Squeeze On Mallya?

Vijay Mallya

While end to case is still some way off, Mallya seems to have settled into comparatively quiet life in England as final hearing in liquor barraon’s extradition case is pushed to April

By DANFES

“I’m not sure it’s going to end so soon,” remarked Vijay Mallya as we entered the courtroom on what was expected to be the last hearing in his extradition trial at the Westminster Magistrates’ Court in London. What should have been the end of closing statements by both sides has now been postponed to yet another hearing next month to make the final remarks. The bulk of arguments and evidence has already been presented in court over the past four months, but a few crucial links are still missing. The end is still some way off.

The beleaguered ‘King of Good Times’ is battling the Indian government in UK courts. India is asking for his extradition for defaulting on Rs 9,000-crore worth of loans taken by his Kingfisher Airlines alleging conspiracy, and the businessman, in self-imposed exile, is fighting for his right to stay in the UK on the grounds that the charges against him are “politically motivated”.

Mallya has always maintained a stoic silence on his return to India and reiterated that his team is willing to “settle” with the banks. The four months of this trial has seen Mallya in many moods – from being irritated with the hounding paparazzi on day one to indulging in quick “chats” with journalists on Christmas and cricket as the case progressed.

He celebrated a quiet birthday in December and bought a Christmas tree for the little village of Tewin, outside London where he has his sprawling country home. He was found ordering fast food for lunch at court and a picture of him travelling on a commuter train hit Twitter early this month. His life in England now seems very unlike that of a jet-setting tycoon, hobnobbing with celebrities and models and enjoying al la carte menus in exclusive locations.

The extradition case that began in December saw rapid hearings over two weeks where the bulk of material evidence and all witness testimonies – experts on the financial sector, aviation industry, prison conditions and South Asian politics – were produced in court.

Judge Emma Arbuthnot asked the Crime Prosecution Service (CPS) that represents India to provide more documentation: details about ventilation and light in the jail cell; food, water and medication available to the inmates; and more information about witness statements and explanations on their similarities. All details regarding jail conditions were provided in the last hearing along with pictures of the two cells that comprise Barack 12 at Arthur Road Jail where Mallya is expected to be held.

The case now hinges on two main issues – conspiracy charges that establish Mallya intended to commit fraud and witness testimonies ascribing to this. On both these fronts, the court has found prosecution’s claims lacking.

Conspiracy charges

India’s main argument for demanding Mallya’s extradition relies on him deliberately misleading the banks to sanction loans which he never had the intention to pay. Mark Summers of the CPS argued conspiracy charges against Mallya on “three grounds: misrepresentation to secure loans, misapplication of loans and steps taken by Mallya since 2014 to avoid obligations related to the loans”.

He has maintained that Mallya manufactured the coercion and duress theory to hide the truth from the court. Summers told the court that “duress was rejected by Indian courts as baseless” and coercion claims are “just nonsensical” as the “money went in the losses that were incurred in the airline business”.

The prosecution has also produced email correspondence between Mallya and his lawyer (on issues of another business) arguing that privilege did not apply in the case of intentional fraud. Mallya’s counsel Clare Montgomery told the court that “what is termed as a ‘blue-print for fraud’ are ordinary emails of legal advice” and urged the court to think “how is it even relevant” to this case.

What is clearly evident from the hearings so far is that the judge Emma Arbuthnot is convinced that it was “blindingly obvious” that banks did not follow their own rules but did not have enough material evidence to explain Mallya’s role in that. She asked the prosecution to provide her with draft charges against Mallya and more details on the emails in the next hearing.

‘Identical’ witness statements

In January, Montgomery raised the issue of “identical” witness testimonies, a point she raised once again in the hearing on March 16. “Even the spelling errors are the same!” she told the court. India’s case is heavily based on these witness statements and if Montgomery can succeed to convince the judge that they should be inadmissible, it would be a huge blow to the prosecution.

Summers explained to the court that the similarities in the witness statements were a result of witnesses using the same bank record and hence the statements are “formulae”. As the witness statements were recorded under section 161 of the Indian CrPC, they do not have the signature of the witness but of the police officer recording the statement. According to Summers, all the statements are “ROAC – read over and affirmed as correct by the police officer” and hence are a “straightforward hearsay”.

Taking cognisance of Montgomery’s argument that witness statements are just “people doing ex-post facto analysis” but there are “no documents on file showing fraud or how rules were broken”, the judge has now asked prosecution that she wants “to know where the documents came from” that the witnesses refer in their statements and expects India to furnish more details or copies of those documents.

Documents are the key

India will need to dig deep and find the documents that witnesses have referenced in their statements, like bank documents, correspondence, memos, details of assets and other collaborative evidence. The court has asked the prosecution to meet witness statements with the evidentiary support that also gives details of how documents were obtained and by whom.

This is vital to swing the case in India’s favour. Summers told the court that there are “thousands of documents” collected by investigating agencies and the UK court was only provided a selected few based on Indian authorities’ discretion for this trial; to get more documents would be a tedious task and has requested four weeks to supply them.

Conspiracy and witness statements were issues raised in the December hearings too and three months later, the prosecution has still been unable to provide necessary documents to convince the judge on those issues. Will they be able to furnish them by April 20 or will the next hearing on April 27 simply see the case being further extended?

Hard evidence will make a big difference. India cannot leave any room for error. Naval war room leak accused Ravi Shankaran’s extradition case went in his favour due to missing signatures on crucial witness statements and bookie Sanjeev Chawla was refused extradition because India was unable to convince UK of its jails meeting human rights conditions.

Mallya seems to have settled into a comparatively quiet life in England, a country in which he has “felt at home” for three decades, and plans to spend many more. Does he miss his friends and family in India? “My family is here,” replied the man, who seemed resigned to a ‘retirement’ in the UK.