Switzerland-based Swiss Timing Ltd has been put on trial for allegedly conspiring and cheating the exchequer in a Commonwealh Games scam case, involving Suresh Kalmadi and nine others, by a Delhi court which also asked CBI to file a chargesheet against the firm's 3 senior officials.
The court framed charges of cheating and conspiracy against Swiss Timing Ltd for allegedly causing a loss of over Rs95 crore to the exchequer and said the record of the case "prima facie" suggests there are "incriminating evidence about the involvement" of its three officials in the case.
"It is during perusal of the entire record of the case for proceeding against accused no. 11 (Swiss Timing), whose trial was separated...., it is observed that prima facie there is sufficient incriminating evidence about the involvement of Christophe Berthaud, General Manager of A-11, S Chianese, Sales & Marketing Manager of A-11 and J Spiri, Multi Sports Events & Sales Manager of A-11 in the offences involved in the present case," Special CBI Judge Ravinder Kaur said.
"Thus, the process is liable to be issued against them to seek their presence before the court. Process against them be issued through proper channel for May 28, 2013. The proceedings against these three persons are separated from the main file which is already fixed for prosecution evidence. Investigating Officer is directed to file a copy of charge sheet against the above referred three persons," the judge said.
Swiss Timing Ltd was chargesheeted by CBI along with Kalmadi and others in a case relating to "illegally" awarding a contract to install Timing, Scoring and Results (TSR) system for the 2010 CWG to Swiss Timing Ltd at inflated rates causing a huge loss to the exchequer.
CWG Organising Committee (OC) sacked chairman Kalmadi and nine others, including OC's former Secretary General Lalit Bhanot, are facing trial in the case for offences punishable under the IPC and the Prevention of Corruption Act.
The court, in its order, held that Swiss Timing Ltd would be tried along with other 10 accused in the case and asked for issuance of a court notice to their advocates "so that accused no. 11 is aware that its trial is being conducted along with the other accused persons."
While directing CBI, which is represented by prosecutor VK Sharma, to file a charge sheet against the three persons, it said the name of a person, who had allegedly acted and entered into a criminal conspiracy on behalf of Swiss Timing Ltd with the other accused, is not there in the charge sheet.
"Swiss Timing Ltd, being a registered company, had no brain or muscles and thus the acts and omissions of the company can only be attributed to its directors/employees. It could only be through the criminal state of mind of these directors/employees that accused no. 11 could commit the offences involved in the present case and thus they too are liable to be prosecuted for the offences involved in the present case along with accused no. 11," the judge said.
The court said the material available on record "speaks of the criminal conspiracy entered into between accused no. 1 to 10 and accused no. 11 through Spiri, Chianese and Berthaud."
Detailing their roles, the court said Swiss Timing Ltd was represented by Spiri at the stage of the pre-qualification bid on November 4, 2009 and also at the stage of technical bid on December 4, 2009.
It said that at the same time, Chianese, along with Spiri, had filed the commercial bid on behalf of Swiss Timing Ltd and these two had entered into agreement on October 22, 2009 with Gem International, a construction firm whose promoters PD Arya and AK Madan are also facing trial in the case.
The court said the final agreement was entered into between the OC, through Bhanot, and Swiss Timing Ltd, through Berthaud and Chianese on March 11, 2010 "at grossly inflated and exorbitant rate on illegal terms and conditions in violation of RFP (request for proposal)." "There is ample incriminating material on record which clearly reflects mens rea (motive) on the part of these three persons who entered into a criminal conspiracy on behalf of accused no. 11 with other accused persons..I am of the view that all these three persons are concerned with commission of offence in the present case and are thus liable to be prosecuted," the judge said.
The court, while deciding to frame charges against Swiss Timing Ltd, referred to the provisions of the CrPC saying "all the proceedings, in the case, where there is no representative of the accused company/juristic person, can be carried out in absentia."
"These provisions are fully applicable to the facts and circumstances of the present case wherein accused no.11 is a corporation/juristic person and despite being served with the process of the court, is not being represented by any representative for the purpose of proceedings in this case and thus in view of the provisions under section 305 (4) CrPC, the trial is required to be conducted in absentia," it said.
Earlier, Kalmadi and nine others were put on trial in the case by the court which had invoked charges of criminal conspiracy, forgery, cheating and other offences against them entailing life imprisonment as maximum punishment.
After framing of charges, all the accused had pleaded not guilty and claimed trial in the case.
Besides Kalmadi and Bhanot, the other accused in the case are OC's former Director General VK Verma, former Director General (Procurement) Surjit Lal, former Joint Director General (Sports) ASV Prasad and former Treasurer M Jayachandran. They are no more associated with the sporting body.
Apart from the six, promoters of two construction firms - PD Arya and AK Madan of Faridabad-based Gem International and AK Reddy of Hyderabad-based AKR Constructions are also accused in the case. AKR Constructions is also an accused in the case.
CBI had alleged Kalmadi and others had rejected Spanish firm MSL's much lower bid of Rs62 crore and awarded the contract to Swiss Timing, causing a loss to the exchequer.