shall be effective from January
[Notification dated December 12, 18, 2017. Taking into account the
2017] objective of promoting debit card
acceptance by a wider set of
Vide circular RBI/2017-18/108 A.P. (DIR merchants, especially small
Series) No. 14, RBI has increased limits merchants, and ensuring sustainability
for investment by FPIs, for the quarter of the business for the entities involved,
January – March 2018, by INR 64 billion it has been decided to rationalise the
in Central Government Securities MDR for debit cards.
(Central G-Secs) and INR 58 billion in
State Development Loans (SDLs). The The criteria for such rationalization is:
revised limits will be effective from
January 01, 2018. The AD Banks may i. Categorisation of merchants on the
bring the contents of this circular to basis of turnover;
the notice of their constituents and
customers concerned. ii. Adoption of a differentiated MDR
for QR-code based transactions;
i. For Central G-Secs, the limit for
general securities has been iii. Specifying a ceiling on the
increased from INR 1,897 billion to maximum permissible MDR for both
INR 1,913 billion. Whereas, the limit ‘card present’ and ‘card not
for long-term securities has been present’ transactions, and
increased from INR 603 billion to INR
651 billion. iv. The maximum MDR for DCTs shall be
as under:
ii. For SDLs, the limit for general
securities has been increased from a. Small merchants (with turnover of
INR 300 billion to INR 315 billion. upto INR 20 lakh during the
Whereas, the limit for long-term previous financial year): MDR
securities has been increased from shall not exceed 0.40% (MDR cap
INR 93 billion to INR 136 billion. of INR 200 per transaction) for
Physical POS infrastructure
RATIONALISATION OF MERCHANT including online card
DISCOUNT RATE (MDR) FOR DEBIT transactions; MDR shall not
CARD TRANSACTIONS (DCTs) exceed 0.30% (MDR cap of INR
200 per transaction) for QR code-
[Notification dated December 06, based card acceptance
2017] infrastructure;
Vide Circular no. RBI/2017-18/105 b. Other merchants (with turnover
DPSS.CO.PD. No.1633/02.14.003/2017- above INR 20 lakh during the
18, RBI has taken measures to fillip the previous financial year): MDR
acceptance of debit card payments shall not exceed 0.90% (MDR cap
5|PageEdition – November & December, 2017
of INR 1000 per transaction) for of shareholding post conversion of
Physical POS infrastructure debt into equity shall be in
including online card accordance with permissible Foreign
transactions; MDR shall not Direct Investment (“FDI”) limit for that
exceed 0.80% (MDR cap of INR specific sector.
1000 per transaction) for QR
code-based card acceptance ARCs that meet the conditions
infrastructure. mentioned below are exempted from
the limit of shareholding at 26% of post
RBI has reiterated that the banks and converted equity of the borrower
authorized card payment networks company:
shall strictly adhere to the above
directions. Further, banks have to i. The ARC shall be in compliance
ensure that the MDR levied on the with Net Owned Fund (NOF)
merchant shall not exceed the cap requirement of INR 100 crore on an
rates as prescribed above, irrespective ongoing basis;
of the entity which is deploying the
card acceptance infrastructure at the ii. At least half of the Board of
merchant location. Directors of the ARC comprises of
independent directors;
CONVERSION OF DEBT INTO EQUITY
– REVIEW iii. The ARC shall frame policy on debt
to equity conversion with the
[Notification dated November 23, approval of its Board of Directors
2017] and may delegate powers to a
Committee comprising of a majority
In reference to its Circular DNBS (PD) of independent directors for taking
CC.No. 35/SCRC/26.03.001/2013-14 decisions on proposals of debt to
dated January 23, 2014, RBI has, vide equity conversion;
Circular No. DNBR.PD(ARC)CC
No.04/26.03.001/2017-18 dated iv. The equity shares acquired under
November 23, 2017, intimated about the scheme shall be periodically
its review of the limit imposed on valued and marked to market. The
shareholding of the post converted frequency of valuation shall be at
equity of the borrower company least once in a month.
under reconstruction by Asset
Reconstruction Companies (ARCs). It OVER-THE-COUNTER (OTC)
has been decided to exempt ARCs GOVERNMENT SECURITIES
meeting the criteria set out below from TRANSACTION BY FOREIGN
the cap of 26% subject to compliance PORTFOLIO INVESTORS (FPIs) –
with the provisions of the SARFAESI Act, SETTLEMENT PERIOD
2002, Guidelines / Instructions issued by
Reserve Bank of India Act, 1934, [Notification dated November 16,
Companies Act, 2013, SEBI Regulations 2017]
and other relevant Statutes. The extent
6|PageEdition – November & December, 2017
In terms of RBI Circular expedient in the public interest so to
FMRD.DIRD.06/14.03.007/2014-15 do and with a view to put in place
dated March 20, 2015, FPIs are necessary safeguards applicable to
required to settle transactions in outsourcing of activities by NBFCs.
Government Securities in the OTC
market on a T+2 basis (i.e., two As per the directions, NBFCs are
business days after the transaction advised to conduct a self-assessment
date). Vide Circular dated November of their existing outsourcing
16, 2017, the RBI has now decided to arrangements and bring these in line
permit FPIs to settle OTC secondary with the aforesaid directions within two
market transactions in the months from the date of this Circular.
Government Securities either on T+1
(i.e., one business day after the RISK MANAGEMENT AND INTER-
transaction date) or T+2 (i.e., two BANK DEALINGS – SIMPLIFIED
business day after the transaction HEDGING FACILITY
date) basis, as earlier announced in
[Notification dated November 09, 2017
the Statement of Developmental and
Regulatory Policies of the fourth Bi-
monthly Monetary Policy Statement for RBI has requested the attention of
2017-18 dated October 04, 2017. RBI Authorized Dealers Category-I banks
has suggested that it may be ensured (AD Banks) to the simplified hedging
that all trades are reported on the facility under the Foreign Exchange
trade date itself. All other existing Management (Foreign Exchange
conditions for settlement of Derivative Contracts) Regulations,
transactions in Government Securities 2000, and various other Regulations.
remain unchanged. The facility is being introduced with a
view to simplify the process for
DIRECTION ON MANAGING RISKS hedging exchange rate risk by
AND CODE OF CONDUCT IN reducing documentation
OUTSOURCING OF FINANCIAL requirements, avoiding prescriptive
SERVICES BY NON-BANKING stipulations regarding products,
FINANCIAL COMPANY (NBFC) purpose and hedging flexibility, and to
encourage a more dynamic and
[Notification dated November 09, efficient hedging culture.
2017]
LABOUR LAWS
Vide Circular No. DNBR.PD.CC.No.090/
STANDARD OPERATING PROCEDURE
03.10.001/2017-18, RBI has issued
FOR SETTLEMENT OF CLAIMS IN
significant directions, in exercise of its
EPFO —SUBMISSION OF ORIGINAL
powers conferred under Section 45L
CANCELLED CHEQUE WITH OFFLINE
(Power of RBI to call for information
CLAIM FORMS
from financial institutions and to give
directions) of the RBI Act, 1934, after
[Notifications dated December 13,
being satisfied that it is necessary and
2017 and December 20, 2017]
7|PageEdition – November & December, 2017
purpose, the members must have a
Vide Notification No. UAN number which is linked with their
Manual/9(3)2016/Settlement of current PF account. Further, the
Claims/2100, the Employees’ Provident member is required to submit his ID &
Fund Organization (“EPFO”) has taken Mobile number registered at UAN
steps to help render better services to member portal. Please note that the
the claimants for settlement for their members can enter details of as many
claims and maximize Aadhar based as ten previous PF account numbers.
payment to avoid fraudulent claims. In The said provision of linking PF account
case the claimant’s bank account is is available at the MIS portal
not linked with Aadhar, he/she is login>>>UAN>>Previous PF Account
required to submit authentic linking.
documents to establish the
correctness of the bank account EPFO SPECIFIES DATES FOR ONLINE
details along with the claim. In this FILING OF RETURNS BY THE
context, the claimant is required to EXEMPTED ESTABLISHMENTS
submit the below mentioned
documents irrespective of the amount [Notification dated December 01,
of claim, including, copy of cancelled 2017]
cheque in original which must contain,
claimant’s name, bank account Vide Circular No. C-Ex/Ex-
number & IFS Code of the bank Return/2014/19536, EPFO has modified
branch printed on it). the due date of filing online returns by
If the claimant does not have cheque exempted establishments i.e. an
facility on his/her bank account, the establishment to which the Act applies
claimant is required to submit a self- but, in the opinion of the appropriate
attested copy of the first page of government, the rules of such
passbook clearly showing the his/her establishments are not less favourable
name printed on it. than those mentioned in the EPF
Act/Rules. The new date of filing online
“ONE EMPLOYEE, ONE EPF return shall be “on or before 25th of the
ACCOUNT” FACILITY TO month following the month to which it
CONSOLIDATE MULTIPLE PF relates”.
ACCOUNTS OF AN EMPLOYEE
CRÈCHE RULES TO BE FRAMED
[Notification dated December 01, UNDER AMENDED MATERNITY
2017] BENEFIT ACT,1961
Vide Notification No. R-1/ OEOA/ 2016, [Circular dated November 17, 2017]
EPFO has come up with a new facility
of merging all PF accounts of its Vide Circular F.S No S-
members, including merging their 36012/03/2015/SSI, for the effective
previous PF account with the current implementation of rules on crèche
UAN activated PF account. For this facility provision, the Ministry of Labour
8|PageEdition – November & December, 2017
has given directions to appropriate for auto-transfer. The members have
State Governments to frame as well as the option of terminating auto transfer
notify amenities and facilities required either online or by approaching the
to be provided by the employer in the nearest EPFO office within a limit of ten
said crèche. days of receipt of SMS informing the
member of auto initiation of transfer
REVISED PROCEDURE FOR AUTO request at unified portal.
TRANSFER OF ACCOUNTS OF A
MEMBER ON CHANGE OF WOMEN AND CHILD DEVELOPMENT
ESTABLISHMENT MINISTRY EXTENDS ITS ONLINE
FACILITY- SHe-BOX FOR ONLINE
[Notification dated November 15, COMPLAINTS OF SEXUAL
2017] HARASSMENT
Vide Notification No. IS/4 (1) 2017/2715 [Press Release dated November 08,
dated November 15, 2017, EPFO has 2017]
introduced the provision of Auto
Transfer of accounts of a member on The Ministry for Women and Child
change of employment in its Unified
Development (“WCD Ministry”) has
Portal/EPFO Application software. The
said provision of auto transfer of extended its electronic mechanism for
account is available for those filing online complaints against sexual
members whose UAN and Aadhaar harassment at workplace, titled Sexual
number are entered and verified by Harassment electronic-Box (SHe-Box)
the present employer against the to women in private sector as well,
existing details as available against the which provides a single window
UAN. In addition to the above,
access to every women irrespective of
following pre-conditions must also be
fulfilled to be marked for auto-transfer her employment status. Once a
including: complaint is filed by an aggrieved
women through SHe-Box the same will
i. Aadhaar number of a member is be submitted to the concerned
seeded and verified against the authority (LCC/ICC) of the
UAN at the previous establishment; establishment. In case, an aggrieved
woman has already filed her
ii. Member’s date of joining, date of complaint with the concerned
exit and reason of exit should be authority, i.e, to ICC or LLC, as the
available in respect of previous case maybe, she will also have the
employment; option of filing such complaint again
through SHe-Box and such complaints
iii. UAN is activated and Mobile will be monitored by WCD Ministry.
number is linked to the same.
The aggrieved women is required to
The procedure for auto transfer will be
file a complaint on the following:
initiated once the new employer
link http://shebox.nic.in.. Once the
makes the payment in the account of
complaint is filed, she will be track the
said member against the UAN flagged
status of the complaint online.
9|PageEdition – November & December, 2017
which carries on, any business,
MAHARASHTRA SHOPS AND trade, manufacture etc.
ESTABLISHMENTS (REGULATION OF
EMPLOYMENT AND CONDITIONS OF iii. Registration of Establishment: The
SERVICE) ACT, 2017 (“New Act”) New Act provides for a new
mechanism of registration of
[Press Release dated November 07, establishment which shall be done
2017] online within 60 (sixty) days from
commencement of the New Act or
By virtue of Section 39 of the New Act, commencement of business. If the
Maharashtra Shops and Establishments authority is satisfied with the
Act, 1948 (Old Act) shall stand repeal information received, it shall issue as
from the date of the enforcement of Labour Identification Number
the New Act. (“LIN”) along with the Registration
Certificate.
The key highlights of the New Act are
inter alia as under: iv. Increase in the overtime limit: Under
the Old Act, the total number of
i. Applicability: overtime was 6 (six) hours in a week
which has been amended in the
The New Act is applicable to every New Act which provides that
establishment employing 10 (ten) or “the total number of overtime hours
more wokers. for each worker shall not exceed
125 (one hundred and twenty five)
However, establishments employing hours in a period of three months.”
less than 10 workers are required to
send an intimation regarding the v. Obligation to provide crèche
commencement of their business to facilities: Under the New Act
the Facilitator appointed under the provides that, every establishment,
New Act, by submitting an online wherein 50 (fifty) or more workers
application in the prescribed form. are employed, there shall be
provided and maintained a suitable
ii. Definitions room or rooms as crèche for the use
of children of such workers. In case,
o The New Act has widened the the group of establishments, so
definition of employer and decide to provide a common
employee (substituted the term crèche facilities within a radius of 1
worker for the term employee). (one) km, the same shall be done
o The New Act no more defines the with the approval of the designated
term commercial establishments authority.
separately and has also amended
the definition of the term vi. Casual Leave: The New Act
Establishment which means and provides that every worker is
includes interalia, an establishment entitled to 8 (eight) days of casual
leave in a year.
10 | P a g eEdition – November & December, 2017
in the case of a continuing
vii. Earned Leaves and Accumulation of contravention, with an additional
Earned Leave: The New Act fine which may extend to INR 2,000
provides that, every worker who has (Rupees Two Thousand) every day.
worked for a period of 240 (two
hundred and forty) days or more SECURITIES AND EXCHANGE
shall be allowed paid leave for a BOARD OF INDIA (SEBI)
number of days calculated at the
rate of one day for every 20
REGULATIONS
(twenty) days of work performed
during the previous year. The Old EXEMPTION APPLICATION FOR
Act provides for the accumulation MAKING AN OFFER OF ACQUIRING
of maximum of 42 days of earned SHARES
leave. The New Act has increased
the accumulation of earned leaves [Notification date December 22, 2017]
to 45 days.
Vide Notification No.
viii. Fesitval Holidays: The New Act has SEBI/HO/CFD/DCR1/CIR/P/2017/131,
increased the festival holidays from the SEBI is empowered under SEBI
4 to 8 and now provides that (Substantial Acquisition of Shares and
workers are entitled to 8 holidays Takeovers) Regulations, 2011, to grant
including 26th January, 1st May, 15th exemption from the obligation to
August, 2nd October and such other make an offer for acquiring shares by
holidays agreed between the the acquirer, for which the acquirer is
employer and workers. required to file an application with SEBI
supported by duly sworn affidavit,
ix. Opening and Closing Hours of giving details of the proposed
Establishment: The New Act acquisition along with the grounds for
provides that State Government exemption. In order to ensure the
shall issue separate notification to fix uniformity in such applications, SEBI
the opening and closing hoours for has introduced a standard format for
different establishments. An application, given under Annexure A
establishment can be kept open for of the said Regulation.
business on all days in a week but
every worker shall be allowed
DISCLOSURE OF HOLDING OF
weekly holiday of at least 24
SPECIFIED SECURITIES AND HOLDING
consecutive hours of rest.
OF SPECIFIED SECURITIES IN
DEMATERIALIZED FORM
x. Penalties: The New Act has
enhanced the penalty for
[Notification dated December 19,
contravention and provides that
2017]
whosoever contravenes the
provision of the New Act or rules,
Vide Notification No.
shall be punishable with a fine of
SEBI/HO/CFD/CMD/CIR/P/2017/12,
INR 100,000 (Rupees One Lakh) and
11 | P a g eEdition – November & December, 2017
amendments have been made in appointment after a cooling-off
Circular No. CIR/CFD/CMD/13/2015. period of 3 (three) years subject to
Clause 2 (c) which provides that “the the conditions provided in rthe
details of the shareholding of the Regulations. Existing independent
promoters and promoter group, public trustees and independent directors
shareholder and non-public non- will hold office for a maximum of 10
promoter shareholder must be (ten) years.
accompanied with PAN Number (first
holder in case of joint holding). Further, ii. Tenure of Auditor: An auditor will
the shareholding of the promoter and hold office for a period not more
promoter group, public shareholder than 2 (two) terms of maximum 5
and non-public non-promoter (five) consecutive years. Such
shareholder is to be consolidated on auditor may be re-appointed after
the basis of the PAN and folio number a cooling off period of 5 (five) years,
to avoid multiple disclosures of subject to the conditions mentioned
shareholding of the same person.” therein.
ENHANCING FUND GOVERNANCE FOR ONLINE REGISTRATION MECHANISM
MUTUAL FUNDS (MFs) AND FILING SYSTEM FOR CLEARING
CORPORATIONS
[Circular dated November 30, 2017]
[Circular dated November 03, 2017]
Vide Circular No. SEBI/HO/IMD/DF2/
CIR/P/2017/125, in order to strengthen Vide Circular No.
the governance of MFs and to protect
SEBI/HO/MRD/DRMNP/CIR/P/2017/119,
the interest of investors in securities, the
SEBI (Mutual Funds) Regulations, 1996, SEBI has introduced an online digital
has made it mandatory to appoint procedure for the applicants seeking
independent trustees of MFs registration / renewal as a Clearing
(“independent trustee”) and Corporation under Securities Contracts
independent directors of Asset (Regulation) (Stock Exchanges and
Management Companies (“AMCs”) Clearing Corporations) Regulations,
(“independent directors”) and put in
2012. For this purpose the applicant is
place a framework for the tenure of
independent trustees as well as required to submit their applications
directors and other provisions for online only, through SEBI Intermediary
auditors in the following manner: Portal at https://siportal.sebi.gov.in.
i. Tenure of Independendent Auditor Applicants may also file Annual
and Independent Director: An Financial Statements and Returns,
independent trustee and Monthly Development Report, Rules,
independent director will hold Bye-laws, etc., through online filing
office for a maximum of 2 (two) systems.
terms, with each term not
exceeding a period of 5 (five)
consecutive years. However, such
individuals will be eligible for re-
12 | P a g eEdition – November & December, 2017
DIPPING CHARGE (AMENDMENT)
TELECOM REGULATORY REGULATIONS, 2017
AUTHORITY OF INDIA (TRAI)
[Notification dated December 18,
REGULATIONS
2017]
PRESS RELEASE ON MAKING ICT Vide Notification No. 15-01/2016-F&EA,
ACCESSIBLE FOR PERSONS WITH amendments have been made in the
DISABILITIES Telecommunication Mobile Number
Portability Per Port Transaction Charge
[Press Release dated December 20, and Dipping Charge Regulations,
2017] 2009. Considering the increase volume
of porting requests in the past two
Vide Press Release No.107/2017, TRAI years, the Authority is of the view that
has released recommendations on the present ceiling of INR 19/- is quite
making Information and high as compared to the cost and
Communication Technology (“ICT”) volumes of the transaction involved.
accessible for the persons with The Authority has, therefore, decided
disabilities (“PwDs”). TRAI has raised a that the upper ceiling for per port
concern that PwDs does not get the transaction charge may be
chance to access ICT due to amendment from INR 19/- and be
unaffordable prices of the equipment reduced to INR 4/-.
or due to unavailability of required
features in the technology that can TRAI RELEASES RECOMMENDATIONS ON
make it user friendly for PwDs. The NET NEUTRALITY
recommendations aim to identify key
areas that require policy intervention [Press Release dated November 28,
and understand barriers being faced 2017]
by the PwDs in accessing telecom and
broadcasting services. Also, it has Vide Press Release No. 100/2017, TRAI
been discussed that handset makers has released recommendations on
must manufacture handsets that Net Neutrality which provides that
should be easily used by the disabled telecom service provider shall not
with assistive technology features such discriminate the contents of the
as hearing, visual aids and emergency telecom services in any manner,
buttons. In addition, suggestions have including the services of providing
been made that billing and pricing internet access should not be
needs to be provided in a form that is dicrciminated on the basis of content
accessible by PwDs. (such as video, calls, email, and cloud
services), and the means of its access.
TELECOMMUNICATION MOBILE Provided, the Department of
NUMBER PORTABILITY PER PORT Telecommunications (DoT) is given
TRANSACTION CHARGE AND power to exempt certain services from
the principle of discriminatory
13 | P a g eEdition – November & December, 2017
treatment including voice over IP, 1952 and that a writ of mandamus be
television over IP, and tele-surgery issued to the Central Bureau of
maybe identified as specialized Investigation (CBI). The Petitioner
services. Further, Content Delivery further sought registration of FIR
Networks which deliver content within against the Respondent for offence
the network of the telecom service punishable under Section 7 of the Act
provider without going through public read with Sections 153A, 295, 295A,
internet are exempt from the principle 499 and 500 of the Indian Penal Code
of non-discriminatory treatment. read with Section 4 of the Indecent
Representation of Women (Prohibition)
KEY MATTERS ADJUDICATED Act, 1986.
BY THE HON’BLE SUPREME The Respondent contended that the
COURT Petitioner had already filed a similar
petition before the Supreme Court
i. The Supreme Court held that and the Court had dismissed the
same.
comments by people in public
offices on an issue of Observations of the Court:
certification already pending When a matter is pending or going to
before the statutory authority be dealt with by the CBFC, no one
holding any post of public
with respect to the film titled
responsibility should comment on how
‘Padmavati’ is unwarranted the application for certification is to be
and amounts to violation of processed. That would tantamount to
creating a sense of prejudice in the
rule of law
mind of CBFC.
MANOHAR LAL SHARMA vs. SANJAY Further, when the matter is pending for
LEELA BHANSALI grant of certification, if the people in
public offices comment on the issue of
Hon’ble Judges: Deepak Mishra, Dipak certification pending consideration
Mishra, A.M Khanwillkar, JJ. before the statutory authority, that
Decided on: 28.11.2017 amounts to violation of the rule of law.
Brief Facts: While emphasizing on the freedom of
speech and expression of a citizen, the
This writ petition was filed in the nature Court observed that a story portrayed
of PIL under Article 32 of the on celluloid or a play enacted on a
Constitution of India seeking that a film stage or a novel articulated on a
titled “Padmavati” should not be broad and large canvas has many a
exhibited in other countries without layer of freedom of expression of
obtaining the requisite certificate from thought that requires innovation, skill,
the Central Board of Film Certification craftsmanship and above all,
(CBFC) under the Cinematograph Act, individual originality founded on the
14 | P a g eEdition – November & December, 2017
gift of imagination or reality
transformed into imagination or vice NIKESH TARACHAND SHAH vs.
versa. The creative instinct is to be UNION OF INDIA & ANR.
respected and has the inherent
protective right from within which Hon’ble Judges: R.F. Nariman, Sanjay
arises artistic license. Therefore, Kishan Kaul, JJ.
artistic license should be put on a high
pedestal but the same has to be Decided on: 23.11. 2017
judged objectively on a case-to-case
Brief facts:
basis.
The constitutional validity of Section 45
Held: of the Prevention of Money
Laundering Act, 2002 was challenged.
The Court, while dismissing the present
petition, cautioned the Petitioner to be
Section 45 (1) of the Act imposed twin
careful in future.
conditions for grant of bail where an
The Court, with respect to Sections 499 offence was punishable with
(defamation) and 500 (punishment for imprisonment of more than three years
defamation) of the Indian Penal under Part A of the Schedule of the
Code, held that the police has no role Act. These conditions were that the
in it. As far as the other offences were Public Prosecutor must be given an
concerned, the Court held that it is opportunity to oppose any application
unfathomable how any offence is for release on bail and that the Court
made out and there is no basis for the must be satisfied, where the Public
Court to direct registration of an FIR. Prosecutor so opposes the application,
The pleadings are absolutely that there are reasonable grounds for
vexatious and untenable in law. The believing that the accused is not guilty
CBFC is expected to take decisions of such offence, and that he is not
with utmost objectivity as per the likely to commit any offence while on
provisions contained in the Act, the bail.
rules framed thereunder and the
guidelines. Observations of the Court:
The expression “such offence” would
ii. The Apex Court struck off be relatable only to an offence in Part
Section 45 of the Prevention of A of the Schedule. Thus, if Section 45 is
to be applied, the Court must be
Money Laundering Act, 2002
satisfied that there are reasonable
holding that the twin grounds for believing that he is not
conditions imposed by it for guilty of the offence under Part A of
the Schedule, which is not the offence
release on bail is violative of
of money laundering, but which is a
Artciles 14 and 21 of the Indian completely different offence.
Constitution
15 | P a g eEdition – November & December, 2017
Section 45, thus, required such Supreme Court in which bail has been
conditions to be met, not for offences denied, because of the presence of
under the Act but for offences the twin conditions contained in
punishable with imprisonment of three Section 45, will go back to the
years or more, under Part A of the respective Courts which denied bail.
Schedule. All such orders be set aside, and the
cases remanded to the respective
Part B referred to some heinous Courts be heard on merits, without
offences under the Indian Penal Code, application of the twin conditions
to which conditions of Section 45 were contained in Section 45 of the Act.
not applicable till the value involved Considering that persons are
was Rs. 1 crore or more. Vide an languishing in jail and that personal
amendment in 2012, the entire Part B liberty is involved, all these matters be
was transplanted into Part A as a result taken up at the earliest by the
of which the same offenders in respective Courts for fresh decision.
different cases ended up having
different results qua bail depending KEY MATTERS ADJUDICATED
upon whether or not Section 45
applied. The fact that arbitrary,
BY THE HON’BLE HIGH COURTS
discriminatory and unjust results arose
i. The Delhi High Court held
depending upon whether Section 45
applied or not, directly violated that if an agreement has an
Articles 14 and 21 of the Constitution of exclusive jurisdiction clause,
India.
Courts in the venue of
This made the procedure arbitration also cannot be
for bail harsh, burdensome, wrongful approached
and discriminatory depending upon
whether a person is being tried for an
offence which also happens to be an CVS INSURANCE AND INVESTMENTS
offence under Part A of the Schedule, vs. BIPUL IT INFRASOFT PRIVATE
or an offence under Part A of the LIMITED
Schedule together with an offence
Hon’ble Judge: Yogesh Khanna, J.
under the 2002 Act. The circumstance
had nothing to do with the offence of [High Court of Delhi]
money laundering.
Decided on: 08.12.2017
Held:
Brief facts:
Section 45(1) of the Prevention of The parties entered into an Agreement
Money Laundering Act, 2002, insofar and had some disputes regarding
as it imposes two conditions for release payments. Arbitration clause in the
on bail is unconstitutional as it violates Agreement was invoked by the
Articles 14 and 21 of the Constitution. Petitioner, who instituted this petition
All the matters before the Hon’ble
16 | P a g eEdition – November & December, 2017
under Section 11 of the Arbitration and (a) there shall be only one seat of
Conciliation Act, 1996 for arbitration though venues may be
determination as to which Court shall different;
have the jurisdiction to adjudicate the
disputes between the parties. While (b) where the seat of arbitration is
the venue of arbitration was stated to fixed, only such Court shall have
be Noida/ New Delhi, the Courts at exclusive jurisdiction;
Noida were given the exclusive (c) where the seat/place of arbitration
jurisdiction under the arbitration is fixed, reference may be made to
clause. Section 20(1) (parties are free to agree
Issue: on the place of arbitration) and 20(2)
(where the parties fail to choose the
Where shall be the seat of the place of arbitration, the place of
arbitration, viz. Delhi or Noida, when arbitration shall be determined by the
the Agreement between the parties arbitral tribunal having regard to the
gave exclusive jurisdiction to the courts circumstances of the case and
at Noida? convenience of the parties) of the
Act;
Observations of the Court:
(d) venue relates to convenience of
The arbitration clause of the parties.
Agreement lays down the venue of
arbitration and not the seat of Held:
arbitration. Therefore, there cannot
be two or more seats of arbitration The Agreement relates to sublease of
though the venue of arbitration may a Unit in Noida, the Agreement was
depend upon the convenience of the executed at Noida and was to be
performed at Noida only. The stamp
parties as is reflected in the arbitration
clause keeping Delhi and Noida as the paper on which the Agreement was
venue for arbitration and giving executed pertained to Uttar Pradesh;
exclusive jurisdiction to the courts of payments were also required to be
Noida. made pursuant to the Agreement at
Noida. The mere fact that the
While referring to a catena of registered office of the Respondent is
judgments, the Court observed that in Delhi will not confer jurisdiction to
where it was held that where the the Courts of Delhi. Moreover, the
ouster is included in an Agreement parties had agreed to the exclusive
between the parties, it conveys the jurisdiction of Courts at Noida.
clear intention to exclude the
jurisdiction of courts other than those The mere fact that there being no
mentioned in the concerned clause. Court in Noida would not confer the
jurisdiction upon the Courts at Delhi.
The Court laid down the following When the Agreement refers to the
principles : venues of arbitration at Noida/New
Delhi, it relates only to the
convenience of parties in holding
17 | P a g eEdition – November & December, 2017
arbitral hearings and does not in any leading of secondary evidence in
way confer jurisdiction upon Delhi respect of a gift deed was disallowed.
Courts.
Issue:
While dismissing the petition, the Court
held that in light of an exclusive
Whether any application seeking
jurisdiction clause in relation to the
permission to lead secondary
arbitration proceedings, which
evidence is a statutorty requirement
excludes the jurisdiction of all other
under Section 65 of the Indian
Courts, the application would only lie
Evidence Act, 1872?
before the High Court exercising
jurisdiction over Noida, Uttar Pradesh Observations of the Court:
and not before the Delhi Courts.
The Court followed the law laid down
in the case of Indian Overseas Bank vs.
ii. The High Court of Bombay Triokal Textile Industries & Ors. wherein
held that there is no need to it was observed that such an
application or leave was not only
seek permission for leading
unnecessary but misconceived. It is
secondary evidence before always open to the party to lead
the trial court secondary evidence before the trial
court recording evidence or hearing
the matter without filing such an
KARTHIK GANGADHAR BHAT vs.
NIRMALA NAMDEO WAGH & ANR. application.
Hon’ble Judges: G.S. Patel, J. Such applications, if disallowed, lead
to more complications as the
[High Court of Bombay] evidence in question is not considered
at all, which causes grave injustice to
Decided on: 03.11.2017 the parties.
Brief facts:
Further, there is no provision in the Civil
This writ petition was filed against the Procedure Code, 1908 or the Evidence
order of trial court partly disallowing an Act, 1872 for any such application.
application under Section 65 (cases in Section 65 does not speak of any
which secondary evidence relating to ‘application’ at all. It only speaks of
documents may be given) of the the nature of the evidence adduced
Indian Evidence Act, 1872 seeking as secondary evidence.
permission for proving the contents of
a lease deed through secondary Held:
evidence.
Such applications for seeking
permission to lead secondary
While leading secondary evidence
evidence are misconceived and not
with respect to a certified copy of a
maintainable. The leave is completely
registered lease deed was permitted,
18 | P a g eEdition – November & December, 2017
unnecessary and a party may always for the US, the Respondent No. 2 and
place before the trial court secondary the minor daughter went missing. The
evidence as contemplated by the Petitioner tried contacting the
Evidence Act without seeking such Respondent No. 2 but in vain. The
leave through an application. Petitioner had to leave for the US as his
tickets were pre-booked and moved
iii. The High Court of Delhi held an emergency petition for protection
that ‘best interest of child’ and possession of his minor daugter in
the US Court. Notice of the said
cannot mean only the love
proceedings was sent to the
and care of the mother Respondent No. 2.
The Respodent No. 2 filed a petition
KG vs. STATE OF DELHI & ANR. under section 13 (1) of the Hindu
Marriage Act, seeking dissolution of
Hon’ble Judges: Vipin Sanghi and
marriage on the ground of cruelty,
Deepa Sharma, JJ.
along with an application seeking a
[High Court of Delhi] restraint order against the Petitioner
from taking away their daughter from
Decided on: 16.11.2017 the jurisdiction of the Indian Courts,
which was dismissed.
Brief facts:
The US Court passed an order giving
Vide this writ petition, the Petitioner interim sole custody of the minor child
sought issuance of a writ of Habeas to the Petitioner and directing the
Corpus for production of his minor Respondent No. 2 to immedialtely
daughter, a permanent resident and return to the residence located in
natural born citizen of the United Illinios, USA.
States. The Petitioner additionally
sought a direction for return of his Contentions of the parties:
daughter to the jurisdiction of Courts in The Petitioner inter-alia contended
the USA in compliance with the Order that (i) the Respondent No. 2 had
passed by the Court of Illinois, USA. The
planned well in advance to abduct
child was under the custody of her their daughter by vanishing along with
mother, Respondent No. 2. their daughter from her parental house
The Petitoner and Respondent No. 2 and was, thus, involved in inter-
got married in 2010 in New Delhi parental child removal/abduction; (ii)
and in 2014, a daughter was born out the Respondent No. 2 was completely
of the wedlock. The parties along with unresponsive towards the need of the
the child have been domiciled in the child and chose not to attend the
State of Illinois. proceedings in the US Court despite
the notice being served on her: (iii) the
In 2016, the Petitioner and Respondent Respondent No. 2 concealed the
No. 2 visited New Delhi for a short trip. material fact of the child being a US
When the family was about to leave citizen from the Family Court; (iv) the
19 | P a g eEdition – November & December, 2017
mere presence of the minor child who of the primary care giver, i.e. the
came for a short trip in Delhi did not mother.
confer any jurisdiction upon Courts in
India. Further, the parties were not The allegations levelled by the
domiciled in India and, therefore, Respondent No. 2 were not proved
Hindu Marriage Act was not and per se did not suggest any grave
applicable to the parties. undesirable conduct on part of the
Petitioner or his family.
The Respondent No. 2, on the other
hand, inter-alia contended that (i) the The decision of the Respondent No. 2
relations between the parties were to stay back in India was entirely
battling with broken marriage and the personal to her, and her alone and
Petitioner subjected her to sexual that the best interest of the minor child
had been sidelined by her.
intercourse against her wishes; (ii) the
Petitioner also concealed the fact that
The child’s natural environment was
he had filed a petition for dissolution of
marriage before the US court pursuant the US and there was no reason why
the child should be be uprooted from
to his return to the US from India; (iii)
the environment in which she was
where the welfare of the child is at
stake, the child’s welfare should naturally growing up.
always prevail over the comity of
Held:
Courts; (iv) since the marriage
between the parties was soleminized The Court directed the mother to
in Delhi, the Courts at Delhi had the return to the US along with her minor
jurisdiction to entertain and try the child. The Court further directed the
dispute. Petitioner to bear the expenses of
accommodation for the Respondent
Observations of the Court:
No. 2 and the child in the vicinity of the
All decisions regarding the child should matrimonial home as well as legal
be founded on the primary expenses till the time the Respondent
consideration that they are in the best No. 2 is unable to find a suitable job for
interest of the child and help develop herself or is provided legal aid by the
the child to his/her full potential. It is State.
essential that the child should receive
It would be for the Courts in USA to
the love, care and attention of both
eventually rule on the aspect
the parents and not just one of them,
concerning the financial obligations
who may have decided on the basis
and responsibilities of the parties
of his/ her differences with the other
towards each other and towards the
spouse to re-locate to a different
minor child, independent of any
country.
directions issued by this Court in this
The expression “best interest of child” is regard.
wide in its connotation. It cannot be
read as being only the love and care
20 | P a g eEdition – November & December, 2017
iv. The Delhi High Court held (Application to Magistrate) of the
that husband cannot deny his Protection of Women from Domestic
Violence Act, 2005 (“DV”) against the
duty to maintain his wife and Petitioner and her in-laws, along with
child, neither when the wife an application under Section 23 (2)
is earning sufficiently well (Power to grant interim and ex-parte
orders) of the DV Act, to which the
nor after dissolution of
Magistrate directed the Petitioner to
marriage pay interim maintenance of Rs.
40,000/- per month towards
maintenance of the wife, minor child
SUKHJINDER SINGH vs. HARVINDER as well as alternate accommodation,
KAUR if any.
Hon’ble Judge: I.S. Mehta, J. Issue:
[High Court of Delhi] Whether under given facts and
circumstaces, the Respondent is
Decided on: 10.11.2017 entitled to maintenance?
Brief facts: Contentions of the parties:
The instant Revision Petition arose from
The Petitioner inter-alia contended
an impugned order passed by the
that (i) the Respondent is a well
Metropolitan Magistrate directing the
educated lady and was previously
Petitioner husband to pay
earning sufficiently and is intentionally
maintenance to the Respondent wife
not taking up a job; (ii) no cruelty or
as well as their child. The same appeal
harassment was ever caused by the
was earlier dismissed by the Sessions
Petitioner, therefore, the impugned
Court.
order was rendered in a mechanical
The marriage between the parties manner; (iii) since the mother of the
was solemnized in 2009. Out of the Petitioner is suffering from cancer since
wedlock, a male child was born in 2009, the Petitioner has to look after
2013. During the Respondent’s stay at her and also has an additional
the matrimonial house, the in-laws of responsibility towards his unmarried
the Respondent started taunting and sister, as he is the sole bread earner in
commenting about fewer dowries and the family.
started demanding a luxury car. The
Respondent, after being humiliated in The Respondent, on the other hand,
such a manner, shifted to her parental contended that she was unable to
home, along with the minor child, and maintain herself and the child and the
has been residing there since 2014. Petitioner was under a legal obligation
to maintain them.
Subsequently, the Respondent filed an
application before the Metropolitan Observations of the Court:
Magistrate under Section 12
21 | P a g eEdition – November & December, 2017
The Petitioner cannot shy away from RAMESHDAYALAL SHAH vs. STATE OF
his duty to maintain his wife as well as MAHARASHTRA & ORS.
the minor child, except in the case of
denial of existence of marriage and Hon’ble Judges: Ranjit More, Shalini
denial of paternity of his minor child. It Phansalkar-Joshi, JJ.
is the responsibility of the parents to [High Court of Bombay]
look after the education of the child
and his status of living within their Decided on: 06.12.2017
means. The fact that the spouse, with
This writ petition was filed by the
whom the child is living, has sufficient
Petitioner/ Accused for quashing of FIR
source of income does not absolve
which was registered at the instance
the other spouse from his responsibility
of the Respondent No. 3 against the
to maintain the child. A decree of
Petitioner and eleven other co-
divorce does not free the husband
accused for offences punishable
from his duty to maintain the wife and
under Sections 418 (Cheating with
child.
knowledge that wrongful loss may
An act of domestic violence, once ensue to person whose interest
committed, a subsequent decree of offender is bound to protect), 420
divorce will not absolve the liability of (Cheating and dishonestly inducing
the husband from the offence delivery of property), 465 (Punishment
committed or to deny the benefit to for forgery), 467 (Forgery of valuable
which the aggrieved person/wife is security, will, etc.), 468 (Forgery for
entitled to under the DV Act, including purpose of cheating), 471 (Using as
monetary relief. genuine a forged document or
electronic record), 477 A (Falsification
Held: of accounts), 506 (2) (Punishment for
criminal intimidation) read with 120B
The Court dismissed the instant (Punishment for criminal conspiracy) of
Revision Petition filed by the Petitioner the Indian Penal Code.
and the order passed by the Sessions
Court was upheld. The Court further Brief facts:
directed the trial court to dispose off
the application under Section 12 of The Respondent No. 3, in pursuance of
the DV Act within six months. various negotiations and
representations, agreed to invest a
v. The Bombay High Court substantial amount of his funds in the
company of the Petitioner and
held that when dispute is of a
entered into a Share Holding
civil nature, giving its Agreement whereunder he was to be
proceedings a criminal appointed on the Board of Directors
and designated as the Vice Chairman
colour amounts to abuse of
of ETCO Denim Private Limited and
the process of law entitled to receive remuneration. All
important decisions of the Company
22 | P a g eEdition – November & December, 2017
were to be taken jointly by him and Board as also arbitral proceedings.
the Petitioner. Only after he failed to get the reliefs in
other forums and in order to recover
However, the directors and financers the amount which he could not
of ETCO Denim did not keep their recover in the civil proceedings, the
promises and failed to honour their Respondent No. 3 resorted to criminal
obligations and cheated him. process. Therefore, the present FIR is
liable to be quashed as none of the
The Respondent No. 3 further alleged alleged offence is made out and the
that the Petitioner in connivance with criminal proceedings are raised mala
other applicants and banks, fidely.
committed criminal breach of trust
and cheated him to the tune of Rs. The Respondent No. 3, on the other
94.13 crores in respect of the hand, contended that the contents of
investments made by him and his FIR clearly reveal commission of
group companies in ETCO Denim. cognizable offences like cheating,
Hence, FIR was lodged against the fabrication of accounts, etc. and
Petitioner and other co-accused. merely because civil proceedings are
also resorted to, the complaint cannot
Issues: be quashed at the threshold itself.
Whether the dispute between the Observations of the Court:
parties is predominantly of a civil or
criminal nature, so as to recover the The matter entirely pertains to civil
amount from the Petitioner? jurisdiction and not even prima facie
case is made out in the complaint.
Whether in the given facts and
circumstances, the present FIR is laible The complaint clearly gave an
to be quashed? impression that it was primarily a case
where the Respondent No. 3 was
Contentions of the parties: alleging breach of the terms and
conditions of the Share Holding
The Petitioner contended that a
Agreement on the ground that the
perusal of the complaint clearly
Petitioner was not acting in
reveals that the entire dispute is arising
accordance with the Agreement and
out of the Share Holding Agreement
not making the payments due to him.
entered into between the parties and,
therefore, the dispute is predominantly
On the basis of mere breach of the
of a civil nature. Hence, availing
Agreement, it would not be possible to
criminal remedy to settle the same is a
hold that the Petitioner had since the
gross abuse and misuse of law.
beginning dishonest or fraudulent
intention of cheating the Respondent
The Petitioner further contended that
No. 3.
the Respondent No. 3 has already
availed civil remedies, including
Held:
remedies before the Company Law
23 | P a g eEdition – November & December, 2017
The Respondent No. 3 approached 13(1)(d) (Criminal misconduct by a
every forum available to him to raise public servant) of the Prevention of
his grievances and after being Corruption Act, 1988, (PC Act) on
unsuccessful there, he tried to give the allegations of criminal conspiracy and
colour of criminal offence to this civil criminal misconduct in respect of
dispute by filing this complaint and allotment of Letters of Intent (LOI),
levelling the same allegations. Thus, Unified Access Service (UAS) Licences
where a case is predominantly of a and spectrum by the DoT.
civil nature and has been given the
robe of criminal offence that too after Brief facts:
availing civil remedies, its proceedings
are liable to be quashed and set In 2010, a CAG report was submitted
aside. The petition was accordingly on allotment of 2G spectrum licences
in which former telecom minister A.
allowed.
Raja was held responsible for flouting
rules, providing favourtisim to certain
KEY MATTERS ADJUDICATED
companies and for causing a loss of
BY THE SPECIAL COURT OF INR 1.76 lakh crores to the exchequer.
CENTRAL BUREAU OF It stated that licences were issued to
INVESTIGATION (CBI) ineligible applicants who had
deliberately suppressed facts,
i. The Special Court of CBI disclosed incomplete information,
submitted fictitious documents and
acquitted all the accused
used fraudulent means to gain access
persons in the 2G spectrum to the spectrum.
case while holding that there
Upon completion of investigation, CBI
is no evidence on record
filed a chargesheet under various
indicating any criminality in provisions of the IPC and the PC Act.
the acts allegedly committed
Contentions of the Prosecution:
by the accused
A. Raja entered into a conspiracy with
Hon’ble Judge: O.P. Saini, J. other accused persons and
companies with a view to issue UAS
Decided on: 21.12. 2017 licences to M/s Swan Telecom Pvt. Ltd.
(STPL), which had already applied for
The instant case was instituted against
licence, and to companies promoted
unknown officials of the Department of
by M/s Unitech Ltd., which were yet to
Telecommunications (DoT),
apply for UAS licences, by
Government of India, unknown private
manipulating the priority list on the
persons/companies and others for
basis of LOI compliances instead of
offences punishable under Section
existing guidelines/practice of
120-B (Punishment of criminal
deciding applications on the basis of
conspiracy) of the Indian Penal Code
(IPC) read with Section 13(2) read with
24 | P a g eEdition – November & December, 2017
the date of application as per the The defence contended that all the
availability of the spectrum. decisions taken by A. Raja during the
allocation of 2G licences was in public
The CBI claimed that A. Raja had interest, out of which A. Raja did not
devised his own way of granting derive any personal benefit. It was
telecom licences, brushed aside the further submitted that the old GSM
first-come-first-serve principle, misled operators were not happy with the
the (then) Prime Minister, disregarded entry of new players and that there
the concerns of other ministries and was a cartel among the old GSM
ran a parallel office at home to grant operators as their interest was being
licences to whosoever offered him affected by the new entrants.
gratification.
The defence contended that the 2G
It was further alleged that A. Raja had spectrum allotment of licences was
connived with the telecom touched by various governmental
companies, extended the cut off authorties like CVC, CAG, CBI without
dates for granting licenses and gave proper understanding of the subject
2G spectrum licenses in 2008 at prices and on the basis of their own
which prevailed in the year 2001. No inferences. The case was merely
due process of auctioning was foisted against A. Raja and the other
followed nor bids were invited. co-accused.
The CBI further alleged that the Furher, the then Pime Minister was
suspect officials of DoT had selectively always kept aware on the
leaked information to some of the developments in the 2G spectrum
applicants regarding the date of allocation and the Cabinet had
issuance of LOI. In the LOI, an arbitrary sanctioned all policies for assigning 2G
condition was incorporated that spectrum licences.
whosoever deposits the fees as per the
conditions in the LOI first, would be the It was also contended that CBI had
first to get the licence. Since some of failed to adduce evidence in support
the applicants, who had prior of its claim that he had received bribe
information, were ready with the of INR 200 for favors granted by him to
amount, they were able to deposit the STPL by issuing 13 licenses.
fee earlier than others.
Observations of the Court:
It was contended that A. Raja
received illegal gratification of INR 200 There is no evidence on the record
crores for the favours shown by him to produced before the Court indicating
STPL, in the matter of grant of 13 any criminality in the acts allegedly
spectrum licences and allocation of committed by the accused persons
relating to fixation of cut-off-date,
spectrum in the year 2008-09.
manipulation of first-cum-first-serve
Contentions of the Defence: policy, allocation of spectrum to dual
technology applicants, ignoring
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