HC and lower court acquitted all defendants
Notwithstanding the judiciary had already questioned the Office of the Attorney General (OAG) for appealing the Nubri case to the High Court, the OAG and the Anti-Corruption Commission (ACC) have decided to appeal the case to the Supreme Court (SC), Kuensel learnt.
The High Court last week acquitted the three defendants. One of the defendants in connection with the investment of Nu 100 million in Nubri Capital Private Ltd. said that the two institutions are appealing to the SC. “The SC might summon us very soon,” he said.
However, both investigation and prosecuting agencies declined to comment.
HC’s ruling on July 20 stated that there was no basis to appeal when the state prosecutor failed to prove the accusations “beyond reasonable doubts”. HC quoted section 92 (2) of the Civil and Criminal Procedure Code (CCPC), the burden of proof in a criminal case, which states that finding of liability against one or more of the parties can only be given when prosecution to the full satisfaction of the court has established a proof beyond a reasonable doubt.
After reviewing and hearing the case, three judges, in their ruling, observed that the state prosecutor should have charged the defendants for justice and not a conviction for prosecution. “Under the criminal jurisprudence, the state must seek justice over conviction,” HC’s ruling stated.
HC acquitted the former Royal Insurance Corporation of Bhutan Limited (RICBL) executive director (ED) and two general managers. The court reasoned that the RICBL had benefited from the investment of Nu 100M million in Nubri Capital and not ED.
OAG appealed to the HC in April this year after the Thimphu dzongkhag court exonerated ED Sonam Dorji and two general managers. The ED, Sonam Dorji, who was one of the promoters and shareholders of Nubri Capital, was charged for failing to declare a conflict of interest, official misconduct and forgery while two general managers were charged for official misconduct.
The grounds of appeal to the HC were that the former ED was charged for failing to declare a conflict of interest for having participated in the financial transaction committee meetings despite being the active promoter of the Nubri company. OAG had stated that being the architect of investing Nu 100M in Nubri, ED had participated in RICBL’s asset liability management committee (ALMC) meetings. ALMC is a forum where prudent decisions on credit, fund mobilisations and assessment are taken.
On the charges of commission amounting to an abuse of functions and forgery the OAG framed against Sonam Dorji, the lower courts stated the decisions to invest in Nubri Capital were made by the ALMC, which was later endorsed by the technical advisory committee of the board and the board of directors.
In their appeal to HC, OAG had stated that Sonam Dorji, with intent to benefit Nubri Capital, knowingly directed the general manager of AFD, Yeshey Jamtsho and the general manager of CID, Kinzang Dorji, to invest in bond redemption of Nu 100M with Nubri Capital and to execute the contract thereof.
OAG had stated that both general managers confessed to the investigating agency and the court that they merely acted upon the instruction of the ED. It also stated that since both general managers had already pleaded guilty over a plea bargain agreement, they established a valid ground for an appeal derailing further deliberation.
However, both courts also acquitted Yeshey Jamtsho and Kinzang Dorji reasoning that the duo executed decisions taken by the committee.
The last date to appeal as per the procedure court is tomorrow, August 4.
Meanwhile, about 20 individuals including three defendants in the Nubri case, were acquitted by the various courts in the last five years as prosecuting and investigating agencies failed to submit evidence beyond a reasonable doubt.
Some practising lawyers said that OAG and ACC should respect the rule of law and courts’ rulings, especially when different courts passed the same judgments. They pointed out that the courts are there to bring check and balance between the two agencies and must have trust and confidence in the courts.