The Europe-based Hinduja brothers Monday asked the Delhi high court to set aside the trial court order framing charges against them in the Bofors pay-off case, saying there was no evidence to suggest that they had entered into a criminal conspiracy with former prime minister Rajiv Gandhi to get the Rs 14.37 billion contract awarded to the Swedish arms manufacturer.
There was nothing to suggest that the Hindujas contacted Rajiv Gandhi or his defence secretary S K Bhatnagar to secure the deal for Bofors nor did they make any misrepresentation to the government in this connection, Hindujas counsel Ram Jethmalani told Justice J D Kapoor.
Justice Kapoor is hearing appeals filed by accused Hinduja brothers -- Srichand, Gopichand and Prakashchand and the Bofors company challenging the November 2002 order of Special Judge Prem Kumar framing charges against them in the Rs 640 million pay-off case.
Regarding the payments received by the Hindujas from Bofors, he said it was under the 1979 counter-trade agreement with the Swedish company which did not relate to the gun deal.
Jethmalani submitted that the alleged conspiracy to get the Howitzer gun deal awarded to Bofors concluded in March 1986 and the post-conspiracy cunduct of deceased public servants -- Gandhi and Bhatnagar -- in allegedly scuttling probe by Sweden could not be read against Hindujas as it was not admissible under the Indian Evidence Act.
Under Section 8 of the Act, the conduct of only a person who was party to the proceedings was relevant and not the same of those who were not party thereto, he said.
In his submissions before the court, Additional Solicitor General Mukul Rohatagi had said pre-and-post contract conduct of Gandhi and Bhatnagar showed there was a conspiracy between them and the Hinduja brothers, Bofors and other accused.
However, citing Supreme Court judgments and those of the US Supreme Court, Jethmalani tried to convince Justice Kapoor that post conspiracy conduct of a co-accused was irrelevant and not admissible in evidence.
On the payments received by the accused brothers from Bofors, he said it could at best be termed as "one of the consequences of the conspiracy" and not "the conspiracy" which ended in March 1986 with the signing of the deal.
CBI has filed two chargesheets in the case. In its first chargesheet filed in October 1999 it named the then Defence Secretary S K Bhatnagar, Bofors agent W N Chadha, Italian businessman Ottavio Quattrocchi, Bofors company and its then chief Martin Ardbo as the accused.
A year later, the CBI filed another chargesheet against the Hinduja brothers accusing them of having received about Rs 140 million from Bofors as illegal commission in the deal.
While Chadha and Bhatnagar have died, the probe agency has failed to secure the presence of Ardbo and Quattrocchi.