The Commission for the Investigation of Abuse of Authority (CIAA) has appealed to the Supreme Court, expressing dissatisfaction with the verdict of the special court in the Nepal Airlines Corporation's wide-body aircraft purchase case. The Commission on Tuesday moved the Supreme Court a year after the special court convicted four Nepalis and seven foreigners and acquitted others.

The CIAA had filed a case against 32 people, including 24 Nepalis, three foreign nationals, and various foreign companies and their key individuals involved in aircraft supply, on 22 Chaitra 2080. The special court, in its verdict on 20 Mangsir 2081, had found the amount of Rs 1.47 billion, 1.085 billion, 482 crore as per the CIAA's demand, but had decided to recover the amount from only 11 people. Expressing dissatisfaction with that, the CIAA has demanded that all 32 be punished as per the charge sheet. 

The bench of the then chairman of the special court, Justice Tek Narayan Kunwar, and member judges Tej Narayan Singh Rai and Ritendra Thapa, had convicted the then chairman/general manager of the corporation, Sugat Ratna Kansakar, former secretaries Shankar Prasad Adhikari and Shishir Kumar Dhungana, and joint secretary Buddhisagar Lamichhane.

Foreign nationals Deepak Sharma, Oleg Calistru, John Holmes, Ana Topa, Paulo Mirpuri, Gerald Thornton and Christian Neuhelen were also found guilty. Sharma is a British citizen of Nepali origin. He is the then head of aircraft supplier company International Supply Chain and AAR International Inc. America. Neuhelen, a Romanian/Moldovan national, is a director of Hifly X Ireland Limited and a representative of German Aviation Capital. 

Calistru is the finance director of German Aviation Capital and Holmes is the chairman and CEO of AAR Corporation Inc. America, Topa is the managing director of German Aviation Capital GmbH Germany and Mirpuri is the chairman of Hifly Airlines/Hifly Transport Aeros Portugal. Holmes is the CEO of AAR and Thornton is a director of Hifly X. 

Former Tourism Minister Jeevan Bahadur Shahi, then members of the Corporation's Board of Directors Jeevan Prakash Sitaula, Teknath Acharya, Nimanuru Sherpa, Mukti Ram Pandey and Achyut Raj Pahadi were acquitted in the aircraft purchase case. The then Acting Director Ramhari Sharma Sedhai, Deputy General Manager Janakraj Kalakheti, then Director Ganesh Bahadur Chand, then Acting Director Karna Bahadur Thapa and then Deputy Director Prabhas Kumar Karmacharya were also acquitted by the special court. 

Similarly, senior pilots Subash Rijal, Shravan Rijal, Rabindra Kumar Sherchan, then Deputy General Manager Ramesh Bahadur Shah, then Acting Director Rabindra Shrestha, Directors Upendra Poudel and Umesh Poudel, then Deputy Director Paras Poudel and Brihatman Tulachan were also acquitted. On the foreign side, Norton Rose Fulbright representatives Marcus Redbruch and Raf Springer were also acquitted. 

The Authority's appeal to the Supreme Court states, "The court has found the defendant guilty in the aircraft purchase and sentenced him to imprisonment and fine, partially convicted some defendants and acquitted some defendants, and did not say anything about the criminal acts committed by the defendants under Section 9 of the Prevention of Corruption Act, 2059 as per the prosecution's demand. The appeal is being filed without being satisfied with the above decision."

The Authority has claimed that the decision of the Special Court to punish the defendants with bribery and to acquit those involved in the procurement process in a corrupt manner is erroneous and unfortunate. The Authority also claims that the Special Court decided the case by ignoring the precedents set by the Supreme Court and the facts/evidence confirmed by the investigation.

The Special Court had decided to sentence Kansakar to 2 years and 6 months in prison for the offense. As per the legal provisions for additional punishment for corruption committed while holding a high position, the special court also sentenced Kansakar to an additional 3 months in prison. The then Tourism Secretary and Corporation Chairman Adhikari was sentenced to 1 year and 6 months in prison. He was also sentenced to an additional 3 months in prison for corruption committed while holding a high position. Dhungana and Lamichhane were sentenced to 1 year and 6 months in prison each. All four were sentenced to a fine of Rs 122.59 crore and a similar amount.

The seven foreign nationals found guilty were sentenced to one and a half years in prison each and a fine of Rs 122.59 crore and a similar amount. The special court found German citizen Christian guilty of colluding with three other companies in the procurement process when Sharma's company won the contract to buy a wide-body aircraft. During the investigation, it was confirmed that Kalistru had opened Hifly X to buy the aircraft.

A company headed by a foreign citizen was formed and two large aircraft were purchased on 19 Falgun 2073 and sold to the Corporation for 24 billion rupees. At that time, the special court had concluded that the aircraft were purchased and sold in violation of the Public Procurement Act, 2063 and the Public Procurement Regulations, 2065.

A complaint was filed with the Authority on 27 Paush 2073 in the aircraft purchase case. Two years later, on 26 Paush 2075, the Public Accounts Committee of the House of Representatives directed the Authority to investigate the matter. The 55th and 56th annual reports of the Auditor General also pointed out that the aircraft purchase process was not legal.

A case was filed in the special court after concluding that the procurement criteria were 'unlawfully' amended while purchasing aircraft for the Corporation, provisions were made to favor certain companies, an amount exceeding the aircraft's carrying capacity was paid, and a dollar exchange facility was recommended for payment without bank collateral. The CIAA concluded that the aircraft's carrying capacity had been reduced from 242 tons to 230 tons, but the payment had been kept at 242 tons, resulting in an overpayment of $6.6 million. Shahi was the Minister of Tourism when he recommended the facility of dollar exchange without bank collateral. 

Initially, a subcommittee was formed to purchase a new aircraft, but it was removed and an old aircraft was bought instead. A procurement committee was formed under the coordination of the then General Manager Kansakar to purchase the old aircraft. Kansakar had formed a three-member subcommittee under the coordination of Board of Directors member Surya Prasad Acharya to form a study committee to purchase the aircraft. On 30 Ashad 2073, the Board of Directors revised the criteria and decided to purchase the aircraft from the Council of Ministers. Then the subcommittee submitted its report on 32 Shrawan 2073. 

Two months later, the Board of Directors on 5 Asoj had directed the corporation management to come up with a 3-year action plan including the purchase. But the work did not proceed accordingly. Meanwhile, the then Tourism Secretary Prem Kumar Rai was transferred and Shankar Adhikari came in. After Adhikari came in, a secret game was started with foreign companies and agents to buy old ships. 

The special court had questioned the then Tourism Secretary and current CIAA chief Prem Kumar Rai. The CIAA, in its response, argued that the decision of the previously formed committee was not implemented. It has also expressed dissatisfaction saying that the embezzlement that started with the process taken after Adhikari became the secretary has been spread as if it had already happened.

‘In the judgment of the first instance court (special), it is seen that the content of the ‘Request for Proposal’ notice called by the corporation on 10 Ashog for the purpose of purchasing two wide-body aircraft as decided in the meeting held on 7 Ashog 2073 under the chairmanship of the then secretary and chairman of the board of directors of the corporation, Shankar Prasad Adhikari, was the starting point of the malicious intent of the criminal act in the present case, and therefore Surya Prasad Acharya seems to have separated from the role of a board member on 7 Bhadra 2073,’ the authority’s appeal states.

The authority also notes that the decision to acquit Sherpa and others was made on the basis that the authority did not make Surya Prasad Acharya a defendant and prosecuted Nimanuru Sherpa, taking a selective approach, and that the decision was made without evaluating the actual evidence.

The Authority has also mentioned that the prosecution, which was conducted on the basis of facts and evidence after investigation by the authorized officer in accordance with the law, was ‘selective’ and ‘to use some, not to use others’ and that ‘the decision was based on irrelevant terminology’. 

The then Director General Kansakar had formed a subcommittee on 10 Asoj 2073 under the coordination of Acting Director Ramhari Sharma. The same subcommittee had given its opinion that it would be appropriate to buy the A-330-200 wide-body aircraft of the aircraft manufacturer Airbus. Before that, when the agreement was reached between Airbus and the Corporation in November 2009, 88 million 99 thousand 317 US dollars per aircraft was mentioned. The Authority’s appeal states that the game of irregularities that took place from there started and the defendants were acquitted by confusing it.

According to the previous MOU (Memorandum of Understanding), the price per aircraft was fixed at $118.163 million in 2017, including the price increase, but the process was last moved to purchase aircraft built after 2014. Stating that there is a provision for purchasing products from a specific company and a specific year in collusion, the Authority has called it a malicious game designed to embezzle government property. However, the Authority has expressed dissatisfaction, saying that the special court has only partially punished the person who committed corruption in the purchase by ignoring the facts and evidence that can be confirmed.