The special court, which declared former liquor baron Vijay Mallya as Fugitive Economic Offender (FEO) on January 5 under the FEO Act, noted in its 55-page order that “it is mere fiction of Vijay Mallya’s imagination to pose himself as a law-abiding citizen” of the country.
‘No political vendetta’
Judge M.S. Azmi observed, “The statement that the prosecution against Mr. Mallya is the outcome of political vendetta against him would not lead to draw the inference that he should not be declared FEO.” The judge noted that besides this statement, there was nothing to support how government of India has initiated an investigation and proceedings to pursue political vendetta.
“The mere statement that the Government of India has persued a political vendetta against him and initiated criminal proceeding and investigation against him cannot be ground for his stay in U.K. The courts in India have to discharge their judicial functions as per law,” the judgement observed.
‘FEO as per Act’
The order explains the requirement for declaring Mr. Mallya an FEO as per the Act, which says, “The individual has to have committed a scheduled offence of more than ₹100 crore and there have to be issuance of non-bailable warrants. There is nothing on the side of Mr. Mallya to show that he has challenged the validity of the issuance of warrant.”
The order noted, “The intention of the FEO Act is to preserve the sanctity of the rule of law. The reasons supplied are: the amount involved is ₹9,990 crore which is more than ₹100 crore, which is the requirement of the Act. As pointed out, the summons issued were deliberately avoided, passport was revoked, non-bailable warrants were issued and he was declared a proclaimed offender. These appear to be sufficient reasons as they cover the parameters of the Act to declare him FEO.”
‘Read ED application fully’
On June 22, 2018, the Enforcement Directorate (ED) had filed an application to declare Mr. Mallya as a fugitive economic offender and sought orders to confiscate all his properties estimated to be around ₹12,500 crore.
The court said, “The application by the ED cannot be read in piecemeal and has to be read as a whole. The satisfaction or reason to belief by the ED that he should be declared as FEO are based on the foundation that despite repeated efforts he failed to join the investigation and criminal prosecution and ways to declare him a proclaimed offender has not served the purpose.”
‘No intention to return’
The court said, “If the contention of Mr. Mallya is presumed to be true that he attended the meeting and prior commitment. Had it been the case that he departed India to attend a prescheduled meeting at Geneva and was a law-abiding citizen, he would have immediately informed the authorities about the schedule to return to India. Therefore, in spite of issuance of repeated summons and warrants of arrests, he did not give a date of return. Therefore, it would be unsafe to accept the argument that he departed India only to attend the prescheduled meeting. His overall conduct suggests his refusal to return of India to face criminal prosecution. He did not reply to ED’s application and only to the extradition application he contested if had it been the case the intended to return to India. He would express desire to return after leaving on March 2, 2016.”
‘No bonafide’
The court said that the fact that Mr. Mallya offered to remain present personally in or around May 2016 and appear via video-conferencing are not material affecting the main issue. The suppression of it also gives no advantage to the case of the ED. Even the attempts made by Mr. Mallya for one-time settlement has nothing to do with the alleged scheduled offence. Therefore, if the statement to that regard is not made in the application, it would also not amount to suppression of facts.
The court said the replies of Mr. Mallya to the ED suggest that he was taking efforts for a one-time settlement and therefore was unable to attend personally for investigation.
The order noted, “The reason given itself suggests that he was avoiding to join the investigation. He had not given any definite date when he will join the investigation. The time to be consumed by him for his efforts to have one-time settlement is not elaborated. His own admissions that he informed the Serious Fraud Investigation Office that he will return after the end of March 2016 and his failure to return after the end of March demonstrate he has no intention to return to India.”
The court said, “Therefore, it cannot be said that he has any intention to join the investigation and his tall claims for the same is not evident from his conduct. Merely submitting that he is ready to cooperate in investigation via video-conferencing cannot be considered as his bonafide. There is nothing said to show the bonafide of Mr. Mallya that he is ready to submit to the jurisdiction of the court.”
