"CBI`s present application is misconceived, ill-timed and ill-motivated and it may be dismissed with cost. I call it ill-timed because this court is meant to hear exclusively this case only. This case is of public importance and it is being monitored by the Supreme Court,"
Goenka`s counsel Majeed Memon told Special CBI Judge O P Saini. Memon said CBI was in "deep slumber" and suddenly moved the application on September 26 for invocation of an additional charge under Section 409 (criminal breach of trust) of the Indian Penal Code against all 17 accused in the case.
"On September 26, 2011, it suddenly dawned upon the prosecution that they are making a mammoth mistake. It seems they (CBI) were in deep slumber that a petition sees light of the day on September 26," he added. "My fundamental and legitimate question to this court and to CBI is that what happened on September 26 or soon before it that it thought of the necessity to present this fresh application at this juncture," the counsel said.
Memon argued that as per the settled law of this country, offences related to cheating and criminal breach of trust cannot be invoked together on same set of facts. "The offences of cheating and criminal breach of trust cannot go together. The Punjab and Haryana High Court had termed it as anti-thesis. If a person is accused of criminal breach of trust, then he cannot be accused of cheating as well on the same facts," he said referring to judgements of various superior courts.
He said as per the First Information Report registered by CBI in October 2009, the offence of cheating was the prime charge. "Till September 26, the paramount offence in this case was that of cheating....Everything revolved around section 420 (cheating) of the IPC. As per CBI, whatever the accused allegedly did was for the purpose of cheating," Memon said.
He said Section 409 of the IPC carries life imprisonment as the maximum punishment and CBI`s move seeking invocation of this charge is just to enhance the punishment of the accused. "If the prosecution wants to add any fresh charge, the only course open for them is that they shall file another supplementary charge sheet for section 409 of the IPC. Where is the material for criminal breach of trust? Is there any oral or circumstantial evidence which shows that I (Goenka) have committed criminal breach of trust?," the counsel said. He said the court should take judicial note of this plea by the CBI application and pass a separate order on this.