National Herald case: Sonia Gandhi alleges Subramanian Swamy seeking docs for ulterior motive

 Congress President Sonia Gandhi and Vice President Rahul Gandhi on Tuesday accused BJP leader Subramanian Swamy of trying to create an "archive for ulterior motives" by seeking documents from the party and Associated Journals Ltd (AJL) in the National Herald case.

The Congress top brass made the submission before a Delhi court, alleging that Swamy was seeking "fishing and roving enquiry" and wanted to make out a "new case" against them by taking recourse to a "fishing" probe in the matter and sought dismissal of his application seeking documents. Swamy told Metropolitan Magistrate Lovleen that "I am not going to get National Herald if I win the case as all these are public properties." He said he would file a detailed reply to the accused's claim and sought time from the court, which posted the matter for further hearing on November 4.

Appearing for the accused, senior advocates R S Cheema and Rebecca John told the court that "there is an effort to create an archive for ulterior motives. No fishing or roving enquiry should be allowed."
Swamy has accused the Gandhis and other party leaders, Motilal Vora, Oscar Fernandes, Suman Dubey and Sam Pitroda, of allegedly conspiring to cheat and misappropriate funds by just paying Rs 50 lakh by which Young Indian Pvt Ltd (YI) obtained the right to recover Rs 90.25 crore which AJL owed to the Congress party. All accused have denied the allegations levelled against them.

During arguments, the counsel representing the accused said there was no specific time period given in Swamy's application for which the documents have been sought and several of them are already on record.
The counsel submitted there was no list of witnesses filed by Swamy in the case who could certify the documents. The accused also opposed Swamy's plea seeking summoning of Income Tax records from the Congress party and AJL, saying these entities were not accused and hence their records cannot and should not be disclosed for maintaining their confidentiality.

The court had on August 27 issued notices to Gandhis and the other accused and the firm YI seeking their replies. In the written submission filed before the court, the accused have said that "the complainant (Swamy) has set up a particular case and it is his duty to prove the same. However, the application contemplates to create a situation where a 'fishing and roving enquiry' could be set into motion beyond the scope of averments made in the complaint and case set up by the complainant, in case the application is allowed." "The complainant through this application is seeking to call for documents without divulging their necessity and desirability on the basis of the allegations made by him in his complaint. Thereby, the complainant seeks to access documents in an attempt to make out a new case," they said, adding that "the endeavour of the complainant of not providing a list of witnesses also shows the malafide nature of the current application".

The Congress leaders' reply also said that Swamy's plea reflected "casualness" as some of the sought documents were already on record of this case and some were exhibited by witnesses during recording of pre-summoning evidence in case. "Swamy proceeded to move a wholly vague application demanding a series of documents to be summoned, without divulging even an iota of material as to the relevance and desirability of documents mentioned in application," it said.

It claimed that a witness was already called from ROC (Registrar of Companies) at the stage of recording pre- summoning evidences and "to now again summon documents from the ROC falls within the parameter of a fishing and roving enquiry, as the case has already been set up by complainant during the course of recording of pre-summoning evidence". "The complainant has also sought documents from the Income Tax authorities regarding parties (Congress and AJL) which are not accused in the matter. In such a scenario, IT Act contains sections pertaining to confidentiality of IT records which prohibit disclosure of information of assesses," it said.

In his application, Swamy has sought documents relating to a loan given by Congress to AJL, the holding firm of the National Herald, saying these were necessary for the purposes of trial in the case.He has also sought some documents from ROC which were filed by AJL and papers from the IT Department in relation to the tax returns filed by AJL The documents sought from AJL include authorisation by its members "to borrow monies in excess of its paid-up capital and free reserve of AJL, relevant extracts from the books of accounts of AJL during the period of loan and documents by which the loan was converted into shares in the books of AJL." Swamy has also sought summoning documents from "Congress party reflecting the loans given to AJL and documents of the party in the year in which the loan was written off," besides summoning of documents filed by AJL with ROC and certain papers from the IT Department.

The application was filed by Swamy after the Delhi High Court set aside trial court's orders summoning documents and the balance sheet of the Congress party for 2010-2011, holding that they were passed without hearing the opposite side and the lower court orders violated the "principle of natural justice" and the right to life and liberty under the Constitution.

In its July 12 verdict, the High Court had said the trial court orders of January 11 and March 11 seeking documents from Ministries of Finance and Urban Development, Department of Corporate Affairs and Income Tax Department and the summoning of certain documents pertaining to financial details of the party for 2010-2011, were "passed in a casual manner" and "without application of mind". The high court's order came on the pleas of Fernandes, Vora, Dubey, Pitroda and YI. Gandhis have not moved the high court against summoning of the documents and balance sheet.