Chief Magistrate Emma Arbuthnot has ordered Vijay Mallya’s extradition, referring the case to the British Home Secretary to sign off the extradition order. Vijay Mallya will now have 14 days to lodge an application for appeal in his case, following the verdict on Monday afternoon during which the judge at Westminster Magistrates Court pointed to factors such as numerous misrepresentations that had been made by Kingfisher Airlines, and Mallya during the course of obtaining loans from a consortium of banks including IDBI.
In a punchy summary statement after announcing her judgement, Ms. Arbuthnot described Mallya as a “glamorous, flashy, famous, bejewelled, bodyguarded, ostensibly billionaire playboy” who may have “charmed and cajoled” bankers into “losing their common sense and persuading them to put their own rules and regulations to one side.” She also rejected the defence suggestion that a “false case” was being mounted against Mallya to “assuage CBI’s political masters” or that it was a politically motivated case. “I find that because both Congress and the BJP are blaming him and others for the state banks’ losses that does not mean that he is being prosecuted for his political opinions, even in the wide sense of the word.”
Once extradition is ordered by the Home Secretary, Crown Prosecution Service Barrister Mark Summers said they would be seeking to recover at least £260,000 in legal costs. Under the extradition treaty Home Secretary Sajid Javid has two months days to order the extradition, following which any appeal process would kick off. Mallya has the right to appeal to the High Court and should that go against him he could apply for leave to appeal to the Supreme Court.
In her judgement the judge focussed on evidence relating to fraud and money laundering charges, including the contention that KFA and Mallya had misrepresented the state of the airline – including the brand valuation and personal and corporate guarantees provided by KFA and Mallya.
Misrepresentations
“I find that there was a misrepresentation about what the loans would be used for,” she wrote in her judgement, pointing to mentions of “round robins” in documentation. “There is a prima facie case of making false representations to make a gain for himself or a loss to another.” She also pointed to misrepresentations made by KFA officials to the banks on the state of the company. This included an email conversation that made it clear they were not expecting KFA to emerge profitable in the mid-term, even as this was being suggested to the banks in order to gain approval for the loans.
“I find that there is no evidence that Mr [Rakesh] Asthana has acted corruptly,” she said referring to “serious” defence allegations around his professional integrity and character. “Any suggestion that CBI courts are too pliable when it comes to CBI cases is not borne out by reliable evidence. It would be like saying because Southwark Crown Court hears the majority of SFO cases that means it would lack independence in some way or because Westminster Magistrates’ Court deals with all extraditions at first instance it lacks independence from the Crown Prosecution Service extradition unit which brings these specialised cases.”
She also rejected suggestions that media attention for any prosecution in India could hurt his chance of a fair trial. “There is insufficient evidence for this court to find that he will not be tried by a competent and fair court.”
Assurances
She also described as “clear’ assurances provided by India on conditions in the cell in Barrack No. 12, Arthur Road prison that he would be held in - both in relation to living conditions and medical care. However, her acceptance came with a warning: The Government of India “will know that if the assurances are broken, they will be very publicly broken,” she wrote. “Extradition arrangements work on the basis of trust and any failure to abide by the assurances would doubtlessly affect the trust between this court and the GOI,” she said, adding that there was no reason to think they would want to breach that trust.
However, she was critical of the state of the legal papers from the prosecution side – which has been a long-running source of contention in the case. The defence had argued that the “atrocious state” of the papers from the Indian side smacked of an intention to “throw everything at the RP.” She said that while there was no doubt that while “there is no doubt that the state of the papers in this case doubled the work of this court,” was more a case of the fact that the CBI or the ED had not “stood back and considered what would help this court in making its decisions.” She contrasted the state of the evidence from the defence with that from the government of India, which was ‘poorly paginated and indexed.”