Sunday, January 27, 2013

My primary rebuttal of OAG charges submitted on 12th November, 2012

The Hon’ble Dasho Drangpon
Royal Court of Justice
Thimphu Dzongkhag                                                                                       Dated: 12 Nov. 2012

Your Honour,                                                                                      

Sub: The fabricated allegations of Attorney General

May it please Your Honour,

The Office of Attorney General has filed a case against me on behalf of Dasho Ugen Tsechup Dorji and Tenzin Lekphell under the Anti-Corruption Act 68(I) and 68 (II). I find the allegations, made in their petition dated 5/10/2012, most absurd.

I request the Royal Court of Justice to examine the validity of the Case filed, since the OAG is in breach of both Legal mandate and due procedural process.

A. I. The OAG is in breach of its mandate under OAG Act. It is supposed to represent the Government not private citizens.
II. The OAG filed a Case under Anti-Corruption Law without having it routed through the Anti-Corruption Commission. If RBP or OAG had deemed the Case to be of a corruption in nature, then they are required to follow the due process under established procedures that have been put in place by the Nation. The complaint of Dasho Ugen Tsechup Dorji and his colleague should have been re-directed to the Constitutional Body that deals with Corruption.

Both OAG and RBP know that it is not a Corruption Case. So the two Institutions did not involve Anti-Corruption Commission. Instead they colluded to fabricate the allegations and file a Court Case just to garner favour with the very influential Dasho Ugen Tsechup Dorji.

B. The OAG alleges that ‘without consulting anyone’, I had kept Nu: 27,94,698 out of the total sum of Nu: 35,00,000. The OAG’s use of the phrase ‘without consulting anyone’ is a breach of legal ethic by the highest Legal Agency of the Government. Therefore, it is an act of ‘perjury’ that warrants appropriate penalty from the Royal Court of Justice.

I firmly and unequivocally deny the allegations framed against me by the OAG in its petition dated 5th Oct. 2012 submitted to the Royal Court of Justice, Thimphu. The baseless allegations and out of jurisdiction Case of OAG needs to be dealt with the contempt it deserves and dismissed.

As a response to this OAG fabricated allegation, I have this to say to the Attorney General in the words that he would comprehend because he had recently used the same to respond to Anti-Corruption Commission. There is no legal basis to pursue this matter through the Court because the facts of the Case do not correspond to the legal provision cited by the one who has become also the personal Attorney General of Dasho Ugen Tsechup Dorji, to attach criminal sanction.

The Attorney General seems to be in the habit of misusing his official post to garner favour with big shots. In doing so he does not seem to be mindful of the harm his action is causing to the sacred Royal Institution. For example:

For the 1st time in public knowledge, he had rejected a Prosecution Case forwarded by the Anti-Corruption Commission. And this Case is about Gyalposhing Land allotment where recipients include Royal Family members, Prime Minister and Ministers as per ACC notification.

Before OAG rejected the Case, the general public may have been under the impression that the Land Allotment Committee favoured big shots. Now after the rejection of the Case forwarded by the Anti-Corruption Commission, the general public is made to think that the Attorney General is carrying out the orders of the big shots. So the Attorney General’s attempt to garner favours for his selfish personal gains has further maligned the Government and the sacred Royal Institution through no fault of theirs. This Land Allotment Case could have been managed in a far more publicly palatable way without maligning any party.  
Likewise, he has got his Office to file this Case on behalf of Dasho Ugen Tsechup Dorji in his pursuit to garner personal favour but in the process he is exposing real or imagined royal influence. He should have advised Dasho Ugen Tsechup Dorji to directly approach the Royal Court of Justice. That way any real or fictitious grievance could have been addressed by the Court without public display of any inference of Royal influence.
The Royal Bhutan Police has also over played its hand in accepting the complaint of Dasho Ugen Tsechup Dorji through a Jabmi and then forwarding it to OAG for prosecution to bolster Dasho Ugen Tsechup’s stand. I wish to bring two issues to the attention of the Royal Court.
a) An ordinary Bhutanese needs High Court approval to appoint a Jabmi.
b) There was an embezzlement Case at Bhutan National Bank in Gelephu by the two top Bank Executives there. The Superintendent of RBP in Gelephu was personally involved in arranging fund for the two top executives to reimburse the embezzled fund. Did the Royal Bhutan Police forward the Case to the OAG?
I feel that the Chief of Police and the Attorney General are misusing the two important law enforcement and legal arms under the system of national governance to make possible the persecution of innocent people by the rich and socially powerful elites without them putting in even a minute of their personal time or a Cheltrum of their money.

It is recorded in the Minutes of the Board Meetings that Dasho Ugen Tsechup Dorji wanted Bhutan Times to be a ‘Political Paper’ and his Promoter friends had stated that financial profit was not their priority. Now they have in their possession the ‘Political Paper’ for 2013 Elections and they have also in their possession the Printing Press to print out the propaganda materials they require for the campaign. What more do these people desire? There seems to be no end or limit to the greed of the rich and socially well placed people. Why do they need to trample over everybody?

Regardless of Dasho Ugen Tsechup’s influence and the willingness of RBP and OAG to be his henchmen, I cannot be made to fund their ambitions. It is most shameful and disgusting that in-spite of the overwhelming evidence that underscored the proper financial transaction carried out in the generally accepted corporate norms, the Chief of Police and Attorney General have made it their Institutions’ responsibility to fabricate wrong doing in order to take up the cudgel for Dasho Ugen Tsechup.

I hereby submit the facts regarding the payment of Nu: 27, 94,698.

The sum of Nu: 27,94,698 was sanctioned and paid by Mr. N.B. Ghalley the competent authority of Bhutan Times Ltd. to the S.K.Y. Family against the buyback of 27,399 Shares and refund of TDS. Mr. N.B. Ghalley was the competent authority managing the closing affairs of Bhutan Times Ltd. As per the decision of the Promoter Group, the then Managing Director Kaka Tshering handed over his responsibilities and charges to Mr. N.B. Ghalley in the 1st week of June, 2012. Prior to that, on 23rd March, 2012, the Promoter Group accepted the resignation of Kaka Tshering and conferred upon Mr. N.B.Ghalley, the Finance Officer,the responsibility of dealing with payments to Parties. Therefore Mr. N.B. Ghalley held both the managerial and the financial responsibilities of Bhutan Time Ltd. He was holding the position of the Stand-in Managing Director cum Finance Manager and managing the closing affairs of Bhutan Times Ltd.

The amount consisted of two payments: one was the face value of my family’s 27,399 Shares of Bhutan Times Ltd. at Nu: 100 per Share which comes to Nu: 27, 39,900. And the other was the refund of Nu: 54,798 that had been retained by the Management as TDS deduction from the 2008 dividend payment. However, the Management was not able to deposit this TDS amount with Revenue Department as it was required to do so. Thus my family had to pay the income tax on the dividend in 2009 when PIT was filed. Therefore that amount was due to us.

The payment of Nu: 27, 94,698 was made from the available cash amount of Nu: 35, 00,000. There is no other separate Account which could meet the required payment. It was decided in the 5th AGM held on 31st May,2012 that cash balance would be used on priority basis to meet the commitments and obligations made in AGMS, Board Meetings and dues of the Management ( reference serial no: 6(a) of the minutes of the 5th AGM). And the balance of Nu: 7,05,302 from the Nu: 35,00,000 was deposited into the Checking Account of Bhutan Times Ltd. opened with Druk PNB, Thimphu. The issue as to how the cash of Nu: 35,00,000 came about is submitted in a separate statement attached to this response for the Royal Court’s kind reference, information and understanding.

Under the buyback arrangement approved by the 3rd AGM of May, 2010, the original Share Certificates of my family was surrendered to the Bhutan Times Management and accepted by the Stand-in Managing Director cum Finance Manager. He then paid the face value of the Shares and also refunded the TDS amount. A formal receipt for the payments received by my family was also handed over to the Bhutan Times Management. The transaction was completely executed in line with generally accepted norms of the corporate financial procedures.

There is no question of any wrong doing let alone keeping a sum of Nu: 27,94,698 without consulting anyone as alleged by the Attorney General.

Mr. N.B. Ghalley was already familiar with the buyback arrangement of Shares by the Corporation. In February, 2012, the Management of Bhutan Times processed the buyback procedures of 40,000 Shares of Tenzin Rigden. He was paid by way of adjustment against the Nu: 4.5 Million cash dues of CICCC ( Citizens Initiatives for Coronation and Centenary Celebrations). He along with few prominent Promoters was responsible for the CICCC venture that caused huge losses for the Corporation. The face value of Tenzin Rigden’s 40,000 Shares is Nu: 4 Million and the due was Nu: 4.5 Million. So he benefited by Nu: 4,20,000 after taking into consideration his eligibility for the refund of TDS amount of Nu: 80,000.

The buyback arrangement of my family Shares and that of the Shares of Tenzin Rigden was discussed and approved during the 3rd AGM of 28th and 29th May, 2010. However, for various reasons, the decision of 3rd AGM could be implemented by the Management only in 2012.

The buyback of my family’s Shares was based on the takeover of Bhutan Times Ltd. by the Promoter Groups ( 2 groups) through bifurcation between them the two main parts that constituted Bhutan Times Corporation Ltd. The two parts are : (a) Bhutan Times Newspaper and (b) Bhutan Times Printing Press. The Serial No: 4 of the Minutes of the 3rd AGM held on 28th and 29th May, 2010 provides full details of the bifurcation arrangement.

The Promoters had also executed an undertaking that legally binds them to the implementation of the bifurcation arrangement. My stand that my family being among Minority Shareholders would not join the Promoter Groups and instead have the Corporation buyback our Shares was accepted and endorsed in the AGM.

In June, 2010, Dasho Ugen Tsechup Dorji took over as the Chairman of Bhutan Times Ltd. He then deferred the implementation of the AGM approved bifurcation plan. AGM is the Supreme Body of a Corporation and both Board of Directors and the Management must adhere to the decisions and directives made in the AGM. Therefore, the deferment is not legitimate especially when there is already a legal undertaking executed by the Promoters to abide by the decision taken in the AGM on the matter of bifurcation. Even then because of his social position, it is necessary to be patient and swallow the bitter pills he dishes out.

However, by 1st April, 2012, the Promoter Group under the leadership of Dasho Ugen Tsechup Dorji had taken over both the Bhutan Times Printing Press and the Bhutan Times Newspaper. They did not do it in a clean and legal way as decided in the 3rd AGM but never the less they took over through mala-fide maneuvers.

The taking over of Bhutan Times Printing Press and Bhutan Times Newspaper.

The Bhutan Times Printing Press located at Jemina was leased to Mr. Kinga of Galing Press for a period of 10 years from 1st June, 2008 to 1st June, 2018. The annual lease fee was Nu: 2 Million. Dasho Ugen Tsechup Dorji and his Promoter Group colluded with Mr. Kinga to surreptitiously take over the Printing Press. They cancelled the Lease Agreement effective 1st June, 2011 and then in December, 2011, the same Printing Press was sold to same Mr. Kinga at a ridiculously low price of Nu: 2.9 Million. And the building that housed the Printing Press was rented out to him at a monthly rent of Nu: 15 Thousand. No business person would agree to sell a property that had a guaranteed income of Nu: 2 Million a year for 10 years period for just Nu: 2.9 Million unless it involves under table dealing or serves an ulterior purpose. In other words, the Promoter Group in collusion with Mr. Kinga now possesses a Printing Press at a tiny fraction of its original cost. 

The Bhutan Time Newspaper has been hijacked by the same Promoter Group led by Dasho Ugen Tsechup Dorji. On 1st April, 2012, the publication right of Bhutan Times Newspaper was transferred to IMS (Institute of Management Studies) which is owned by Tenzin Lekphell under an eye-wash Contract Agreement. IMS is a Management Institution not a Publishing House. Moreover IMS was refused a Newspaper Publishing License by the Ministry of Information and Communication a year back precisely because IMS is a Management Consulting Firm and had nothing to do with publishing business. IMS is just a front for the Promoter Group who actually now owns the Bhutan Times Newspaper.
The eye-wash Contract Agreement states that the contract is for one year. However since the Promoters have already destroyed the corporate and management structures of Bhutan Times Ltd., there is no way of reverting Bhutan Times Newspaper back to a non-existing Corporation.

The Board of Directors of Bhutan Times Ltd. comprise of 10 Directors of which nine are Promoters including the Chairman and I was the lone Director from among the Minority Shareholders. I had stopped attending the Board Meetings because the Promoters decide everything beforehand and use the Board Meeting to rubber stamp their decision. Towards the end of March 2012, Mr. Kaka Tshering the then Managing Director informed me over phone that the Promoters had decided to contract out the publishing of Bhutan Times Newspaper to their fellow Promoter Tenzin Lekphell who runs IMS. I told him that such critical decisions cannot be made by Promoters. It had to be discussed in a formal Board Meeting and then put up to the AGM. It seems Kaka Tshering conveyed my views to the Promoters. So they decided to pre-empt any objection I would raise especially in the AGM. They postponed the convening of the AGM which was proposed on 5th April, 2012 according to the Minutes of the 17th Board Meeting held on 6th March, 2012. Instead they immediately closed down Bhutan Times Corporation and dismissed all employees on 1st April, 2012 with one month pay in lieu of one month notice period. From the month of March itself, they had fixed the costs of Bhutan Times remaining Assets without involving the Managing Director or the Finance Manager and bought the same for themselves. Some of the Assets were divided among themselves without making any payments.

They are professional con-men who have developed professionalism in camouflaging illegal activities quite deceptively. They dismantled the Management structure of Bhutan Times Ltd., dismissed the employees, took over the Bhutan Times Printing Press under the guise of sale to Mr. Kinga and took over the banner product ‘Bhutan Times Newspaper’ under the guise of contracting its publication to IMS. All these unscrupulous acts were completed by 1st April, 2012. Then on 31st May, 2012, the Board of Directors Meeting was convened in the morning and the AGM in the afternoon. The Shareholders were informed that the Corporation had been closed down on 1st April, 2012 due to stiff competition from the other Newspapers and financial losses. It was two months too late for anyone to reconstruct Bhutan Times Corporation. I had rebuilt Bhutan Times into a sound financial footing after it went bankrupt in September, 2009 but that time the organizational structure and the infrastructure assets were in place. It was also futile to exchange war of words. I told Dasho Ugen Tsechup Dorji that I was against the IMS deal. In response he told me that the deal was executed by other Promoters in his absence. And later when they informed him, he had to go along.

I knew I could retrieve my family investment in accordance with the decision made in the 3rd AGM. However, it seemed that the Promoters had no intention to refund the investment made by other Minority Shareholders.  I decided to file a Case to make the Promoters refund at least the capital of the Minority Shareholders who, like my family, had bought the Shares of the Bhutan Times sold by the Promoters through floating of Public Shares.

I was able to collect most of the documents and also gain a clearer picture through informal discussions. However on 23rd June, 2012, the Management produced a hard copy of the email correspondence of 20/03/2012 between Dasho Ugen Tsechup Dorji and Kaka Tshering. It confirmed that Dasho Ugen Tsechup Dorji was fully involved. Then and there I told the Management that I was surrendering my family Shares under the buyback arrangement and walking out from Bhutan Times for good. I wanted nothing further to do with any issues that related to old Bhutan Times and its Promoters.

Until this revelation, I was determined to file a Case as a Minority Shareholder Director on behalf of all Minority Shareholders and therefore I could not relinquish my family Shares as that would legally disqualify me as a Minority Board Director of Bhutan Times Ltd. But with Dasho Ugen Tsechup Dorji playing the central role for the Promoters, I just cannot file a Case against him. He is an uncle of our Nation’s most sacred Institution, His Majesty the King of Bhutan. Filing a Case against him could easily be misunderstood and misconstrued. And moreover in-spite of embracing democracy and independence of judiciary, no Bhutanese citizen, business entity or civil or legal agency would be prepared to take on Dasho Ugen Tsechup Dorji.
I never wanted nor still want to initiate a Court Case against Dasho Ugen Tsechup Dorji or any other person related to the Royal Family. My deep respects for the Royal Institution and the decorum ingrained in me by national culture and tradition,would never allow me to oppose real or imagined interests of such personalities.

In regards to the grievance of Dasho Ugen Tsechup Dorji and Tenzin Lekphell, I have this to submit to the Royal Court of Justice.

That a Bhutanese has the right to approach the Court to get his or her grievance addressed. And if the grievance is against me, I feel it is my duty and responsibility as a Bhutanese citizen to answer them in the Royal Court of Justice. But how can I be subjected to this blatant aggression carried out by the RBP and OAG on behalf of Dasho Ugen Tsechup Dorji? Will the Royal Court of Justice protect me from this aggression? The Chief of Police serves at the pleasure of the Supreme Commander of the Defense Forces of Bhutan, His Majesty the King and the Attorney General is answerable to the Hon’ble Prime Minister of Bhutan. Therefore, must I again appeal to the two National Institutions to rein-in their Appointees and permit private grievances to be settled in a Court of Law without blatant display of aggression and influence by the RBP and the OAG on behalf of Dasho Ugen Tsechup Dorji and his colleague? Under the prevailing situation, I have immense doubt whether any Court of Justice in Bhutan would be free of undue influence and stress to be able to dispense Justice in a fair manner.

If this Case filed by OAG on behalf of Dasho Ugen Tsechup Dorji and his colleague Tenzin Lekphell is not withdrawn or thrown out and I am forced to go through court proceedings then I have no option but to answer the demands of Court procedures in like manner.

Accordingly, I beg to seek the kind permission of the Royal Court of Justice to file Counter Charges against the criminally motivated Promoters of Bhutan Times Ltd. Dasho Ugen Tsechup Dorji the Chairman, Tenzin Lekphell, Dago Beda and Phub Zam the Promoter Directors who actively engineered and engaged in the activities of corporate crimes listed below:

1.      They have knowingly and willfully deceived the Shareholders and betrayed their trust, the trust with which the company was built in the first place. Informing the Shareholders only after two months of dismantling of the Corporation was a calculated move with intent to deceive and thwart any attempts to foil their takeover plans. What they have done is a breach of public trust. They should be charged for corporate deception and manipulation which has led to the collapse of the only fully publicly owned media organization in Bhutan.

2.      Against my vehement objection and pleadings, the Promoters pushed through the deal for Bhutan Times Ltd. to partner in CICCC in 2008 that caused more than a crore ngultrum loss. The Managing Director Tenzin Rigden had to forfeit his Nu: 40 Lakhs Share value because of this folly. Therefore, the Promoter Directors must also forfeit equal amount because they supported wholeheartedly the same venture with him.  Only I, as a Minority Shareholder Director, vehemently opposed the venture but I was out voted. Dasho Ugen Tsechup himself has confirmed to the Shareholders during the 5th AGM that the CICCC venture ruined the company and that the then Managing Director Tenzin Rigden and Promoters were responsible for the debacle of the Corporation. A part of his address to the AGM is quoted herein:

1(c) “The other major setback for Bhutan Times was its forced participation in the CICCC by MD Mr. Tenzin Rigden who managed to convince some Promoters.”

3.      The Bhutan Times Printing Press at Jemina was leased to Mr. Kinga of Galing Press for a period of 10 years from 1st June, 2009 to 1st June, 2018 at an annual lease rent of Nu: 2 Million. The Promoters first cancelled the Lease Agreement as of 1st June, 2011 at the request of Mr. Kinga and then again sold the Printing Press to him for only Nu: 2.9 Million in December, 2011. That was the over the table price. What could have been under the table price? Dasho Ugen Tsechup and those Promoters must make good the losses that the Company suffered because of this shameful price fixing. How can a Printing Press that was leased out for Nu: 2 Million a year for a period of 10 years be sold for only Nu: 2.9 Million to the same person? It is an act of criminal daylight robbery and under table dealing. They had to have pocketed the difference or it was just a fictitious sale to gain ownership for them.

4.      Dasho Ugen Tsechup, Dago Beda, Tenzin Lekphell and Phub Zam engineered the coup that resulted in IMS not only taking over ‘Bhutan Times Newspaper’ but also all its related production system free of any cost. There was no formal Board of Directors Meeting to discuss the issue nor was the approval of AGM sought. The available record clearly shows that the Chairman and the Promoter Directors were involved in the heist to satisfy their greed for money and power. It is a criminal act of blatant robbery and total breach of trust by the Chairman and the Promoter Directors of the Corporation.

5.      The Promoters fixed the rates of the assets of the Corporation and then bought those items themselves. The Managing Director and the Finance Manager of the Corporation were not involved in the evaluation of the Assets. Only socially powerful people like them are able to indulge in such corporate crimes with impunity.
6.      In contracting out the publication of ‘Bhutan Times Newspaper’ to IMS, they have engaged in Business Fronting which is illegal as per Trade and Industry Regulation.
7.      They have also breached the BICMA Regulation by contracting out the publishing of ‘Bhutan Times Newspaper’ to IMS which is not a publishing house. It is a Management Consultancy Firm. In fact IMS was denied Publishing License by the Government for these very reasons.
8.      They must also refund the investment of other Minority Shareholders to the tune of Nu: 4.06 Million because the Promoters have taken over all the assets of the Corporation.

9.      According to the financial report of the Finance Manager, the decisions of the Promoter Directors are solely responsible for the loss of Nu: 4.2 Million for the year 2011. Therefore they have to be held liable for the losses.

They have shamelessly flouted their social and money power and have recklessly caused the disintegration of a very prominent Corporation. They must be made accountable for the lost investments, lack of corporate ethic and for breaching trust of Shareholders and transgressing all corporate norms and laws governing the licensing and business operation of a Corporation. They have to be held responsible for the loss of the capital investment as well as the yearly profits that a Corporation normally makes.

I humbly and very earnestly beg the Royal Court of Justice to please review their criminal activities under the Penal Codes 265, 267, 287, 512 and  Civil and Criminal procedure code 108 and 108 (I). And in addition, order them to restitute under Penal Code 46 the following financial losses of the Corporation inflicted by them.    
1. The Promoters share of CICCC financial losses suffered by
the Bhutan Times Ltd.                                                                                     Nu: 45,00,000
2. The Financial loss from cancellation of Lease Agreement of
the Printing Press for the period covering 1st June,
 2011 – to – 1st June, 2018 ( 20,00,000 X 7 years = 1,40,00,000 )
less Nu: 29, 00, 000 sale proceeds of Printing Press.                                     Nu: 1,11,00,000          
3. Refund of capital to other Minority Shareholders since the
Promoters have taken over all the assets of Bhutan Times Ltd.                       Nu: 40,60,000
4. Compensation for deliberately causing losses for the year 2011
as reported by the Finance Manager in the 18th Board Meeting.                      Nu: 42,13,465
The total sum of Nu: 45, 00,000 + Nu: 1, 11, 00,000 + Nu: 42, 13,465 = Nu: 1, 98, 13,465 should have been the profit of the Corporation. My Family is entitled to 6.84% of this profit which comes to Nu: 13, 55, 241. The other Minority Shareholders is entitled to 10.16% of the profit which comes to Nu: 20, 13,048. The sum of Nu: 40,60,000 represents the investment made by the other Minority Shareholders who had been left high and dry after the Promoters hijacked the Corporation and, therefore, the same must be refunded to them.

Most respectfully and humbly, I beg to submit the above submissions to the Royal Court of Justice in response to the allegations filed by the Attorney General on behalf of Dasho Ugen Tsechup Dorji and his business colleagues.

I beg to remain

Most Respectfully

( Sangey  )
Jushina Village, Thimphu.Tel. No: (02) 322126 / 17667003 .

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