To,

Shri Alok Verma

CBI Director,
Central Bureau of Investigation, Head Quarters
Plot No 5-B, CGO Complex,
Lodhi Road, New Delhi-110003

Dear Director,
15.10.2018
Ref: Air-Asia Scam

Sub: Complaint under sections 13(2) r/w 13(1)(d), Prevention

of Corruption Act, 1988 and under National Security Act,
1980 read with Section 120B, Indian Penal Code, 1860 by
the following accused persons:

1. VENKATARAMANAN RAMACHANDRAN (A 1)
Managing Trustee Of The Sir Dorabji Tata Trust; Director
Of M/S Air Asia (India) Ltd, Bengaluru, Karnataka And R/O
Flat No. 302 , Sterling Heritage, Husing Road, Gamdevi,
Hughes Road, Gamdevi,39,N.S. Patkar Marg, Near
Babulnath Temple, Mumbai-400007 (Maharashtra).

2. ANTHONY FERNANDES aka TONY FERNANDES (A 2)

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Group Chief Executive Officer (GCEO) of M/s Air Asia
Group, Malaysia.

3. THARUMALINGAM KANALINGAM aka BO LINGAM (A 3)

Deputy GCEO of M/s Air Asia Berhad, Malaysia.

4. RAJENDER DUBEY (A 4)
Director of M/s HNR Pte Ltd.,Singapore & R/o H. No. D-
104, Wembley Estate, Rose Wood City , Gurugram,
Haryana

5. SUNIL KAPUR (A 5)
Chairman Of M/S Travel Total Food Services, 1 , Rashid
Mansion, Worli Point ,Mumbai-400018.

6. DEEPAK TALWAR (A 6)
Principal Founder Of DTA Consulting, New Delhi And R/O
101-102, 109 Oriental House, Gulmohar Enclave,
Commercial Complex, Yusuf Sarai, New Delhi.

7. M/S. HNR PTE LTD. SINGAPORE (A 7)

Singapore, 51 Jalan Saying, Singapore 418665 & 83,
Rosewood Drive, 02-62, Parc Rosewood, Rosewood Drive
Singapore 7337789.

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8. M/S. AIRASIA INDIA (LTD.) (A 8)
Ground Floor, Alpha 3, Kempegowda International Airport,
Devananhalli, Bengaluru- 560300.

9. M/S. AIRASIA BERHAD, MALAYSIA (A 9)

Kuala Lumpur International Airport, Sepang, Selangor,
Malaysia

And

10. OTHER UNKNOWN PUBLIC SERVANTS OF MINISTRY

OF CIVIL AVIATION AND THE THEN FIPB, GOVERNMENT OF
INDIA, NEW DELHI AND PRIVATE PERSONS. (A 10)

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Dear Director,

1. The Government of India permitted private parties to apply

for grant of permission to operate scheduled air transport
services in terms of the Aircraft Act 1934.

2. Various private airlines were granted licenses to operate

schedule air transport under the Aircraft Act 1934 and the rules
thereunder. On 30.06.2008 DGCA issued the guidelines i.e. Press
Note 6 for Foreign Direct Investment in the civil aviation sector,
but it prohibited domestic airlines from having any agreement
with foreign airline, which may allow the foreign airline or any
other on its behalf to have effective control over the domestic
airline or which may give foreign airline, right to interfere with
the management of the domestic airlines.

3. Thereafter, on 10.04.2012 DIPP issued consolidated FDI

policy of India stating the foreign direct investment policy of the
government of India which had various requirements and pre-
requisites for the applicability of the policy.

4. In furtherance Cabinet Committee on Economic Affairs

(CCEA) note was prepared by MoCA and sent to various
Ministries, Planning Commission and DIPP for their consideration

4
and comments. On 10.09.2012 the CCEA approved the CCEA
Note as proposed by the MoCA. No additional suggestions
allowing a Greenfiled Airline Project in India was
incorporated in the said approval. Thus, only investments in
existing airlines were allowed as per this note.

5. The PIB Press Release clarified that the government

rationale for permitting foreign investment by foreign airlines into
domestic airlines was for their operations, service upgrade and
recognition of the fact that denial of access to foreign capital
could result in collapse of many of our domestic airlines, creating
a vital gap in the country’s infrastructure. Thereby acknowledged
the national interest in the revision of FDI policy in favor of the
operating domestic airlines.

6. The revision in the FDI Policy was affected though the Press
Note No. 6B (2012 series) issued by the DIPP.

7. As per Directorate General of Civil Aviation’s (hereinafter

DGCA) Aeronautical Information Circular 12 of 2013, clause 4 sub
clause 1 (1.5) a scheduled airline “shall not enter into an
agreement with a foreign investing institution or a foreign airline,
which may give such foreign investing institution or foreign
airlines or others on behalf of them, the right to control the
management of the domestic operator.”

5
8. In August, 2013, the Foreign Investment Promotion Board
(hereinafter FIPB) amended the existing policy stated in clause 2
sub clause (f) of Foreign Direct Investment (hereinafter FDI)
amending the definition of “control” in existing policy and the
new definition reads- “control shall include the right to appoint a
majority of directors or to control the management or policy
decisions including by virtue of their shareholding or management
rights or shareholder’s agreements or voting agreements.” COPY
OF THE POLICY IS ANNEXED AS ANNEXURE A-1

9. Rule 134(1) and 134(1A) read with Schedule XI of the Air

Craft Rules, 1937 framed under the Air Craft Act, 1934 require
that a permit/license/permission to operate an airline would be
granted either to a citizen of India or a company or a body
corporate having its principal place of business in India and its
Chairman and at least two-thirds of its Directors are citizens of
India and substantial ownership and effective control is
vested in Indian Nationals. COPY OF THE POLICY IS ANNEXED
AS ANNEXURE A-2.

10. In furtherance, as per the Guidelines for Foreign Direct

Investment in Civil Aviation Sector issued by the DGCA also on
1st March, 2013, the decision of the Government of India was to
permit foreign airlines also to invest in the capital of Indian

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Companies "operating scheduled and non-scheduled air transport
services" up to the limit of 49% of their paid-up capital.

11. Then, for review of the FDI Policy in Civil Aviation Sector, a
meeting of the Cabinet Committee on Economic Affairs was called
to consider the proposal, "to also permit foreign airlines to invest
in the capital of Indian companies operating scheduled and non-
scheduled air transport services up to the limit of 49% of their
paid-up capital on the Government approved route"

12. The FIPB had on 3rd April, 2013 granted approval to M/s Air
Asia Investment Limited, Malaysia to incorporate a new Joint
Venture Company with a foreign equity of 49% and with the
balance 51% equity to be held by M/s Tata Sons Limited and M/s
Telestra Trade Private Limited for carrying on scheduled and non-
scheduled air transport services in the country;

13. The hasty grant of approval of FDI in a company yet to

be incorporated and which was not engaged in operating
scheduled and non-scheduled air transport services is
contrary to the FDI policy permitting FDI only in existing
airlines.

14. That the aforesaid provisions of law relating to substantial

ownership, effective control and national security have

7
been knowingly and willfully violated by a premeditated scheme
between Air Asia Berhad (hereinafter AAB), Air Asia (India) Pvt.
Ltd. (hereinafter the Company), Air Asia Investment Ltd.
(hereinafter AAIL) and Tata Sons Ltd. (hereinafter TSL) and the
other accused No.1 to No. 10 named above in the instant
complaint and is evident from the following-

15. FIPB in contravention of FDI Policy and cabinet note have

allowed a foreign investment proposal by a Malaysian entity
operating foreign airline namely “AIRASIA” into a Greenfield
airline i.e. non-operating airline (yet to be incorporated on the
date of the proposal ) that was clearly contrary to extant FDI
policy (press note 6 of 2012 dated 20.09.2012), decision of the
cabinet committee on economics affairs (or the CCEA) dated
10.09.2012 as well as to the guidelines notified by the concerned
ministry being the ministry of civil aviation on 01.03.2013, which
permit foreign investment by foreign airlines only in operating
airlines to exclusion of any Greenfield airlines.

16. The procedural mandate and objective of the India’s FDI

Policy was to allow only an incorporated and existing airline
company in India to divest its equity to foreign collaborator. The
impugned administrative decision was thus contrary to the policy
rather it also permits the private beneficiary of such decision to

8
circumvent regulatory procedure intended to secure and
safeguard national interest and security.

17. M/s. Air Asia (India) Limited a joint venture between M/s.
Tata sons Limited, M/s. Telestra Trade place Pvt. Ltd. & M/s. Air
Asia Investment Limited, Malaysia. M/s. Air Asia (India) Ltd.
(AAIL) submitted applications to the then Foreign Investment
Promotion Board (FIPB) of India in February, 2013 and received a
formal approval in April, 2013, followed by the No objection
certificate (NOC) in September, 2013 and Air operating permit
(AoP) in May, 2014 for carrying out domestic aviation in India.

18. FIPB gave the clearance for the Minister’s approval despite
the nodal Ministry, the MoCA laying down a pre-condition which
was never met prior or post the FM approval on 24.03.2013. The
term “operating scheduled and non-scheduled air transport
services” has been defined by the DIPP and explicitly exclude
“Greenfield” airlines.

19. Hence the FIPB clearance and FM approval is illegal because

it is an administrative decision contrary to notified executive
policy as adopted by the cabinet note. Thus, the initial No
Objection Certificate given subsequently by the Ministry of Civil

9
aviation on 24.09.2013 to M/s Air Asia Investment Pvt Ltd is thus
malafide and illegal and contrary to its own stand in the FIPB

20. Moreover, para 10.1 of the Civil Aviation Requirements

(CAR) issued by DGCA under Rule 133A of the Aircraft Rules,
1937 dated 17.05.2000 mandate the applicant to get security
clearance from Ministry of Home Affairs (MHA) and no-objection
certificate from the Ministry of Civil Aviation (MCA). COPY OF THE
POLICY IS ANNEXED AS ANNEXURE A-3.

21. In this matter, it is of import to note that a particular

Director (Mr. Ramadorai) of Air Asia India Ltd. had not received
requisite security clearance from Home Ministry and was
holding up issuance of AOP whereafter an email by Accused 2
dated 19th August 2013 discloses how a devious scheme was
adopted to generate aviation licenses and then, get the uncleared
Director back on the Board thereby resulting in a breach of
national security. In the said email, Accused 2 writes to Accused
1 - “I’m really frustrated how we screwed up here. But the
solution is simple. Get Ramdorai to step down temporarily. Get
the licence and then put him back in. Why are we wasting so
much time Mittu. You and Bo havent delivered one thing on time
yet. Really pissed off.” COPY OF THE EMAIL IS ANNEXED AS

10
ANNEXURE A-4. This clearly shows AAB (AIR ASIA BERHAD)
have conspired to obtain permissions and security clearances by
fraud and misrepresentations, which would have serious
implications on our national security.

22. The details of the Shareholders agreement expose the

entire scheme to first obtain permissions illegally and then
to the transfer control to the foreign partner (AAB) who
was not eligible under the Indian law and for security
purposes from effectively controlling airline. The
Shareholders agreement (SHA) is attached as Annexure 5.

A. The term ‘control’ under Para 2.1.7 of the FDI policy is

defined to include ‘the right to appoint a majority of the directors
or to control the management all policy decisions including by
virtue of the shareholding or management right or shareholders
agreements or voting agreements’. However, as per Clauses
5.2.1 and 5.2.2(ii), of the total number of directors (viz. 6), TSL
and Telestra can appoint 2 and 1 respectively which constitutes
right to appoint merely 50% i.e. less than majority of the Board
strength. Hence, none of the Indian shareholders of the Company
(TSL and Telestra), neither individually nor collectively, have the
right to appoint majority of the directors on the Board of the
Company.

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B. It is to be noted that the appointment of key personnel by
Indian partners is one of the key tests to show effective control
rests with the Indian partner, in line with Press Note 6 of the FDI
regulations governing the aviation sector. As the facts reveal,
both the CEO (Mittu Chandilya) and the CFO (Vijay Gopalan) were
selected by AAB. The the contract of CEO duly signed by Accused
no. 2 is Annexed as Annexure - 6

C. That the complete control of AAB over AAI is also evident

from the correspondence between the legal counsel of AAB and
Tata Sons. The email shows the intent of the party at the time of
negotiations of the Shareholders agreement It reveals that the
right to select the CEO and CFO were given to the Indian partner
for “optical purposes” only, despite being part of the SHA
(clauses18.3.1 and 18.3.2) Excerpt of email from Amir Zakaria,
Head of legal of AirAsia BHD to the Accused’s : “you would also
note that we conceded (for optical purposes) that the right to
nominate the CEO and CFO was at the discretion of TSL” Copy of
the email dated 06.04.2013 is annexed as ANNEXURE A-7.

D. As per Clause 9.1, Air Asia Investment Limited (AAIL)has

been conferred with affirmative veto rights with respect to
matters set out in Schedule 1 Part A. Thus, actions such as
issuance of equity securities, redemption or buy back of securities
or amendment of AOA/MOA cannot be done without the prior

12
written approval of AAIL. Thus, on account of such veto rights,
AAIL despite being only a 49% shareholder and having only 2
board nominees out of 6 can block decisions. Therefore, ‘effective
control’ is not vested in the Indian nationals.

E. As per Clause 8.2, no business shall be transacted at any

General Meeting without prior written consent of the Shareholders
of the Company holding at least 75% of the Share Capital. The
threshold of 75% essentially requires the approval of AAIL for any
additional agenda in a general meeting. Thus, AAIL has been
conferred a special right in relation to management of the
Company in this regard.

F. As per Clause 9.4, no action can be taken in respect of

matters set forth in Schedule 1 Part B without the consent of
AAIL. As a result, AAIL have been conferred with veto rights as
regards the matters specified in Schedule 1 Part B. Thus,
decisions such as matters relating to financial commitments
entered into by the Company, adoption of or amendment to
business plan and/ or budget, entering into a related party
transaction, change in senior management including CEO, CCO,
CFO and other key employees etc. – would require affirmative
vote of AAIL.

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G. As per Clause 3.5, Tata Sons contribution to the Company’s
equity has been capped at USD 9 million. When read conjointly
with Clause 12.4 – which states that if applicable law does not
allow AAIL to acquire further securities in the Company, AAIL
may assign or designate to a Designated Person its right to
acquire securities provided that all accruing rights under the SHA
stay with AAIL – the meaning arises that while TSL cannot
participate in future issuance of equity, AAIL can increase its
stake and circumvent the hard cap of 49% foreign ownership.

H. As per Clause 13, AAIL has been conferred with veto rights
over the offer size of the Initial Public Offering.

I. As per Clause 17, if AAB is unable to acquire all or some of

the Trigger Event Securities due to a restriction under applicable
laws, AAB may nominate any other Person(s) to acquire such
number of Trigger Event Securities that AAB is unable to acquire
directly subject to certain conditions. This has the same effect of
circumvention of the hard cap of 49% foreign ownership as AAB
may increase its stake by bringing in its own favorable persons as
shareholders. Thus, the test of substantial ownership by Indian
Nationals stands diluted.

J. As per Clause 18.1.1, no Branding Guidelines and Operating

Requirements may be adopted or implemented without the

14
unanimous consent of all shareholders. Thus, AAIL has been
conferred with veto rights in this respect as well.

K. As per Clause 18.6, prior written approval of all shareholders

is required before the initiation or settlement of any litigation
against Regulatory Authorities. This invariably dilutes the test of
effective control with Indian nationals.

L. As per Clause 18.11, any change to the auditors cannot be

made without the prior written consent of all shareholders.
Similarly, under Clause 18.15, the principal office of the Company
cannot be shifted from Chennai without the prior written consent
of all shareholders. This makes it evident that the effective
control of the Company does not rest with the Indian nationals.

M. All these clauses read together clearly proves that the Indian
shareholders were in conspiracy with the foreign partner to
illegaily bypass and circumvent the laws dealing with effective
control.

23. Additionally, the details of a separate Brand License

Agreement (BLA) show the next step in the conspiracy by
the Accused to fraudulently secure permissions, by
concealing crucial documents from the Government of

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India. The full BRAND LICENSING AGREEMENT is annexed
as Annexure- A-8.

24. BRAND LICENSING AGREEMENT

According to Schedule 4 of the aforesaid, entitled Operating

Requirements, the Company is to comply with the sole
discretion of AAB in respect of the following matters:

A. Ancillary Revenue – The Company shall offer products and

services as determined by Air Asia Group’s ancillary team. This
includes, but is not limited to, excess baggage, pick-a-seat, hot
seat, Air Asia insure, red carpet, in-flight food and beverages and
duty-free. “New products and services developed by The
Company shall first be approved by Air Asia Group’s ancillary
team. The pricing and appearance for products will be set by Air
Asia Group’s ancillary team in consultation with the licensee.”
Even third-party providers of ancillary products and services for
The Company shall first be approved by Air Asia Group’s ancillary
team.

B. Branding – The Company has to contribute 1% of gross

revenue to the parent firm, which will also cover the base
sponsorships of Air Asia Group properties including but not
limited to Queen’s Park Rangers FC, the ASEAN basketball league

16
and MotoGP Australia and Japan title sponsorships, the
agreement notes.

C. Revenue Management – The Company’s revenue

managers will report to Air Asia’s group revenue management.
“Fare classes terms and conditions and prices will be set by Air
Asia Group’s revenue management team with recommendations
from the licensee on local pricing and promotional fares. The
licensee (The Company) shall adhere to fare classes determined
by Air Asia Group’s revenue management team. The licensee’s
pricing strategy shall be determined in agreement with Air Asia
Group’s revenue management head.”

D. Engineering – All major engineering-related purchasing or

leasing contracts (aircraft, engine, landing gear, maintenance
checks, etc.) has to be done on the terms approved by Air Asia
Group. Engineering support services such as technical services,
contracts, warranty and reliability, materials, planning and
records are to be conducted by Air Asia Group except where local
regulations require local compliance. Management of aircraft
specification and configuration with Airbus and aircraft parts shall
come from AirAsia Group’s pooling of spares and to be managed
by AirAsia Group’s team on a best effort basis. “Major variations
from the above policies to comply with the local regulation shall

17
be approved by AirAsia head of engineering prior to variation
being adopted.”
E. Finance/Corporate Finance – The Company needs to
“support and uphold agreements with Air Asia Group’s joint
venture partners including but not limited to BIG, Air Asia
Expedia, Tune Hotels and Tune Insurance”. The Company shall
also “produce and provide to Air Asia monthly management
accounts in the form and manner as required by Air Asia Group’s
finance team”. Air Asia Group’s CEO will provide input and
approve annual budgets for each airline with Air Asia Group,
including the Licensee.

F. Flight Operations – All initial and recurring training is to be

done at Kuala Lumpur-based Asian Aviation Centre of Excellence
(AACE), an Air Asia Group company, using Air Asia Group’s
syllabus. All systems and processes, including IT systems,
currently in use by Air Asia Group are to be utilized and embraced
by The Company. It also cannot “enter into any negotiations with
any vendor for any system of equipment without prior approval of
Air Asia group’s flight operations team”.

G. Catering – All in-flight products and services (including but

not limited to food and beverages and merchandise) and pricing
thereof shall be approved by AirAsia Group’s catering and in-flight
services team.

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H. Marketing – Appointments to managerial positions are to
be approved by the chief commercial officer and respective Air
Asia group heads. The positions include, but are not limited to,
marketing, sales, distribution, route revenue and commercial
public relation roles. “Commercial structure, headcounts budget
and task outline of the licensee shall be approved by Air Asia
Group’s CEO and CMO.”

I. The Brand license agreement was such that even vendors

selection was done by the foreign partner. With regard to the
selection of a vendor (AirAsia Group Shared Services), emails
exchanged by the AAB officials show that the vendor selection
process held by the Company board was just a charade and that
the final selection would be the AAB appointed vendor.

J. Tony Fernandes would often threaten and force the CFO of

the Indian arm to sign off on related party contracts. (The CFO
was requesting the approval of the The Company’s Board as the
on-boarding of AGSS was a related party contract, which upset
Tony). Excerpt from his email: “Vijay do not Fuck around and
play politics with me or you will be fired in 24 hours. You fucking
sign. I will ensure that you will not pay more than you cost now
.You can't fucking pick and choose what you want. Brand, planes

19
 expertise and then don't follow others.” The tone and tenor of
the email clearly shows it was AAB that was controlling the
operations of the company. Copy of the email is annexed as
Annexure A-9.

K. Tony Fernandes would even explicitly states that The

Company (AAI) was a group company of AAB. In an email dated
31 December 2013t to all the heads of AirAsia units operating in
other countries, Tony writes: “Again I stress that we need
everyone’s support to make this work. We are One Group, One
Brand and One Dream. GSS is there to support and work with the
Group.” Copy of the email is annexed as Annexure A-10.

23. The Board knew that any material change against their FIPB
application status was to be shared with the Government. This
non-compliance was specifically highlighted in a Board meeting
held on 21st March 2015 as part of the compliance and
governance presentation.

24. Excerpt of Board Presentation

“The current BLA has not been submitted to the FIPB
There are certain risk factors in the BLA, if submitted
under court order, could be detrimental to the Joint
Venture:

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 a. The clauses including those relating to Pricing of ticket
revenues wrests complete control with AAB.
b. The functions have a dotted line of reporting to AA group
regional heads,
c. The CEO reports to GCEO, AA Group
d. The reporting lines mentioned in the BLA in various places
point towards pre-approvals needed from AA group heads.
e. The BLA seems to be treading a thin line from an EMC
perspective.” (emphasis supplied)

25. The above clearly shows that the Board was part of the
conspiracy to hoodwink the Government of India and were party
to the nefarious designs of the foreign shareholder. The emails
described above, along with the numerous infringing clauses
present in the SHA and the BLA indicate the premeditated intent
of the conspirators. This is further highlighted by the fact
that the Brand Licensing Agreement was not placed for
approval by the FIPB. This resulted in defrauding of the
government agencies and acting in a manner prejudicial to the
defence and security of India, as the government effectively had
no clarity on where control actually lies.

26. It is further revealed that the shareholders and Indian

partners at the joint venture, including the board
members, were not only aware of these intentions, but

21
actively conspired in committing illegal violation of FIPB
norms.

27. That it is evident the Air Asia India board was aware that the
“effective control” was being surrendered to the foreign partner
under the Brand Licensing Agreement as only Malaysians were
signatory to this between themselves and therefore, this also
shows a reflection of the sham agreement that Tata facilitated to
hoodwink the Indian government. (Newspaper Article in Live Mint
dated: 04 May 2016). COPY OF THE ARTICLE IS ANNEXED AS
ANNEXURE A-11.

28. In an email dated 3rd November 2016 the former Email CEO
Mittu Chandilya virtually confesses that AAI was indeed controlled
by AAB. The email marked to Tony Fernandes and Ramadorai
(Chairman of the Board). An excerpt as stated below:

“Regarding the Controlling Issues: The Media appears to be

aware of lot of approvals that came from Tony and wanted my
validation on the same regarding the controlling issues and who
actually approved lot of day to day activities and it was rather
surprising that the Media House have lot of information in this
regard.” In response, Accused 2 doesn’t deny any of the contents
of the email, but just notes that the leaks to the media was not

22
from AAB. COPY OF THE EMAIL IS ANNEXED AS ANNEXURE A-
12.

29. Moreover, reporting of key personnel was directly to Air Asia

Berhad in Malaysia which further shows the effective control was
surrendered to the Malaysian Group CEO Accused 2 by the AAI
(Air Asia India) Board. The following functions namely: Sales,
Marketing, Budgeting, Advertising, Ancillary Revenue, Network
Management, Pricing, Revenue Management, Cargo Operations,
Human Resources, IT and Strategy all reported directly into the
Malaysian headquartered Air Asia Berhad. Incidentally, even the
Regional Operations Control Centre, which handles flight dispatch
and crew rostering was done out of Malaysia which was a
violation of the AOP terms. An email from tony Fernandez
showing the organizational changes clearly demonstrates
this is annexed as Annexure A-13.

30. In a recent order National Company Law Tribunal, Mumbai

Bench, C.P. No. 82 (MB)/2016 in the matter of Cyrus Investors
Pvt. Ltd and Anr. Vs Tata Sons Ltd and Ors. It was held that
AirAsia India Pvt. Ltd is a joint venture with Malaysian company,
AirAsia Ltd., and the management is run by AirAsia Ltd. Relevant
para of the Order is stated below:

23
Para 240
“In this issue also, AirAsia India Pvt. Ltd. has not been made as a
party to the proceedings nor its management, which is fatal to
the maintainability of the petition on the ground of non-joinder of
parties, moreover, it is a joint venture with Malaysian
company, AirAsia Ltd., and the management is run by AirAsia
Ltd., therefore, the directors of AirAsia India Ltd . appointed on
behalf of the company cannot be blamed for something happened
in that company.

31. Thus, it is clear from the above judgement that AirAsia India
was effectively controlled by the foreign partner AAB. This finding
by the Hon’ble NCLT, Mumbai Bench proves that the accused’s as
a part of conspiracy made misrepresentations, committed fraud
and breached national security.

32. It is also important to note that many senior official from the
AAB (AIR ASIA BERHAD) were in touch with other unknown public
servants of ministry of civil aviation and the then FIPB,
government of India, and other private persons to get circumvent
the legal requirements and licenses to initiate their scheme of
corruption and have total control over substantial ownership,
effective control of AIR ASIA INDIA.

24
33. That Email dated 25th October 2013, from Venkat to Bo is
documentary proof of how the accused were in conspiracy with
various Government officials and public servants for getting illegal
permissions to set up AirAsia India and get waivers from
mandatory requirements as well as alter existing policies to suit
their needs. The email is annexed as Annexure A-14.

34. The Central Bureau of investigation is also looking into

alleged acts of corruption inviting fictitious companies in the
AirAsia Scam. One such company is HNR Trading. Documents
signed by Accused no.2 shows that instructions to hire shell
company to handle the 5/20 and other regulatory hurdles came
from the very top. Infact the authorization is seemingly derived
from a board meeting of AirAsia India held on 21st march 2015.
Copy of the Minutes of the Meeting is Annexed as Annexure A-
15.

35. The letter refers to the board meetings of Air Asia India held
on 21st march 2015 in Hyderabad. This meeting was also
attended by Mr. Ratan Tata, the chief advisor to AirAsia India.
The role of Mr. Tata and the rest of the board in authorizing the
use of fictitious companies to manage regulatory framework
needs to be investigated. The copy of the letter is enclosed as
Annexure A- 16.

25
Accused 1- 3 intentionally chose to beat the legal frameworks and
policies of the aviation sector of India. Accused 1 was involved in
lobbying with stakeholders in the Government of India to secure
mandatory approvals, some of them through illegal means,
including the then Foreign Investment Promotion Board (FlPB)
clearance, NOC and the attempt for removal/modification of 5/20
rule. Information has further revealed that the controllers of M/s.
Air Asia (India) Ltd. Accused 1 and 2 pressurized their CEO Mr.
Mrithyunjay Chandilya to pursue the matter regarding the change
of the then regulatory policies for the international aviation in
India suitable to them.

During the year 2015-16, M/s. Air Asia (India) Limited remitted
about Rs.12.28 crores to M/s. HNR Trading Pte. Ltd., Singapore
for a sham contract on the basis of a bogus agreement on plain
papers, which was utilized for paying bribe to unknown public
servants of Government of India and others for securing permit
for operation of international scheduled air transport services
through Mr. Deepak Talwar of DTA Consulting and Mr. Sunil
Kapur, Chairman, M/s. Travel/Total Food Services, who acted as
lobbying agents. Mr. Deepak Talwar in his presentation
mentioned about the strategy to engage with officials of several
Ministries including the agenda for removal of the then 5/20 rule
for which a payment of Rs. 17,42,632/- was made to him. Mr.
Rajender Dubey had played a role as a liaison agent and was

26
instrumental in seeking appointments and facilitating meetings
for officials of AAIL with the various Indian Government officials
for clearance of various formalities in Government of India.

Now, real controller of M/s. Air Asia (India) Ltd. Accused 2

wanted the airline venture to be able to fly internationally from
day one and their local Indian partner i.e. M/s. Tata sons Ltd.
through their nominee Accused 1 would lobby to get ail
Government approvals including the then FIPB clearance and
amendment/removal of existing 5/20 rule of Indian International
Civil Aviation. The 5/20 rule was laid down by Ministry of Civil
Aviation on 29.04.2004. The 5/20 rule was an eligibility criterion
of a minimum of 5 years’ experience of continuous operation of
domestic scheduled air transport services and fleet size
requirement of a minimum out 20 air craft’s and the said
eligibility criteria needs to be fulfilled for flying internationally.
The details of these transactions are under investigation and the
FIR is enclosed as Annexure A-17.

38. Foreign control of domestic airspace not only creates

inequitable competitive environment but also has serious
security implications. This is because foreign-controlled Indian
airlines will lead to unhindered access to defense airfields and
loss of control over Indian Airspace. In this regard, even those
countries who have strained foreign relations with India may use
this window to gain access to India.

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39. It is evident from documents, facts and circumstances that
Air Asia Berhad and all the accused’s involved falsely prepared
documents and created optical illusion for the purpose of securing
permission from the Government of India with a premediated
conspiracy to illegally grab control of domestic airlines by foreign
airlines violating norms of FDI and cabinet notes and other laws
stated above. They also got the entire license cleared by
unknown official of the ministry thus, breaching national security
and security clearance requirements of MHA. Also, the following
functions of AAI namely: Sales, Marketing, Budgeting,
Advertising, Ancillary Revenue, Network Management, Pricing,
Revenue Management, Cargo Operations, Human Resources, IT
and Strategy all reported directly into the Malaysian
headquartered Air Asia Berhad as documented above.
Incidentally, even the Regional Operations Control Centre, which
handles flight dispatch and crew rostering was done out of
Malaysia which was a violation of the AOP (annual operation plan)
terms. Many key personnel had no civil aviation background
which was a pre-requisite for appointment but still were ratified
by the Air Asia India Board which further proves that all
operations were controlled only by Malaysians. This shows
conspiracy between the accused to present a false picture for
obtaining permissions, whereas in reality the BLA and Share

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Holders Agreement were drafted and set up to violate various
provision of law mentioned above.

40. The above information, documents and circumstances prima

facie discloses commission of offence punishable under sections
13(2) r/w 13(1)(d), Prevention of Corruption Act, 1988 and
under National Security Act, 1980 read with Section 120B,
Indian Penal Code, 1860 by the above named accused A-1 TO
A-10. Hence, I request you to register an FIR and investigate as
per law.

Yours sincerely,

Dr. Subramanian Swamy

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