Delhi District Court
S.P. Bhatnagar And Anr. vs . State Of Maharashtra, 1979 Crl.Lj 566 on 3 July, 2013
1
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 29/2011
R.C. No. 2(A)/98/CBI/ACUII/ND
Central Bureau of Investigation
Versus
Rati Kant Basu etc.
ORDER
By this order I propose to decide as to whether this court should accept the final report filed by CBI in this case under section 169 of the Code of Criminal Procedure,1973 or exercise the other option of taking cognizance and issue the process under section 204 of the Code of Criminal Procedure,1973 or may be send the case for further investigation.
2. There was an FIR ( RC.2(A) ACU II) registered on 09/01/1998 on the basis of source information under section 120B IPC read with C.C. No. 29/11 1 of 74 2 section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offences. The Accused named in the FIR are :
(i) Sh. R Basu the then DG Doordarshan (ii) Sh. Ashok Hiranand Mansukhani the then DDG Doordarshan
(iii) Sh. Harish Awasthi the then DDG Doordarshan
(iv) Sh. Shiv Sharma the then DG Doordarshan
(v) Sh. Shanti Kant Kapoor the then DG Doordarshan
(vi) Sh. S. Krishnan the then DG Doordarshan
(vii) Sh. Pranoy Roy Managing Director New Delhi Television Ltd.
(viii) M/s. New Delhi Television Ltd.
3. The allegation in the FIR are :( Taken from the Closure report)
(a) Programme TWTW ( The World This Week), a commissioned programme was converted into sponsored programme, the telecast of which started on 16.02.90.
(b) It was decided in April 90 to recategorise the programme as ' A Special' category w.e.f 01.06.90 but category of programme TWTW C.C. No. 29/11 2 of 74 3 was kept in 'A' category instead of ' A Special' category to show undue favour to M/s NDTV.
(c) Payment was made to NDTV for programme TWTW treating it as a commissioned programme instead of Sponsored programme by according retrospective approval w.e.f March 95.
(d) NDTV was provided access to VISnews footage which was being received by Doordarshan Kendra, Bombay but bills were not raised.
(e) Foreign exchange was released to M/s NDTV and it could not be ascertained as to how the said foreign exchange was utilized by producer.
(f) Programmes namely, The News Tonight, Surkhiyan, News Headlines, South East Asia Capsule and Good Morning India and other such programmes produced by M/s NDTV were telecast on Doordarshan by violating the rules and regulations of the Doordarshan and Doordarshan suffered a huge loss in the production of the aforesaid programme and M/s NDTV got a wrongful gain.
C.C. No. 29/11 3 of 74
4
Submissions
4. I have heard Ld Public Prosecutor of CBI and have gone through the record of the case.
5. There was one Kashmir Singh, claiming to be a RTI activist, who had submitted an application to be heard against the final report of CBI. The request was declined he being stranger to the proceedings but just to satisfy myself I have gone through the written submission he had placed on record.
Abuse of Position
6. The term " abuse" as used in section 13(1)(d) of the Act has not been defined any where but it has come to be understood as "misuse i.e. using his position for something for which it is not intended" and 1 "dishonesty" is implicit in the word "abuse". In other words, mere misuse without dishonest intention is not abuse. Of course, the dishonest intention can be inferred from various circumstances which 1 S.P. Bhatnagar and anr. Vs. State of Maharashtra, 1979 Crl.LJ 566 C.C. No. 29/11 4 of 74 5 2 would depend upon the facts of each case. Sometimes physical representation of the offence would be such ( actus reus) that there is no necessity to look any further to infer dishonest intention such as the cases where there is clear manipulation of records, misrepresentations, falsehoods, deceits etc but there may be cases where the physical representation of the offence ( actus reus) is such that it by itself, it is not sufficient to indicate " dishonest intention" and it would be necessary to look further for other facts and circumstances which may justify the conclusion that there was dishonest intention involved in the commission of the offence and thus punishable. Acting not in accordance of rules/guidelines do not per se result in the conclusion that there has been "abuse of position"
by the public servant. It is, therefore, necessary that there should be some more material to reach such a conclusion. Violation of Rules
7. There is another issue, the question of violation of guidelines is to be seen in the overall scenario and not in specific reference to one party only i.e NDTV in this case. The examination of the entire 2 R. Gopalakrishnan vs The State 2002 CriLJ 47 C.C. No. 29/11 5 of 74 6 records gives an impression that in general that there had been no compliance of the guidelines in the strict sense of the word. Though ideally speaking Doordarshan should have decided that what kind of programme they were looking for and then invited the producers to submit their applications etc. and take decisions thereafter. Instead what seems to be happening was that the private producers were approaching the Doordarshan with various programmes and Doordarshan was taking decisions thereon. I could see from one of the list on record that there were 13 News based programmes between 1993 to 1995 which were being telecast not just by NDTV but by various other producers for different durations such as TV Today, APCA, Plus Channel, Moving Pictures Co., Times TV, TV Bazaar, M/s Starcon India Ltd. and TV 18. It would have made a great deal of sense if during the investigation there had been material collected to show if in the case of other private producers the guidelines were being followed in true letter & spirit and they were breached only to favour NDTV. Though, there is no such material collected but there are enough reasons to believe that the programme of the other producers were not selected by following the guidelines but just on their merit.
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7
Discussion Programme wise:
The World This Week
Change of category of program: From commissioned program to sponsored program
8. There is an allegation that TWTW after being initially run as a commissioned program was changed to Sponsored Category as per terms and conditions specified in the letter of 16/01/1990. It is stated "This category was fixed by the Controller of Sales denoting the particular charge on NON PRIME TIME of slot concerned. Meaning thereby the categorization was based not on the popularity of the program but the TIME SLOT. The change of category suggested by Sh. Bedi, with the approval of Sh. Shiv Sharma to A Spl. was not based on any change of time of the program but "considering the viewership of the program and the long waiting list for spot ads with this program." Desire of DD to earn more revenue resulting from the popularity is understandable. It could have done so only by re categorizing the program because it is only then it could charge more C.C. No. 29/11 7 of 74 8 for the spot ads for according to the guidelines and directions from the ministry SOPT BUY RATES should have been in sync with the category of the program. For the producers, however, it meant that despite staying in the same TIME SLOT (NON PRIME) it was being asked to pay for A Spl. Category rates. Producer in my view was justified when it protested for recategorization of the program with there being no change in the ground situation. Producer could not have been charged high because viewers were drawn to the programme despite it being in the NON PRIME TIME SLOT. I think producer also could not have been asked to pay more because it was earning more. Despite the fact that the decision was unprecedented and not strictly within the frame work of the guidelines it makes a lot of sense to have kept the programme in the 'A' category because the programme continued in the non prime slot and at the same time DD also raised its revenue by raising spot buy rates to 'A spl' category encashing on the popularity of the program. There may have been a deviation from the guidelines but they were in favour of Doordarshan and not against it.
C.C. No. 29/11 8 of 74 9 Change of category of program: From sponsored program to commissioned.
9. This is the stage where the timing of the program was shifted to 10.30 PM. A request came from the producer that the program be put into commissioned category from the sponsored category because of the unavailability of sponsors for that time slot. Initially there was in fact proposal of the DD itself to run a current affairs program as commissioned program in the same slot with the name "WIDE WIDE WORLD" to be anchored by Sh. Pronoy Roy. Coming to the proposal of producer to have the TWTW as commissioned program, noting show that though initially it was proposed to be accepted but it seems that a demand grew to not to change the category of program from sponsored to commissioned program not for any revenue consideration or may be with the consideration that it would be a losing proposition for Doordarshan but because there was an affidavit filed before the Hon'ble High Court in response to a PIL on behalf of the DD justifying the change of the category of the programme from commissioned to sponsored category therefore they would not have liked to be seen as once again changing their stand or accused of favoring the producer. The fact remains during this period of C.C. No. 29/11 9 of 74 10 indecisiveness the programme continued to be run like a commissioned program though letters had been written to the producer to inform that TWTW is a sponsored program. At the end, however, the account of the producer was sought to be settled as if it was a Commissioned program. There are many questions here, how was the programme allowed to be continued to be run like a commissioned programme when it was meant to be a sponsored program. It seems that there was some kind of break down of communication between different wings of DD, while one wing continued to have the impression that it was a commissioned program while the other wing was struggling with the question whether it was to be treated like a commissioned or sponsored programme. Even after it was finally decided to call it a sponsored program there was no effort made to stop the programme being run as commissioned program. The producer also on its part, though having received the letter from DD that TWTW was a not commissioned program but a sponsored program it continued to run it defiantly as commissioned program with no advertisements. There is no clarity if the programme was supposed to be a sponsored program what stopped DD from placing spot advertisements. There is nothing C.C. No. 29/11 10 of 74 11 to indicate if it was even attempted. There is one thing more. It appears that Doordarshan did not want to let go a programme which was so popular. There can be a view that since it was officially communicated as the " sponsored programme" instead of making the payment to producer as commissioned fee, it should have charged telecast fee ; the other view can be that since for all practical purposes it was a commissioned programme which was also originally conceived to be a commissioned programme there was a justification to treat it as a commissioned programme. If two views were possible, to suggest that by exercising one option one has acted dishonestly is neither proper nor justified. It is not the case that while making the payment, treating this programme as commissioned program, there was any excess payment made or the basis of arriving at the said figure was not correct. There is another thing one may take note of, a commissioned programme is not a losing proposition always. In case of a commissioned programme it is not the private producer but the Doordarshan who would be the owner of the programme and would have all the rights to use its portions as footage in its other programmes and it also would become part its archive to be able to be used at any time in future.
C.C. No. 29/11 11 of 74 12
10. In the above given circumstances no criminal offence can be said to have been committed in relation to this programme. Good Morning India
11. The earliest letter which I could locate from the documents filed is of 11/05/1995. It is a letter addressed to the DDG Doordarshan by NDTV wherein it is stated that this letter was in response to a programme NDTV was asked to do by the name of "Good Morning India" for 2 hours between 7 A.M. to 9 A.M. on channel III( International Channel). In this letter NDTV had given a total cost of this programme as 6 Lacs, out of which Rs. 3 Lacs was to be paid per day as commissioning fee and the remaining was to be raised through advertisement during the show of 8 minutes per hour meaning thereby the total FCT asked for was 480 seconds.
12. This letter was followed by another letter dated 19/06/95 where the proposal was revised and it was stated that Doordarshan would pay 50% of the cost i.e. 3 Lacs to NDTV and the remaining 50% of the cost would be recovered through advertisement and sponsorship.
C.C. No. 29/11 12 of 74 13 In this letter the proposal was for 6 minutes of FCT per hour i.e. 360 seconds. Additionally it was stated that in case during that period if NDTV succeeds in raising revenue in excess of 3 Lacs the contribution by way of commissioned fee would be reduced by the said amount. That is to say in case the revenue raised is 3.50 Lacs , the commissioned fee would be reduced to 2.50 Lacs from 3 Lacs.
13. It seems that the said proposals were considered and replied to by letter dated 10.07.1995. The latter proposal was accepted in principal with certain conditions. Firstly, that this arrangement would continue for a period of 10 days to know the response of sponsors. After 10 days the advertisement revenue account will be worked out on net basis and such amount beyond 6 Lacs will be shared on 5050 basis. That arrangement was to continue for a period not exceeding 90 days and, thereafter, the financial, arrangements would be re evaluated to arrive at a fresh arrangement based on the actualities of the budgeting done and the earnings made. It was also proposed that this programme initially will be for 12 months. It may be noted that in this letter there is also a reference to a memorandum of understanding to be arrived at between Doordarshan and NDTV C.C. No. 29/11 13 of 74 14 covering all programme produced by NDTV for Doordarshan on all channels.
14. This letter was replied to by NDTV vide letter dated 13.07.1995 wherein interalia it was suggested that the financial arrangement to be arrived at including sharing of advertisement revenues to continue for 6 to 8 months and the telecast of the programme be guaranteed for 2 years.
15. This proposal was considered and replied to by the letter dated 21.07.1995 by which more or less the earlier conditions proposed from Doordarshan were reiterated. Significantly, it was noted in this letter that this kind of arrangement was unique and was being tried for the first time and it was not possible at that time to have known exactly how these financial arrangements would work out in terms of net earnings for Doordarshan.
16. On 22.07.1995 another letter was sent asking NDTV to make a representation to DDIII committee members. There is one letter of 03.08.1995, wherein, NDTV had expressed reservation on the terms C.C. No. 29/11 14 of 74 15 and conditions offered to go ahead with the production of the programme. In this letter once again the demand was made to have the contract for the production of the programme for 2 years and to also have the initial financial terms for 180 to 270 days and not 90 days as proposed by Doordarshan.
17. It seems that there had been some discussion between the NDTV representatives and the representatives of Doordarshan which resulted in the writing of the letter dated 09.08.1995 by NDTV to DDG Doordarshan wherein it was proposed that for the first 6 months Doordarshan will pay Rs. 3 Lacs a day, next 3 months 2 Lacs a day and still next 3 months 1 Lac a day. Doordarshan would provide 6 minutes of FCT per hour. The contract will be for 2 years re negotiable after 12 months. No telecast fee for first 12 months. NDTV would pay 50% of the net advertisement revenue over 3 Lacs in first 6 months, 50% of the net advertisement revenue over 4 Lacs in 3 months and 50% of the net advertisement revenue over 5 Lacs in next 3 months. It seems that thereafter, there was some more discussion on this issue and on 31.07.1995, again there had been some terms and conditions added and conveyed to NDTV by letter dated 31.08.1995.
C.C. No. 29/11 15 of 74 16
18. The original file related to this matter was not seized in this case perhaps it was not traceable. I, however, found some photocopies of note sheets in file 10/561/95DDIII. There is a note of 21.08.1995 which states that the proposal was previewed by the committee alongwith the DG at Mandi House and NDTV may be asked to give the processing fee. There is a note of 13.10.1995 by a Section Officer which states that since at that point of time DDIII was not to go for morning transmission the matter may be kept pending.
19. It may be noted that DDIII was an international channel which the Doordarshan was aiming to launch in January 1996. The noting of 30.10.1995 explains that as to why the programme which was conceived for channel III could not go on air on channel III. The subsequent noting gives an indication as to how this programme came to be ultimately telecast on DDI.
20. The noting of 18.10.1995 shows that DDG(JC) had called a meeting of some outside producers for presentation of their concept for morning show. In the said list NDTV was not included. It was, therefore, proposed that NDTV may be asked to make its presentation as well on 31.10.1995.
C.C. No. 29/11 16 of 74 17
21. There are no documents I could find on record as to what transpired thereafter. I could, however, locate one document in file no. 1409/5/96PIII at page no. 5 therein it is noted interalia;
" 1. This show was offered to several other producers. Everyone else rejected it because sponsorship for the morning is very difficult.
2. NDTV was only offered the programme AFTER others had rejected it. NDTV now has a written contract for 1 year."
22. This document bears the date as 11.03.1996 of DG Doordarshan office, which gives an impression that there were valid reasons for giving this programme to NDTV because the others had rejected it because the sponsorship for the morning was difficult.
23. There are many documents in between which show how this matter had progressed. Before going on to refer to the documents/notes of the final stages, I would like to refer to one note of 01/01/1996 of Additional Director (CA) which indicates that before its final shape appearing in April 1996 it was evident that it was to be a programme which was to be jointly funded and the proposals had C.C. No. 29/11 17 of 74 18 been examined and approved by the finance and commercial wing of the Directorate. It reads as under
"6. In the beginning for 6 months, it will be jointly funded programme, a legally acceptable information of Joint sharing of footage of GMI is also to be worked out.
7. The GMI proposal had already been examined and approval by the Finance and Commercial wings of the Directorate."
24. This programme in the final shape had appeared as one hour programme to be telecast between 7.15 A.M. to 8.15 A.M. for one hour on DDI. It was conceived to be a joint production of NDTV and Doordarshan. It was to be a completely sponsored programme in which Doordarshan will have share in the advertisement revenue. The question, therefore, of charging 50% of the total telecast fee prescribed i.e. Rs. 25,000/ , 50% of Rs. 50,000/ and also providing the FCT of 600 seconds instead of 300 seconds is to be seen in this light. The more FCT here would also mean more revenue for Doordarshan. Since it was a joint production sponsored programme it is obvious that NDTV could not have been asked to pay full telecast C.C. No. 29/11 18 of 74 19 fee of Rs. 50,000/. It may be understood in plain terms as, as if there were two production houses i.e. Doordarshan and NDTV who joined hand for the production of this programme where the cost and also the revenue would be shared. If Doordarshan had been an outside producer it would have also been required to contribute half and half towards the telecast fee. Since it was inconceivable that Doordarshan would be asked to pay to itself Rs. 25,000/ as telecast fee, the NDTV could not have been asked to pay more than Rs. 25,000/ as its contribution towards the telecast fee. It would become more clear if we read the note of Director General dated 15/04/96 and also the note of AD(CAII) dated 17/04/96. The relevant parts of the same are being reproduced as under:
PART OF NOTE OF DG DATED 15/04/96 " (i) The 'Good Morning India' show by NDTV will be started at 7.15 AM and end at 8.15 AM. This timing will be reviewed at every four months wherein the possibility of making it at 7.30 AM to 8.30 AM would be explored at the end of that reviewing.
(ii) We will charge them 50 per cent of the telecast fee to that hour.
C.C. No. 29/11 19 of 74 20
(iii) They are permitted to utilise FCT upto 720 seconds and both NDTV and Doordarshan will make aggressive efforts to sell the time.
(iv) It will be a completely sponsored programme to start with.
(v)We will provide microwave linking between Doordarshan and NDTV studio for a period of four months at normal charges to be levied by Doordarshan which will be specified in the letter to be issued to them.
(vi) He has agreed to pay normal uplinking charges whenever uplinking taking up by NDTV. This also would specify in the letter to be issued to them."
PART OF NOTE OF AD(CAII) dated 17/04/96 "(i) Telecast Fee : Telecast fee for nonfilm based programmes in the morning on DDI is Rs. 50,000/ per hour. It was decided to charge NDTV, 50 percent of the telecast fee i.e. Rs. 25,000/.
DG desired Commercial & Sales Wing to submit a list of all the programmes on DD where subsidised telecast fee has been allowed.
(ii) Fully Sponsored Programme : The programme from the beginning will be a hundred per cent sponsored programme.
C.C. No. 29/11 20 of 74 21
(iii) FCT : NDTV would be given 600 seconds for the one hour programme in the morning. The utilisation of FCT will be permitted only in the "Good Morning India" programme and in no case its utilisation will be permitted on other slots.
(iv) Banking Facility : For the first three months banking facility will be allowed in the "Good Morning India" upto 720 seconds in one single programme.
(v) Spot Buy Rate : Spot buy rate will be flexible upto first four months with the minimum rate of Rs. 5,000/ per second.
(vi) Sharing of Profit : NDTV have given an estimate of Rs. 3.50 Lakhs per programme per day of one hour duration. They will be asked to pay a telecast fee of Rs. 25,000/ per hour. The total cost to NDTV will be Rs. 3.75 Lakh per programme. It has been decided that whatever revenue is earned over and above Rs. 3.75 Lakh, it will be shared between DD and NDTV on 50:50 per cent basis.
NDTV will submit audited accounts regularly to DD in this regard.
(vii) Microwave Link/Technical Charges : DD will provide microwave link for NDTV studio for a period of four months and would also provide uplinking facilities. DG has decided that NDTV will be C.C. No. 29/11 21 of 74 22 charged for both the facilities extended to NDTV and their charges will be in the beginning a the prevailing rates of VSNL. DD will work out its own rates and the same will be intimated to NDTV later on.
(viii) Branding : No branding will be permitted as "Good Morning India" will be a coproduction of DD and NDTV.
(ix) Marketing : Both DD and NDTV will make aggressive efforts to sell the timing permitted to NDTV.
(x) Contract : DDG(Sales) desired that a contract should be entered into between DD and NDTV which can be signed by the representatives of both the sides rather than the present practice of exchange of letter."
25. The allegations, therefore, that NDTV was favoured by charging Rs. 25,000/ per episode and not Rs. 50,000/ as per the rate card and it was given FCT of 720 seconds as against the admissible limit of 300 seconds seems to be baseless. It may be added here for further clarifications that 720 seconds was with reference to the banking facility being granted. The FCT given was of 600 seconds only. It may also be noted that this banking facility could not have been utilized any where else. It already stands clarified above that as C.C. No. 29/11 22 of 74 23 far as the NDTV was concerned it was getting benefit of only 300 seconds because the revenue generated by the way of advertisements were to be divided 50:50 between Doordarshan and NDTV.
26. One may also note that this kind of Model was being tried perhaps for the first time and it was, therefore, the entire financial arrangement was to be seen from a new prospective and could not have been strictly seen from the point of view of rates provided in the rate card.
27. During the investigation there was statement of one Sh. S. Gopalan, Secretary, Ministry of Information & Broadcasting was recorded wherein he had stated that the decision taken by the Director General that the treating of this programme as sponsored was entirely justified. The relevant part of his statement reads as under "After a few days on taking charge as Secretary, Dr. P. Roy of M/s. NDTV contacted me over telephone. It was a holiday on that day. He wanted to see me on some urgent grounds pertaining to his programme to be telecasted on the Doordarshan. I gave him the C.C. No. 29/11 23 of 74 24 appointment on the same day, seeing his urgency. I also contacted Sh. K. S. Sharma, the then DG, Doordarshan and told him to attend the meeting in which Dr. P. Roy is also coming. I wanted to ascertain views of DG about the problem of Dr. Roy. Dr. Roy told me that Sh. R. Basu, the then DG has sanctioned a programme 'The Good Morning India' in commissioned category. The said programme was started to go air in month of March, 1996. He stated that Sh. K. S. Sharma has told him that the said programme should go as Sponsored instead of commissioned. I had ascertained views of Sh. K. S. Sharma in presence of Dr. Roy. Sh. Sharma told me that there is a shortage of funds with the Doordarshan and Sponsored programme is in the interest of the Doordarshan and in view of that he has taken a different view from his predecessor Sh. R. Basu. Sh. Sharma also stated that if the programme goes as a Sponsored then there will be less burden on the Doordarshan. I was satisfied with the justification provided by the DG and I had told the DG that the decision can be taken in the interest of the Doordarshan. Later on, the said programme was converted into a Sponsored programme by the DG. I am of the opinion that decision taken by the DG was in the interest of the Doordarshan."
C.C. No. 29/11 24 of 74 25
28. There is statement of one Sh. Shashank Narain, ACP, Office of Controller of Sales recorded under section 161 Cr.P.C. The same reads as under
"I am to state that Good Morning India programme was telecasted on DDI w.e.f. 25.4.96 to 3.2.97 from 7.15 AM to 8.15 AM (Monday to Friday). 189 Episodes of the said programme have been telecasted during that period. Telecast fee of Rs. 25,000/ per episode was taken although in the rate card said fee was Rs. 50,000/. FCT of 720 sec. was given to M/s NDTV instead of 300 sec. on 15.11.96 spot buy Rate was Rs. 15,000/ for 10 sec. 124 episodes have been telecasted up to 14.11.96 and 65 after 15.11.96 to have been telecasted up to 14.11.96 and 65 after 15.11.96 to 3.2.97. In this case, less telecast fee was charged and 420 sec. FCT was given more than the prescribed limit. There is a loss of Rs. 47.25 lakh on account of less telecast fee and loss of Rs. 14,63,70000 towards more FCT. Doordarshan would have earned Rs. 15,10,95000 had the programme Good Morning India been according to the rate cards. Sh. K. S. Sharma the then DG Doordarshan had recommanded rates for the telecast fee and FCT. Controller of Sales had not dealt the file."
29. I am of the view that the statement given by Sh. Shashank Narain is completely off the mark and without taking into account the C.C. No. 29/11 25 of 74 26 nature of financial arrangement which was arrived at between Doordarshan and NDTV. It does not take into account that it was a Joint Production where not only the cost of the programme was to be shared but also the revenue. It proceeds on the basis as if it was a sponsored programme which was produced only by NDTV and NDTV was to be the sole beneficiary of the revenue generated as a result of advertisements.
30. In the light of above discussion it appears to me that it cannot be said that either the DG at that time or any other public officer acted with dishonest intention or there had been any abuse of the official position on the part of any of the public servants to cause pecuniary advantage to NDTV. It also does not appear to me that the decisions taken by the public servants here were against public interest. No offence, therefore, can be said to have been committed in respect of programme "Good Morning India".
NEWS TONIGHT
31. As per the note dated 04/08/94 in file no. DCS/Tonight/95 there was a request received from M/s NDTV for producing a Programme C.C. No. 29/11 26 of 74 27 "Daily's Current Affairs' proposed to be telecast on DDII at 7:45 PM, though I have not been able to find the said letter of request of Sh. Prannoy Roy on record. As per this process note the timing 7:30 8:00 PM was in a 'Special Category' and as per the rate card programmes of current affairs in this category were entitled to 180 second of FCT with sponsorship fee of Rs. 50,000/. There was a reference made to other programmes of similar nature of M/s HTV and M/s India Today in which the FCT was increased from 150 seconds to 180 seconds. There was also reference to the fact that it was reported by M/s HTV and M/s India Today that even after the increase of FCT by 30 seconds they were finding it difficult to retain the quality of production and make the programme viable. Considering the cost of production produced in the same format as the other similar programmes 'Newstrack' and 'Eyewitnesses' it was proposed that FCT be increased to 210 seconds from existing 180 seconds. It was noted that if the sponsorship fee for 'Newstrack' and Eyewitnesses' is reduced then it may also be considered to reduce the existing sponsorship fee of Rs. 50,000/ to Rs. 25,000/.
C.C. No. 29/11 27 of 74 28
32. DDG(RK) had further noted in his note that the two programmes i.e. "Newstrack" though fall in the same category but they fall in the prime time where as programme of NDTV falls in the nonprime time zone. He declined to reduce the telecast fee to Rs. 25,000/ but compensated NDTV by allowing an additional 30 seconds of FCT i.e. to increase it from 180 seconds to 210 seconds. This was approved by the DG and the letter was accordingly issued to NDTV vide letter dated 12/08/94.
33. As it seems the programme did not go on air till February 1995. There were many letters written to Doordarshan by NDTV on different matters. I would, however, like to refer one of the letter dated 22/02/95. From this letter it appears that there was a new rate card which was to come in force from 01/03/95 for the time slot 7:30 - 8:00 PM. According to this new rate card which was to come up, the programmes in that slot were to get FCT of 210, same FCT, which was offered by way of concession earlier with reduced telecast fee of Rs. 35,000/ from Rs. 50,000/.
C.C. No. 29/11 28 of 74 29
34. The request was made that this rate card which was to be effective from 01/03/95 may be advanced by a few days i.e. from 22/02/95 when the programme was to go on air. This request was again repeated in the letter of 23/03/95. The relevant part of the letter is as under :
"This is with regard to our daily current affairs programme "Tonight" which is aired at a nonprime time slot of 7:40 pm, Mondays to Fridays.
a) In our discussions with Doordarshan we were informed that since this is not a prime time slot and since we will be producing a current affairs programme we would be entitled to 210 seconds of FCT. In the latest revised rate list, this slot does indeed have 210 seconds of FCT. In the latest revised ratelist, this slot does indeed have 210 seconds of FCT and a Telecast fees of Rs. 35,000/. We would request that the new list be applied to "Tonight" with effect from 22nd February 1995, the day the programme started. Only this would enable us to fulfill our contractual obligations to our sponsors which have been committed over a one year period.
b) We were also informed that instead of a six day week, we could only be given a slot from Monday to Friday. On the basis of our earlier discussion with Doordarshan we had sold our Saturday slot to sponsors. To prevent us from going back on our commitments, I would be grateful C.C. No. 29/11 29 of 74 30 if we are allowed to use at least 50 per cent (or 105 seconds) of the FCT on Saturdays and spread this our over the Monday to Friday period. We would be prepared to pay the entire telecast fee for the Saturday slot.
c) As you are aware it is very difficult for current affairs programmes these days to get sponsors and costs of production are very high. Two national airlines, Air India and Indian Airlines are keen to display airline news for five seconds each day at the end of the programme. I would be grateful if this could be considered in the national interest and these airlines may be provided news credit lines free of cost for five seconds each.
d) Finally the new spot rate for the 7:40 pm slot has been reduced from Rs. 25,000/ to Rs. 15,000/. I would be grateful if this is reduced to only Rs. 20,000/ or Rs.
22,000/ as such a sharp drop would adversely affect sponsors to the programme."
35. This letter was addressed to the DG. On the margin of this letter it was noted by the DG "this was agreed to in view of the high cost of the programme". The letter was then marked to DCP(Sales). There is no further noting on this issue and a letter dated 05/04/95 was issued apparently because DG had already indicated that the earlier concession was given to NDTV as the programme involved high cost.
C.C. No. 29/11 30 of 74 31 The body of the letter reads as under: "Kindly refer to your representation dated 22.02.95 regarding applying the new Rate Card from 22.2.95 itself instead of from 1st April, 1995. Your request has been agreed to in view of he high cost of production. Therefore, your programme will carry a sponsorship fee of Rs. 35,000/ with 210 seconds of FCT with effect from 22.2.95."
36. I have not been able to find the new rate card on the record as to from which date it actually became effective. The allegation is that NDTV was favoured by making the new rate card applicable with retrospective effect i.e. from 22/02/95 instead of 01/04/95 meaning thereby charging telecast fee of Rs. 35,000/ for 26 episodes from 22/02/95 to 31/03/95 instead of Rs. 50,000/.
37. First of all it may be noted that it was not unusual to extend such benefits in appropriate cases. When this request was considered for the first time on 04/08/94 there was reference made to the other similar programmes viz. "Newstrack" and "Eyewitnesses" where even prior to the request in this case came to be considered, the concessions had been given in those cases may be by increasing C.C. No. 29/11 31 of 74 32 the FCT by 30 seconds. In other words, therefore, the concession by itself given to the NDTV by making the rates applicable from a particular date can neither be said to be something new or unprecedented. In other words concession given for a particular period in terms of the telecast fee itself cannot be said to be sufficient to impute dishonesty. It was also not a unique case where some concession had been given in terms of the telecast fee itself. There was a letter written earlier by NDTV on 31/08/94 as per note dated 05/09/94 ( I have not been able to find the copy of the said letter) where in the request was made for reducing the telecast fee to 50% on parity with the other such programmes. It appears from this note that actually such concession had been given to others also but in case of NDTV for some reason the decision was deferred. The relevant part of the note reads as under: "Mr. Prannoy Roy in his letter dated 31/8/94 has requested for reduction in the telecast fee in the proposed cuurent Affairs programme likely to commence at 7:40 pm on Metro.
He justifies his demand by giving reference of Eyewitness and Newstrack whose sponsorship fee was reduced from Rs. 1.00 lacs to Rs 50,000/ with an C.C. No. 29/11 32 of 74 33 increase in 30'' FCT as well.
M/s NDTV too has been granted additional 30'' FCT; however, it is now requesting for half sponsorship fee. While the request seems genuine in view of Eyewitness/Newstrack but it may lead to a precedence for all other current Affairs programmes.
May please see."
38. The present case is on better footing in the sense that what was being requested was not the reduction of the telecast fee by half which would have come to Rs. 25,000/ by the earlier rate card but making the new rates applicable by which the telecast fee to be paid was to be Rs. 35,000/ from an earlier date i.e. 22/02/95 the date on which the programme had gone on air, which was to be applicable as it seems from 01/04/95.
39. The cost of production was an issue on the basis of which as per the note of 04/08/94 in case of M/s HTV and M/s India Today an additional FCT of 30 seconds was granted. It also, therefore, cannot be said that the cost of production for the producer could not have been a valid reason for giving the said concession. I have not been C.C. No. 29/11 33 of 74 34 able to find any document on record that such a concession was patently unjustified.
40. In respect of the same programme there is an allegation that during the period from 17/07/95 to 18/07/96 NDTV was allowed 300 seconds, FCT instead of 210 seconds as per the rate card. The basis of this change is in the letter dated 03/08/95 written by NDTV to DD first making a grievance of shifting the programme from 9:30 PM to 10:00 PM and then making the request to be granted FCT of 315 seconds on parity with an other programme " Aaj Tak" giving the reason that "Aaj Tak" was a 20 minutes programme which was being given FCT of 210 seconds and since the programme herein "Tonight" was a 30 minutes programme, therefore, proportionately it may be given FCT of 315 seconds. On this letter itself DG had remarked that it may be agreed to since NDTV had moved out of the Prime Time. (Though ultimately the decision was conveyed of granting extra FCT because of the reslotting of the programme but it seems NDTV still stood by its own reason that its claim for increasing FCT was not on account of shifting of the timing but the programme was of a longer duration i.e. of 30 minutes and not 20 minutes). This letter of 03/08/95 after the above noting of the DG was marked to DDG(KK)/SO(CA2).
C.C. No. 29/11 34 of 74 35 There are noting on records which show that as to how the decision to grant 300 seconds of FCT in this case was taken. The extracts of the same are as follows:
"Sub : Banking Tonight As per the decision taken above, we had written to M/s NDTV. However, M/s NDTV have in their letter Flag 'A' requested that Banking period be extended further - by three months.
For advise please.
2. Placed in file is also letter from M/s NDTV regarding higher FCT with Tonight on the plea that Aaj Tak is a 20 minutes programme and Tonight : 30 minutes. However, it be mentioned that sponsorship fee/FCT is given as per halfhour slots or 15 minutes slot. This is for information please.
Can you talk to NDTV."
"Ref : Noting of CS on p. no. 4/n and DDG(KK), noting: pl. discuss with NDTV.
This was again discussed with DG on 9/8/95 by DDG(KK) and CS. The noting of CS was discussed and DG clarified that the 315 seconds of FCT being granted."
41. Accordingly on the basis of the above recordings the letter dated 31/08/95 was written by controller of sales to NDTV informing the decisions taken in the following words:
C.C. No. 29/11 35 of 74
36
"Tonight
Please refer to your letter dated 3.8.95. It has been decided to grant you 300 seconds of FCT with the programme "Tonight" in view of the programme getting reslotted at 10.00 p.m.
2. Your request for banking beyond 3 months has not been agreed to as intimated earlier as well.
NEWS HEADLINES *** ***"
42. The granting of 300 seconds of FCT to NDTV whether it was for the reason that the programme had been removed from the prime slot or there was increase in the duration of the programme, therefore, proportionate increase in the FCT, as conceived by NDTV but the questions remains can it be called dishonest. I did not have the benefit of looking at the rate card of the relevant time as it was not seized during the investigation but to my mind the reason given by the Doordarshan or the reason what the NDTV wanted Doordarshan to consider for the increase in the FCT, cannot be described as not valid reasons for increase in the FCT consequently it would not be possible to call the same as dishonest.
C.C. No. 29/11 36 of 74 37
43. I have seen the statement of Sh. Dhananjay Malvey recorded u/s 161 Cr.P.C. Apart from the general sequence of events narrated in his statement there are two basic allegations which have been made. One that there had been no formal agreement between the NDTV and DD and the other is as to the general allegation that the guidelines with regard to the telecast of the programmes had not been followed. It is always good to have a formal arrangements in such matters which may be laid down viz. the duration of the programme, period of the programme etc. As noted in the note of Sh. K. S. Sharma, DG dated 27/04/96 that absence of settled terms and conditions do lead to an uncertainty. He had given an example of one another programme "Good Morning India" where there was a formal contract entered into between NDTV and Doordarshan. In this note he had also instructed to initiate the process of entering into a formal agreement with NDTV. The question, however, is that it may be desirable to have a contract like this before the programme is telecast but from the point of view of fixing criminal liability can the absence of such a contract be construed as dishonest or against the public policy. To begin with one may note that in case of sponsored C.C. No. 29/11 37 of 74 38 programmes the rates are decided more or less on the basis of rate cards. The scheduling of the programmes as is evident from the record is also in the complete hands of DD as it could vary the timings as and when it would like. There was also nothing stopping Doordarshan for stopping the telecast of any programme if it so desired. Broadly speaking absence of a formal contract was more likely to be detrimental to the interest of an outside producer being a weaker party and not to the Doordarshan. Though there was an allegation that there have been breach of guidelines in this matter but it has not been clarified that as to how the said guidelines have been breached. Even if there were breach of guidelines strictly speaking it is settled principle of law that breach of guidelines in itself do not constitute a criminal offense. It has been stated in the statement of Sh. Shashank Narain, ACP, office of controller of sales that firstly for the period from 22.03.1995 to 31.03.1995 there was lower telecast fee charged i.e. Rs. 35,000/ per episode instead of Rs. 50,000/ and higher FCT given i.e. 210 seconds instead of 180 seconds which resulted in the loss of Rs. 19.5 lacs (loss of FCT) and Rs. 3.90 lacs (lower telecast fee). Similarly, it is stated that for 17.07.1995 to 18.10.1996 the loss was suffered to the tune of Rs. 736.65 lacs on C.C. No. 29/11 38 of 74 39 account of loss towards FCT, though it was stated that on account of telecast fee no loss was caused to Doordarshan during this period.
44. It may be noted that the assessment made by Sh. Shashank Narain of the loss suffered is without taking into account the reasons for which in the first instance of making the new rates applicable from 22.02.1995 instead 01.04.1995 and the reasons for which extra FCT of 90 seconds was granted in the period for 17.07.1995 to 18.10.1996. Taking a mechanical view of loss caused would be of no avail. The loss is to be seen in the light of the fact whether or not there was justification of giving the concession to NDTV, in the circumstances already narrated above.
45. I am of the view the same does not seems to be so unjustified so as to conclude that there was dishonesty involved in taking the said decisions. I have noted above that I did not have the benefit of looking at the rate card prevalent w.e.f. 01.04.1995 and the rate card in existence before 01.04.1995 so as to find out if the said rate card was so inflexible that the rates stated therein could not have been varied in any circumstances.
C.C. No. 29/11 39 of 74 40
46. In the above given circumstances based on the material which has been produced it would not be possible to say that in respect of programme "News Tonight" any criminal offence had been committed.
TODAY
47. While going through the record of this case, I have come across one note dated 11/11/96 which completely gives the entire facts related to this case based on the noting and correspondences. I feel that there would be no better way of stating the facts relating to this matter then to reproduce the said note itself. The note reads as under:
"Being considered on this file is the question of making payments to M/s NDTV for their programme titled 'Today' that was telecast on the DDCNN channel.
2. A perusal of the notings on this file highlights a total disregard of the prescribed procedure in dealing with a case which had financial implications for Doordarshan. Whether any officer(s) can be held responsible for the C.C. No. 29/11 40 of 74 41 above is an issue that will have to be examined separately. For the moment, the approval of the appropriate authority needs to be obtained for settling the claim being made by the producer of the programme, M/s New Delhi Television.
3. The programme 'Today' which was essentially a re packaged version of the programme 'Tonight', being telecast then on the DD2 channel, was scheduled for telecast on the DDCNN channel, Tuesday to Saturday, starting 1st July 1995. A pointer to the adhoc manner in which this decision was taken, apparently at the highest level in Doordarshan, can be gauged from the fact that there is no clarity even in the correspondence of NDTV as to the actual date of the start of the telecast of this programme. At some places it is claimed that it started on 3rd July 1995 whereas at others, payments have been sought for the programme starting from 1st July 1995. The latter date appears to be the correct date, being a Saturday. Furthermore, even though the estimated cost for the said programme of Rs. 1.25 lakhs per day was indicated by NDTV in its letter dated 20th June 1995, the notes made on the said letter (page 1/ cor) seem to suggest that this was received in the DG's office only on 17th August 1995 i.e. over a month after the programme had commenced telecast. The then DG noted on a subsequent reminder dated 26th September 1995 received from NDTV as follows :
'We may agree to Rs. 20,000/ for both TONIGHT/TODAY & First Edition'.
C.C. No. 29/11 41 of 74
42
sd.
R. Basu
27.9.95
4. The case was thereafter not moved to the costing committee then. Instead, financial concurrence was sought for making payments to M/s NDTV on the basis of the utilisation certificate obtained from Pitampura confirming the telecast of the episodes of the said programme.
5. On another summary sheet containing the details of the outstanding payments from Doordarshan submitted by NDTV, there is a noting by the then DG against three programmes. The noting in respect of the programme 'Today' is as follows :
'Rs. 50,000 per bulletin w.e.f the start of 8.30 a.m. bulletin on the CNN sd.
R. Basu 16.10.95
6. NDTV submitted bills claiming payments at the enhanced rate from 22nd August 1995. The report obtained from Pitampura indicated that the shifting of the programme to 8.30 a.m. had taken place from 15th September 1995. The concurrence of the internal finance was obtained in March 1996 for the release of payments to M/s NDTV amounting to Rs. 28.20 lakhs for 87 episodes, 51 @ Rs. 20,000 per episode and 36 @ Rs. 50,000 per episode.
C.C. No. 29/11 42 of 74 43
7. The programme continued to be telecast on the DDCNN channel till 14th August 1996. Additional payments are, therefore, required to be made for a maximum of 200 episodes i.e. from the 88th episode to the 287th episodes telecast on 14.8.96. This is subject to corrections based on the utilisation certificate for the period May to August 1996. The file contains utilisation certificates only upto April 1996, indicating that 123 episodes were telecast during the period 8.11.95 to 30.4.96.
8. The financial implications for 123 episodes i.e. episode 88 to episode 210 amount to Rs. 61.50 lakhs @ Rs. 50,000 per episode.
9. The financial implications for the remaining 77 episodes i.e. episode 211 to episode 287 (subject to deductions, if any, based on actual telecast to be confirmed by the news wing) will not exceed Rs. 38.50 laksh @ Rs. 50,000 per episode.
10. In view of the facts and circumstances of this case, as recounted above, we have little option but to place the entire matter before the costing committee for obtaining its expost facto approval to payments to M/s. NDTV for this programme at the rate of Rs. 20,000 per episode for the first 51 episodes and at the rate of Rs. 50,000 for the remaining episodes actually telecast till the programme was taken off air from 15th August 1996.
C.C. No. 29/11 43 of 74
44
(SANJIV DATTA)
DIRECTOR (ADMN.)
11.11.1996"
48. It appears from the record that prior to reaching to the conclusion as stated in the above note there was also a proposal given by Sh. Rajiv Kumar ACP in his note of 19.09.96 wherein he had given that on parity with another programme "First Edition" wherein the similar circumstances the initial payment of Rs. 2,0000/ was enhanced to Rs. 35,000/, it was proposed that in this case also the amount of Rs. 50,000/ as approved by the DG by his endorsement dated 16.10.95 be reduced to Rs. 35,000/. The said note reads as under:
"As stated earlier 'Today' emanates from the original material of 'Tonight'. The stories in the samples of 6th & 7th Aug. 96 are similar as is usually the case with the programme. However, the anchoring of the Programme is totally fresh and different from 'Tonight'. The piece to camera and reporters identity for 'Tonight' is edited our for 'Today'. NDTV edits the programme on Avid. The use of this computerised editing system allows NDTV a slick repackaging for 'Today' for DDCNNI. At time when the story changes drastically late in the evening, the treatment and placing of stories changes in 'Today'. This may C.C. No. 29/11 44 of 74 45 happen once or twice on an average in a week. Keeping in mind the quality of production, the change of anchor and change of stories as and when the newsfall has demanded, the budgeting for 'Today' was done at Rs. 20,000/ initially. However, the budget of Apca's 'The First Edition' was also reconsidered subsequently and enhanced to Rs. 35,000/. It would be appropriate to maintain parity and consider a fee of Rs. 35,000/ per day for NDTV's 'Today'. From the day DG is deemed to have suggested Rs. 50,000/ for the same at see19.
(RAJIV KUMAR) ACP 19.9.96"
49. There were, however, efforts made thereafter to negotiate with NDTV to let it accept Rs. 35,000/ per episode from 16.10.95, it appears, however, that NDTV did not agree to this proposal. It is in these circumstances in the note dated 11.11.96 reproduced above the proposal of expost facto approval to payment to M/s NDTV for this programme was moved.
50. The note of 28.1.97 of the DG shows that the then DG Sh. K. S. Sarma had accepted it as fait accompli as being no other alternative. It is stated in the closure report that this dispute, however, did not get C.C. No. 29/11 45 of 74 46 resolved and even after this there is a suit filed by the NDTV against the Doordarshan for the recovery of the amount which according to it was due against Doordarshan.
51. Like in the other case in this case also also the major allegation remains that there had been violation of the guidelines in approving the rates to be paid to NDTV.
52. Before going further I would like to highlight a few things here:
(a) It was not unusual for the Doordarshan to have first assigned the programmes to private producers and later on the agreements being signed only at the time when finally the payments was to be made. This thing has been highlighted in one another note of AD(CA II) dated 21.6.96 where it as noted that the agreements were signed after the programme had been telecast. The relevant part of the note reads as under:
"Coming to the monitoring of progress in the financial sanction and signing of the agreement between the Doordarshan and the private producers, it need hardly be mentioned as pointed out by DG and DDG(F), DD:News C.C. No. 29/11 46 of 74 47 has no role at all to play. A cursory look at the clauses of model agreement will indicate that the contract, which relates to inspection of studios to monitor the progress, script and other such factual details of the commissioned programmes, should be signed before the production takes place and not after the programme has been telecast, as per the practice at present when the contract is signed at the time of taking payment. In this regard, the undersigned is of the view that monitoring and signing of the contract should be done by the Directorate and in future the contract/agreement should be signed in the initial stage before the programme gets under production."
(b) Doordarshan did not have a very long experience in dealing with the outside private producers and it had its own organizational problems while dealing with such issues. For reference I would like to reproduce the extracts of the said above note itself, where such problems have been highlighted: "The payment for the commissioned programmes relating to news and current affairs was being done, some years back, at the DDK, Delhi. It is understood, there were some genuine problems and the then OSD(News), Mrs. Bimla Bhalla, had taken was assigned the job for making these payments. Very recently, from this financial year, this work has been assigned to DD:News after HN:DD C.C. No. 29/11 47 of 74 48 was declared Head of Office. I am sure the present problems are the teething trouble, may be because administrative staff has no experience in dealing with payment for commissioned programmes to private producers. So far they were involved in the payments of stringers only where such details like contract, agreement, use of visuals, etc. is not required and payment is made on lumpsum basis for their capsules and therefore the process is much simpler. We should try for some time the new system of DD:News making payments. In view of this, due to past experience there is no merit in transferring the authority for news and current affairs to DDK, Delhi and should remain with DD:News."
(c1) The delay in making the payments to the private producers was not confined to just NDTV as is clear from the above note itself where it was noted:
"However, there are pending payments and private producers should not suffer due to internal differences. As far as payment to private producers is concerned with regard to old programmes which have already been telecast, DD:News should be requested to make immediate payment without further delay."
(c2) It was followed by the recommendation of Spl. Officer(CAII) to create a cell for clearing the pending payments. There have also C.C. No. 29/11 48 of 74 49 been questions that who should be making the payment with regard to such programmes. This can be highlighted from the note dated 22.10.97 of Additional Director(News). The relevant portion of the note is:
"Finally, DG has spoken of the need to set up a Cell on page 10/ante for ensuring speedy payments. Perhaps DG is specifically referring to those pending payments for which conditional sanctions have been issued by the Directorate and therefore, DD(News) has not been able to make the payments. It is here that the Cell can play a coordinating role in ensuring that the sanctions are unconditional so that the pending payments are cleared. List of pending payments is at Flag X".
53. The purpose of bringing on record all the above facts is just to point out that there were internal issues which the DD was struggling to resolve when it came to making payments for commissioned programmes to private producers.
54. Coming back to the facts relating to this programme it may be noted though it has been stated in the above note that perhaps there was not even a letter of request from the side of NDTV before the rd program TODAY came to be telecast on 3 of July 1995. The letter of C.C. No. 29/11 49 of 74 50 th 20 June 1995 on record was in fact received on 17 August, 1995. I would like to note that we are taking about a medium which is visible to all, it is impossible that once the telecast of this programme began it had not come to the notice of everyone concerned . A program cannot be telecast just because someone wants to. There are different sections involved in the whole process. Someone has to decide at what time the program would be telecast; someone will have to decide as to how it is going to uplinked or relayed etc. It would always be on the basis of some instructions. There has not been any attempt to trace this trail during the investigation. Perhaps it could have given us some clue as to how all this started.
55. One may find it strange that NDTV demanded for its re packaged programme Rs. 1,25,000/ per day but the then DG Sh. R. Basu agreed to give Rs. 20,000/ only, which was not just for this re packaged programme but also another repackaged programme "
First addition" by another producer. This was clearly done by him without having the matter examined by the costing committee. It has already come above that in the case of "First Edition" in similar circumstances the costing was done @ Rs. 35,000/ per episode, C.C. No. 29/11 50 of 74 51 though for this programme also Sh. R. Basu had proposed it to be agreed to Rs.20,000/. It would then be difficult to say that by agreeing to payment of Rs. 20,000/ only instead of Rs. 1,25,000/ as quoted by NDTV, there was any favour done to NDTV.
56. From the photocopy of "summary of NDTV's Problems"
received on 16/10/1995( original not available on any file) received in the office Spl. Officer (IM) on 16/10/95. Sh. Basu wrote" Rs.50,000/ per bulletin w.e.f start of 8.30 P.M. bulletin on CNN" . I have found on record one photocopy of note dated 10/11/1995 signed by Director General ( VLF) dated 10/11/1995. It is a kind of follow up of what had been decided on 16/10/95. It shows what had been noted thereon had been as a result of the discussion Sh. Basu had with Dr. Roy of NDTV. Relevant part of it reads:
" A chart of outstanding payment claimed by NDTV as on 16.10.1995 was discussed by the Director General with Dr. Prannoy Roy of NDTV on 16.10.1995.
Certain marginal notes have been made by DG on which a further discussion was held this week with the financial mangers of NDTV in the room of Special Officer C.C. No. 29/11 51 of 74 52 (Ms Indra Mansingh) on 8th and 9th November, 1995.
Various documents have been given to the undersigned by NDTV which are forwarded to current affairs wing for taking necessary action."
57. It is noted in respect of this program " Based on the noting of DG of 16.10.1995. fresh bills amounting to Rs. 42.10 lakhs have now been raised which may be verified and processed for necessary action depending on the facts of the case."
58. The notes of meeting which DG Sh. Basu had with Dr. Roy are not available on record, which may suggest on what bases the said figure had been arrived at. It is not clear if the other officers of Doordarshan were also present during the meeting, it though appears to be certain from the proceeding noted above that members of the costing committee were not present in the meeting or there was no reason to say subsequently that this figure had been arrived at without any costing.
C.C. No. 29/11 52 of 74 53
59. In the same context I would like to add, it may be one thing to say that there was an element of arbitrariness in the decision making and it would be another thing to say that the decision taken was not correct. Costing in such cases after all was not such a complected thing that it was impossible to have been done without the consultation with others. In case of current affairs program, it was not even necessary to hold a formal meeting. In this case when the proposal was put up for holding a meeting of the costing committee granting postfacto approval for payment at the rate of Rs.50,000/ it was noted by CP( N&CA) " All CA programmes are approved by the costing committee through circulation and not at any formal meeting please."
60. It would have made a lot sense if someone had said on merit that, that on independent costing done it was found to have no co relation with the costs incurred by the producer ; the decision taken by the DG was not only arbitrarily but also so incorrect that it was arrived at with dishonest intention to favour the producer ( NDTV) . The approach of arriving at the costing in this case at Rs.35,000/ per episode is flawed on the face of it. The treatment of two program C.C. No. 29/11 53 of 74 54 sometimes can be same but the final value of the product may still differ just because who is presenting it. In any case arriving at the rate of Rs.35,000/ on "parity" with some other program in my view is just not sufficient to say that so much loss has been caused to the Doordarshan and also to impute motive or call it dishonest so as to be described as a criminal offence. I would have found some justification in this assertion if the two programs had been compared objectively on the basis of the technical inputs having gone into it, its presentation etc.
61. As has been noted it would have been far better if the cost of the program had been arrived at independently on its own merit and than reached the conclusion that the Rs.50,000/ as to the cost of the program was so wrong that it could be described as dishonest.
62. There were three parts to this programme in terms of the payment made (I) Episode 1 to 51 for which the payment has been made at the rate of Rs.20,000/ (II) from episode 52 to 87 at the rate Rs.50,000/ as per the above approval - (III) From episode 88 to 123 no payment made. It seems to be a matter which is now under civil C.C. No. 29/11 54 of 74 55 litigation. It may be clarified here that this issue has been examined strictly from the angle as to whether any criminal offence can be said to have made on the basis of the given facts. Doordarshan still can justify in the civil litigation stated to be pending it was justified in offering payment at the rate of Rs.35,000/ to NDTV.
63. In view of the foregoing discussion I conclude that no criminal offence can be said to have been made out.
South Asia News Capsule
64. On 29/10/1994 there a was circular issued by the controller of sales providing the rates of sponsorship fee for the new international channel to be launched by DD to be beamed through satellite though it was meant to be for non resident Indians but it was considered that even the watchers in the foot print area of satellite ( large part of Asia) would find it interesting and entertaining. It was announced that this channel hope to be operational from 15/01/1995.( These rates were revised on 20/02/1995).
C.C. No. 29/11 55 of 74 56
65. There is nothing clear as to how the progress was being made but there is one letter on record dated 02/1/1995 from NDTV stating that it would be happy to provide the capsules for Pakistan, Bangladesh, Nepal, Bhutan, Burma/ Mayanmar for daily news in English. These capsules were to be high quality ( on Betacam SP 3 and utilizing Quantel Paintbox graphics ) interalia it is also stated in unnumbered para 2 of this letter " Doordarshan would carry out the Hindi Translation and voice over itself when required" . This a letter address to Mrs. Bimla Bhalla OSD ( News). It is written on the margin said para 2 " He has to give both. He has been informed about it. + a translation." Though not signed but there is every reason to say it is written by by non other than Mrs Bhalla. In any case her handwriting had been identified by one of the witnesses Sh. Sitanshu Kar. 3 Glossary- http://www.preferredmedia.com/us/knowledge- center/glossary.php BETACAM SP SP (Superior Performance) was an industry standard for most TV stations and high-end production houses up until the late 90s. 340 lines of resolution.
PAINTBOX Trade name of a computer graphics system manufactured by Quantel. Used to create two-dimensional graphics, transpose and transform objects and change colors. The computer graphics generator for Quantel's Harry system.
C.C. No. 29/11 56 of 74 57
66. There is a Memo dated 04/01/1995 on record calling for soft stories to be included in the international news. In the eighth para of this memo it is noted "The source for the bulletins will be our correspondents and some outside agencies who will be specifically providing capsule for inclusion" Meaning thereby that the outside agencies had been identified by this time. This becomes more th evident from the fact that just on 5 January 1995 there was office memorandum issued for by Addl. Director ( News) Sh. Sitanshu Kar th for making arrangement for preparing two dummy bulletins on 9 and th 10 of January, 1995 as this would not have been possible if by this time everything had not been ready including the identification of the outside agency.
67. There is an office memo dated 10/01/1995 on record for taking th a meeting on 12 January 1995 by OSD ( N) I.e Bimla Bhalla ( as per Sitanshu Kar) to discuss arrangement for International Bulletins.
68. It is followed by another Office memo dated 13/01/1995 referring th to the meeting of 12 January 1995, stating that now they would be preparing the India Samachar and India News on real time basis from 16/01/1995.
C.C. No. 29/11 57 of 74 58
69. There are utilizations details on record showing that the news capsules supplied by NDTV were beginning to be used from 19/01/1995.
70. There is a detailed note dated 31/03/1995 of Sh. Sitanshu Kar wherein merits and demerits of the proposals of NDTV and ANI have been discussed including the financial aspect. It ends with the proposal to accept the offer of NDTV with regard to providing news capsule and also proposes to accept the scheme 'A' as stated in the letter of 02/01/1995, with regard to the payment to be made I.e not paying anything in cash but providing FCT of 60 seconds after English and Hindi News over the other offer of being paid Rs. 76000/ by Doordarshan. There is a comment he has made with regard Rs. 76,000/ being demanded by NDTV, which is "Although the cost appear to very high per day, one parallel we can draw is posting of E.N.G. teams in the seven countries from Doordarshan alongwith correspondents. Thus posting a three member team on foreign deputation would involve salaries, accommodations, medical facilities and a host of other expenses mainly in international currencies. This would definitely work out to be more than the amount proposed by C.C. No. 29/11 58 of 74 59 NDTV." With regard to the request received from ANI he had commented " Our experience of dealing with NDTV has been that the quality of NDTV's News capsules has been high with good post production treatment. We are aware that international news stories are properly researched and produced by NDTV as in " The World This Week". In the case of ANI our experience has been that news coverage of various events and functions as in the case Nepal, Sri Lanka and Bangladesh have been provided. However, their scripting, news focus and research leaves much to be desired. Besides, ANI also offers the same news footage to other international networks and agencies."
71. HN:DD puts this proposal for approval to OSD. OSD notes "
Please process quickly" and marks to CP( N&CA).
72. The above proposal originating from the news wing with regard to the payment to be made did not find favor with it. He writes in his note of 07/04/1995 " News Wing has not processed in terms of the rate card already in vogue." Then he gives the details of the approved rates. He also notes " there is no issue for FCT as these capsules are treated as commissioned programmes." He marks it to DDG/HA.
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73. Special officer (CA) does not agree what CP(N&CA). He
recommends, in his note dated 24/04/1995, the acceptance of the
initial proposal by Sintansu Kar AD(N). For differing with the proposal of CP( N&CA) he gives the reason " The rate card referred to by CP(N) in his note on prepage applies to News Capsules in general. However, the proposal on this file are subject specific and area specific. They do not fall in the purview of the existing rate card . Each proposal needs to be looked at from a different and fresh point of view.
74. OSD asks Special Officer (CA) by her note of 24/04/1995, as to how much value the FCT suggested by NDTV work out. On the same day he gives the figure that it would work out to be Rs. 60,000/.
75. It is followed by asking NDTV to provide the break up/ details from neighboring countries for these capsules as per the note of OSD dated 25/04/1995 and matter ultimately gets marked to Sh. Rajiv Kumar ACP ( R).
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76. ACP ( R) write on 26/05/1995 " Break up has been received by FAX. It placed at C/37. Costing has also been done and is placed at C/38. The figure arrived at is Rs.51,750. ..." It may be noted the said FAX cannot be read now as it has completely faded.
77. Special Officer calls for detailed note to be put up, which is finally put on 27/06/1995 by Sh. Rajiv Kumar ACP ( N&CA) giving the background, he makes to the reference to the costing arrived by him. The matter reaches him again for putting the note afresh including the details of costings of other capsules relating to sports etc.
78. The issue with regard to the rate at which the payment was to made still remained undecided. It is noted in the note of CP( N&CA) dated 06/07/1995. " On the footage offered by M/s NDTV there are offers of so many terms, conditions and financial implications as a result nothing decisive came out." It is further noted " In a meeting with DDG ( Fin) Spl. Officer and CP ( N&CA) on 05.07.95, it is learnt that a package deal is being worked out with M/S NDTV for omnibus rights. Pending outcome of package deal with M/s NDTV, it is proposed that above two decisions of spl. Officer and OSD may C.C. No. 29/11 61 of 74 62 kindly be accepted." Two decision here mean two decision with regard to other capsules related to sports and art and culture.
79. Things do not end here. AO( AB) in his note 10/07/1995 once again makes a pitch for accepting proposal initially proposed to by Sitannshu Kar in his note of 31/03/1995 giving the reason that it would prevent the outward cash flow. Spl. Officer (CA I) in her note 27/07/95 reiterates her earlier proposal same as that of AO(AB).
80. The fact remains that during this period of time. NDTV continued to provide the capsules. It is noted by Spl Officer on 27.07.1997 " While negotiating MOU with NDTV we need to provide for payment for the capsules already contributed to DD International."
81. Hereafter the case of NDTV is separated from other cases contributing capsules to DD International.
82. On 14/09/1995, proposal is mooted by costing committee to make payment to NDTV at the rate of Rs.50,000/ per capsule as per costing by Rajiv Kumar ACP (N&CA) for payment after a cycle of 30 C.C. No. 29/11 62 of 74 63 episodes each time for a period of six months pending a package deal with NDTV.
83. Things take a new turn now as to under what head the payment should be made. But going around the issue once again AO ( AB) goes back to same issue of making available the FCT and not making any payment in cash to NDTV in his note of 20/09/1995. Of the same day is the note of Special Officer( CA ) " Pl work out FCT available to NDTV from Feb till date in the light of the suggestion at Z."
84. All these facts are from the file 8/16/95 - PIII. Practically hereinafter there is not much of reference to NDTV and rest by and large relate to issue of making payment to one another producer contributing Art and Culture component to the Intentional News.
85. There is Fax Copy and photocopy on record ( already referred above) with the title " Summary of NDTV's Problem" at Sl. No. 6 is the reference to South Asia News Capsule ( Since 19/01/1995). ( it may noted that the capsules were continued to be suppled till 30/11/1995). This is available in the file 16/1/96 P III. This entire row at sl. No. 6 is like this:
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S.No. Annex. Issue Problem Outstanding
Programme Amounts
(Rs. Lakhs)
6 South Asia Rs. 81,000/ per Nothing received 145
News day sanctioned (Rs.50,000/
Capsule by Mrs. Bhalla apparently
(Since " if this is fully sanctioned - but
19/1/95) capsuled. We this is not
may honour the acceptable to
commitment, NDTV) DG has
Sd asked for a meeting
16/10 to review this.
86. The portion in italics is in the handwriting of Sh. R Basu the then DG. This note has been repeatedly referred to the notes appearing in this file but I could not find the original of this document. I also could not find who had put this summary to DG. As noted above, it, however appears that this decision was taken in a meeting DG had with Dr Roy of NDTV. it is evident from the photocopy of follow up note I could find on the file of the file related to programme TODAY bearing no. 8/14/95 PIII where it is recorded:
" A chart of outstanding payment claimed by NDTV as on 16.10.1995 was discussed by the Director General with Dr. Prannoy Roy of NDTV on 16.10.1995.
C.C. No. 29/11 64 of 74 65 Certain marginal notes have been made by DG on which a further discussion was held this week with the financial mangers of NDTV in the room of Special Officer ( Ms Indra Mansingh) on 8th and 9th November, 1995.
Various documents have been given to the undersigned by NDTV which are forwarded to current affairs wing for taking necessary action."
87. In respect of this programme it is noted further :
" South Asia News Capsule This is being supplied to the News Room from 19.1.95. According to the noting of Director General of 16.10.1995 the commitment of payment for Rs.81,000/ per day may be honoured if it was provided fully capsuled. The Head of DD News will have to certify as to the correctness of the claim. Meanwhile a consolidation bill from 19.1.95 to 31.3.95 of Rs.34,08,000/ and from 3.9.95 of Rs.1,41,75,000/ has been received in this office and is forwarded herewith necessary action including issue of sanction after verification." ( underline supplied) C.C. No. 29/11 65 of 74 66
88. This note is of Sh. Ashok Manshukhani Director General (VLF) dated 10.11.95. This would make it clear that what had been approved by the DG was tentative and subject to it being certified by the Head of DD News. There is nothing on record to suggest that at any point of time any such certification had been given.
89. In any case it led to the processing of payment at the rate of Rs. 81,000/ per capsule. The questions thereafter came up if the DG was competent to accord this approval as it was observed to be beyond financial delegated powers to him. Question also came up under what head the payment was to be made. Matter was also referred to ministry to seek approval etc. The end result was that there was no payment to NDTV. It is informed that there is a civil suit pending between the Govt. and NDTV on this account.
90. I have been able to find on record an agreement and an undertaking on behalf one of the producers contributing art and culture capsules signed on 19/07/1996 for a program to be telecast from 15/10/1995 to 29/02/1996, this was done after a decision had been taken 22/06/1996 to not to accept regular news capsules from C.C. No. 29/11 66 of 74 67 the producer for India News and Bharat Samachar on Doordarshan. It appears to me, the telecast of the program without any proper contract was not unusual with the Doordarshan in those days.
91. The fact remains, what is available on record is the following:
(i) Decision to ask NDTV to supply the capsules was on merit.
(ii) The proposal of NDTV demanding Rs.76000/ per episode plus Rs.5000/ for Hindi Voice over was not unreasonable.
(iii) On the other hand costing by the concerned DD official strictly with reference to rate card was not proper.
(iv) NDTV did provide capsules to DD which were utilized during the period from 19/01/1995 to 30/11/1995;
(v) There has been conclusively no decision that how much and in what way the money should be paid to NDTV;
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(vi) Decision by the DG for making the payment at the rate of Rs.
81,000/ was not conclusive and subject to certificate from Head of News if she had made any such commitment of making payment at the rate of Rs.81,000/.
(vii) No payment has been made to NDTV in this respect and a civil litigation is pending in Court.
92. In the above given circumstances, it can be said first that in the opinion of some for whom quality of the product mattered the money demanded as commissioned fee was not outrightly unjustified and it was not right to take a mechanical view on the basis of some rate card considering that the program was meant to address international audience. Thus decision taken by the DG may look improper in terms of method of taking the decision but it outrightly cannot be dismissed by saying the payment sanctioned was completely unjustified though tentative and as it turned out subject to verification from Head of News if she had made any such commitment.
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93. I am of the view in the above give circumstances no inference of dishonesty can be drawn or any criminal case can be said to have been made out and at best it remains a case of civil dispute. News Headlines
94. There was a letter dated 03.08.95 addressed to NDTV to the Director General giving a proposal for producing 2 min. News on DD2 every hour alternatively in English and Hindi. The proposal included a consideration from the side of NDTV of being provided 20 sec. of FCT for each 2 min. On this letter DG had passed the orders for starting up with the Headlines as proposed from 7 PM from "coming Monday". The precise words used were "we may start this from 7 PM without interfering with MTV. This could start from Monday." This was marked to S.O.C.A/C.P.(Metro).
95. The noting in the file no. 4/12/95PIII would show that "Monday" here meant 07.08.95. The broadcast of programme accordingly commenced from the same date. The decision was taken to charge the telecast fee on prorata basis on half hour/15 min. slots. It was C.C. No. 29/11 69 of 74 70 worked out apparently on 09.08.95 and a telecast fee of Rs. 3000/ was proposed which was approved by the DG with the 20 sec. of FCT. There seems to be nothing on record to suggest that the telecast fee thus worked out was either not proper or it was not paid by the producer.
96. Though it is not stated but it seems that this program was a teaser for the news based program of the same producer " The News Tonight". It is clear from the letter dated 16/10/1996 written to Dr Roy by Sh. V.V.K. Shastri Controller of Programmes ( N&CA) to inform about not extending further telecast of this program. It was stated in this letter:
" Please refer to our letter No.4/12/95 PIV/CA II dated September 16,1996 regarding Headlines and Surkhiyan.
Consequent upon the termination of ' the News Tonight' on DDII, it has been decided to withdraw the offer made to you in the above mentioned letter for a two minute headlines in English at 8.30 PM on DDII with effect from October 21, 1996."
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97. If it was conceived to be teaser to a particular program then it does not appear to me that there was any reason to have asked anyone else to have produce this program. Therefore, statement of one of the witnesses Sh. S. Srinivasan " Today, I have been shown Ministry of Information and broadcasting guidelines for telecast of the programme. I am to state that offer from other parties were not obtained according to the file." carries no meaning.
98. In the above given circumstance where there is no allegation of any unjustified payment being to NDTV no criminal offence can be said to have been made out.
Non Submission of details of Foreign exchange
99. Initially when the TWTW was given to NDTV ( earlier M/s Pronnoy Roy & Associates) for production as a commissioned programme one of the terms of payment was that out of the total fee of Rs. Two lakhs fifty percent of the same was to be paid in USD. NDTV was supposed to provide the details of its utilization to Reserve Bank of India and Director General Doordarshan . Out of the total C.C. No. 29/11 71 of 74 72 amount of 50% it could claim in foreign currency NDTV had claimed 30% only. These payments related to the year 1988/1989. When the details of the same had been asked during the investigation it was informed by RBI by letter dated 12/3/98 that the details of the same cannot be provided as the record related to the period 198899 had been destroyed after the expiry of the period prescribed for the preservation of record. In other words it has been submitted before this court that since the record related thereto is no longer available nothing can be said about it.
100. In the absence of any material being available to substantiate the allegations of misutilization of foreign currency in NDTV received as part of payment, no offence at this stage can be said to have been made in connection with this matter.
Utilization of Technical facilities by NDTV without payment
101. The relevant part of the final report reads as under:
"Investigation disclosed that certain technical facilities including use of VISNews feed were allowed to NDTV by C.C. No. 29/11 72 of 74 73 DD, through DD Kendra, Mumbai in 1988 when the programme started as a Commissioned programme. The VIS news footage was allowed free of charge but technical charges were to be paid. As informed by Sh. S.K. Bhatnagar, Station Engineer, Mumbai vide letter dated 09.03.98 no bill were raised from the Kendra for uplinking/downlinking and feeding any feeds o microwaves to M/s NDTV.
The facility of VISnews recording to NDTV was discontinued in early 1994. Recording on BETA Cam / U Matic High Bank facility was accorded to NDTV and no microwave facilities were provided. Nominal amount of Rs.175/ for 30 minutes was to be charged. Investigation revealed that recording used to be done by Engineering Assistants and there were about 70 Engineering Assistants at Mumbai Kendra, many of whom have retired from service. There is no record to sow how NDTV was actually allowed to utilise the technical equipment of DD Kendra, Mumabi. This practice continued till early 1994.
It had not been possible to fix the responsibility of any individual for allowing such technical facilities to NDTC and for not raising the bills for the technical charges. Infact it appears to be a total failure of system. It has been ascertained that subsequently DD had issued guidelines for preventing recurrence of sch happenings.
Investigation did not reveal any quid pro quo between officers of DD and NDTV that could have influenced them C.C. No. 29/11 73 of 74 74 for not issuing bills for providing recording facility on BETA Cam/ U Matic High Bank to NDTV.
Hence the allegations could not be linked to particular individual."
102. It is a matter where there is no evidence to connect any accused with either for not raising bills on NDTV or realization of the amount due on above account. It is also not certain if it was deliberate or as result of failure of coordination within the Doordarshan. I am of the view that no offence can be said to have been made out on this account as well.
Conclusion
113. in view of the foregoing discussion and the facts and circumstances of the case I am accepting the final report in this case under section 169 of the Code of Criminal Procedure, 1973.
Announced in the Open Court ( L. K. GAUR )
on 3rd July , 2013 Special Judge (CBI)9
Central District, Delhi
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