Mallya case: Defence raises questions on legal process in India

Vidya Ram London | Updated on January 09, 2018

Seeks to punch holes in premise that payments to racing team Force India were to squirrel away money

The third day of the defence arguments in India’s efforts to extradite Vijay Mallya from the UK commenced, as an Indian legal sector expert took to the stand to raise questions about the use of witness statements included in the government’s case and question the impartiality of India’s Supreme Court, while another witness, from Force India, questioned government arguments that certain payments made to the racing team were excessive and secretive.

Martin Lau, an expert on South Asian law, referred to a research report published by three academics that he said raised questions about “particular patterns or actions” in the verdicts of the Supreme Court.

“I hold the Supreme Court of India in the highest respect…it does not mean the Supreme Court is a corrupt institution,” he said, pointing to the report that suggested a certain “pattern of decision making” that supported the “contention” that judges close to retirement were “angling for government posts” and made their decision in favour of the government. “Pandering” in the form of actively ruling in favour of the government, was “positively associated” with the likelihood of judges being appointed to ““lucrative” jobs subsequently, lead defence barrister Clare Montgomery told the court, reading from the detailed study, cited by Lau in his evidence. Concurring, Lau noted that the study had not found any evidence that the seeking of government favour would result in a case being expedited – something that he pointed to in his evidence, when it came to the treatment of the banks’ case against Mallya.

He contrasted the speed with which the proceedings against Mallya were moved to and through the “heavily burdened” Supreme Court, versus Mallya’s own review petition on the case.

The picture of the decision-making of the Supreme Court formed part of a wider body of testimony presented by Lau to the court, including on the use of Section 161 witness statement of the Indian criminal procedure code (in which a police officer summarises evidence heard) which, he said, had “limited evidential value”.

He also noted the use of ‘exactly the same language’ in a number of statements. “Either we have the possibility they have both provided identical language or there is something else going on,” said Montgomery, after Lau compared two separate witness statements. Montgomery also sought to discredit some of the other evidence presented by the CBI around a valuation of Kingfisher Airlines by Brand Finance, questioning why another higher figure had not been mentioned by a police officer.

Montgomery also cited a media report, highlighted in Lau’s written submission, suggesting “coercion” was involved in CBI special director Rakesh Asthana’s approach in instigating the banks to commence criminal proceedings against Mallya.

The defence also sought to question the use of anti-money laundering rules – amended in 2013 to remove the requirement that money laundering had to involve portraying dirty money as clean – in its case against Mallya, arguing that such application would involve “retrospection application”.

Earlier in the day, Margaret Sweeney, CFO of Force India, gave evidence, by which Montgomery sought to question the premise that excessive payments were made by Mallya as a means of squirrelling away money.

“Just to deal with the suggestion made that Kingfisher Airlines money was taken for no good reason by Force 1 India and then used for some non Force 1 India purposes – is there any sign in your books?” asked Montgomery.

“Absolutely not!,” said Sweeney, following a detailed examination of figures between 2008 and 2012.

Montgomery indicated that rather than Force India being a “conduit” to give money to Mallya, it worked the other way around, where repayments were subsequently made to Kingfisher, following a request from Mallya because of the company’s financial difficulties.

Contrary to the suggestion that overpayments were made, Sweeney insisted that the sponsorship had provided strong value for money, with high levels of media coverage, and an ‘enormous platform to advertise” the Kingfisher brand.

Published on December 11, 2017

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