Defence refutes Prosecution Charges

 

1. Charge of Licensee and Owner of Uphaar Cinema – Company not individuals
   The CBI once again tried to argue that the Ansals were the licensee. The defense counsel has already demonstrated that no individual was the licensee but it was the cinema owning company. In fact the defense counsel question the validity of the charge so framed. From the evidence available on court records it has been demonstrated clearly that initially Green Park Theater Associated Pvt. Ltd. was the owner and licensee and since the name of the company was changed to ATCPL on 11/03/1996 – ATCPL was the licensee of the Uphaar Cinema and not any individual and Mr. R.M. Puri was the Whole Time Director and representative on the date of incident i.e. 13.06.1997.
2. Allegation regarding management and control of Uphaar Cinema by Ansal Brothers – Refuted by defence
   The Defence Counsel demonstrated from the evidence available with the Court records that Mr. Sushil Ansal and Mr. Gopal Ansal resigned from the Directorship of GPTA on 17.10.1988 thereafter they had no concern with the affairs of Uphaar Cinema. The Company was managed by a professional Board of Directors and the Whole Time Director was Mr. R.M. Puri., who was expert in the field of Cinema Business. The minutes of meeting of GPTA dt.17.10.1988 and submission of Form 32 together with the statement of the Registrar of Companies were also referred and relied upon by the Defence Counsel.
3. Allegation regarding signing of cheques to any amount – Not significant
   After 17.10.1988, Mr. Sushil Ansal and Mr. Gopal Ansal were authorized only to sign the cheque as authorised signatory. It was also demonstrated that even other persons and directors of the company who did not belong to Ansal family were authorized to sign the cheques of unlimited amounts. In this context the judgments of Hon’ble Supreme Court was also referred in which it has been held that a signatory of the cheque has nothing to do with the management and control of affairs of the company.
4. Cheque of Rs.50.00 Lacs signed by Mr. Sushil Ansal – has no bearing on case
   It was argued by the Defence Counsel that the cheque of Rs 50.00 Lacs pertained to the sale consideration of shares of Mr. Ansal to GPTA. It was also argued that the prosecution has deliberately withheld the filing of documents of sale transaction of shares and has only placed the cheque on record in order to falsely implicate Mr. Ansal. This cheque had nothing to do with the business and affairs of Uphaar Cinema. In a decision of the Hon’ble Supreme Court it has been laid down that the signatory of a cheque cannot be deemed to be involved in the day to day affairs of the company and he is authorized only for specific purpose i.e. signing the cheques.
5. Installation of DVB Transformer in Uphaar Cinema premises – on compellation
   Another charge against Uphaar management was that it allowed the installation of DVB transformer inside the premises of Uphaar Cinema. The Defence Counsel demonstrated from the record that in order to secure electricity supply for Uphaar Cinema, the Uphaar management was compelled to provide space to DESU for installation of its sub-station in the Cinema premises for catering to the need of electricity to the surrounding Green Park area. Since the DESU was delaying the supply of electrical energy to Uphaar Cinema, as such the management was left with no other option except to provide space to DESU for installation of its service station. It was also argued by the Defence Counsel that such installation was not illegal and was permissible under section 42 of Electricity (Supply) Act, 1948 and, not only this, the said installation was done pursuant to an agreement executed between DESU and GPTA, the owner of Uphaar Cinema. As a result no illegality was committed in allowing the installation of transformer to DESU.
6. Increase of Seats and closure of Gangway in the Balcony – fully authorized
   Another charge is that the management of Uphaar Cinema had increased the number of seats and closed the gangways in the balcony. From voluminous evidence available on Court record the Defence Counsel have demonstrated that whatever was done that was in compliance of the order passed or the directions issued by the Delhi High Court or the statutory authorities. In this way the increase of seats and closure of gangway by the Cinema owner did not constitute any offence.
7. Protection of Cinema owner against the acts done in compliance of the order passed by Delhi HighCourt and statutory authority
   It has been argued by the Defence Counsel that the seats were increased and the gangway was closed in substantial compliance of Cinematograph rules 1953 as per the directions issued by the Delhi High Court to the licensing authority. Pursuant to the said direction the licensing authority together with higher authorities, PWD, Health Department, MCD, etc. inspected the cinema and permitted the closure of gangway and increase of 37 seats in the balcony finding them to be in substantial compliance of the Cinematograph rules 1953. Therefore, the cinema owner was protected under section 78 and 79 of the Indian Penal Code which clearly contemplated that if an act is done pursuant to some order of the Court or of the authority no offence can be said to have been committed.
8. Deviation from building bye laws – negated by defence                                                                                                 From the Court record, it has been demonstrated by Defence Counsel that whatever deviations were alleged, most of them were removed. The remaining deviations were neither violative of Building Bye laws nor they caused any obstruction in the ingress or egress of the patrons. If these deviations contributed anything against the safety of the patrons, the statutory authorities like Fire, PWD, Electrical Inspector, Licensing, etc., who had been making periodical inspections, would not have renewed the Cinema Licence or issued temporary permits time and again.
9. Day to day affairs – demonstrated that Ansals were not involved
   The Defence Counsel referred to and relied upon voluminous evidence available on record to demonstrate that right from the beginning i.e. in the year 1976 different persons including Mr. K.L. Malhotra were nominated under the Cinematograph Act, 1952 to look after the day to day affairs of Cinema. Not only this on 17.10.1988 when the Ansal Brothers resigned from Directorship, was Mr. R.M. Puri appointed as Whole Time Director of the Cinema Owning Company. Even in 1996 when the name of the company was changed, again the names of Mr. R.M. Puri and Mr. K.L. Malhotra were communicated as nominee to the licensing authority on 16.12.1996 who acknowledged them vide letter dated 6.3.1997. The Defence Counsel also referred to several correspondence and inspections conducted periodically in which either Mr. K.L. Malhotra or Mr. R.M. Puri were found present / involved. The documents referred by the Defence Counsel clearly demonstrate that it was Mr. K.L. Malhotra or Mr. R.M. Puri who were involved in day to day affairs of Cinema and were actually controlling the said business.
10. Attending Board meetings as Special Invitee
    It has been argued by the Defence Counsel that the Companies Act does not recognize the Special Invitee having any role in the affairs of the Company. Anybody can be called as Special Invitee for seeking his expert opinion on technical issues although such opinion is not binding on the Board. Secondly it was argued that in all the four Board meetings no Cinema Business was discussed and these meetings were mainly concerned with the expansion of the business of the company in the fields of clubs and real estate. The presence of Mr. Sushil Ansal in these meetings was therefore, of no significance in so far as the case of prosecution is concerned.
11. Affidavit signed by Mr. Sushil Ansal in 1992
    The Defence Counsel referred to the applications and affidavits for renewal of Cinema Licence submitted to the licensing authority for the periods from 1993-94 to 1997-98. They argued that it was a mistake due to oversight which was rectified for subsequent years and continuously for five years the applications and affidavits for renewal of Cinema Licence were signed and filed by Mr. R.M. Puri the Whole Time Director and Mr. K.L. Malhotra the Deputy General Manager of the Cinema Owning Company. Moreover, this isolated affidavit did not have even a remote connection with the incident which took place in the year 1997.
12. Share holding in the Company
    It was argued by the Defence Counsel that share holders are neither the owners of the company nor they are entitled to its assets. The rights of the share holder are limited to participation in Annual General Meeting and to the profit declared by the company in the shape of dividend, the share holder is not entitled to any other benefit in the company. It is the Board of Directors of the company who are responsible for day to day conduct of business of the company. Number of judgments were cited on this point in which Supreme Court has affirmed the aforesaid view.
13. 2^nd Term of Mr. Gopal Ansal as Director after 1988 –(Exclusively for Clubs)
    The Defence Counsel argued and demonstrated from evidence on record that since GPTA expanded its business in the field of Club also as such Mr. Gopal Ansal was inducted as additional Director for establishment of the Club business being an expert in the said field. His tenure commenced on 24.12.1994 and came to an end by his resignation on 30.06.1995. The meetings of Board of Directors of the Company attended by him during this period were confined to Club Business only and he was not at all involved in the business of Uphaar Cinema.
14. Cause of Death
    The Defence Counsel argued and demonstrated from evidence on record that there was no other cause of death except the smoke which emanated from the transformer which was in exclusive control of DVB and was not having mandatory safety measures and protection systems. Had the protection systems been installed in the transformer, it would have tripped and even the possibility of catching the fire would have been ruled out. Even the experts from CBRI, CFSL and Electrical Inspaector have confirmed that the only cause of death was the DVB transformer which caught fire due to its poor maintenance and absence of protection systems.