In view of the growing number of absconding defaulters, the government has tabled the Fugitive Offenders Bill in the Lok Sabha. But is it serious about getting them back?

~By Kingshuk Nag

With Nirav Modi now, and his uncle and co-conspirator in the Rs 11,500 crore PNB scam, Mehul Choksi, earlier, telling the CBI that they would not come back to India and facilitate the investigations, the government seems helpless about getting them to face the law. “In the case of Vijay Mallya, everybody knew where he was. So the government could move the courts to extradite him, but for Modi and Choksi there is no firm evidence on their whereabouts,” confided an investigating agency official.

Modi and Choksi have responded to the CBI on mail. But there is no way of knowing whether they have themselves replied on their email accounts or got some confidant to open their mails to send a reply! Both have mentioned that they feared for their personal safety and security. Choksi said that he underwent a cardiac procedure in February 2018 and has been advised by doctors not to travel for “4-6 months”. Modi said that since the CBI had seized his servers and files, he was “handicapped” in sharing information with the investigating agencies. This, he asserted, had taken away his fundamental right to defend himself. Though both of them have not stated so, they can well argue that since their Indian passports have been cancelled, they can’t travel back to India.

Investigators suspect that Modi and Choksi are hiding either in some western European country or the US from where extradition is not easy. For instance, since 1993 when India and the UK entered into a Mutual Legal Assistance Treaty, only one person has been extradited. Mallya, now in London, is mounting a court offensive that there is a witch-hunt against him, the CBI has a very poor investigation track record, and the jails in India have very poor facilities.

BILL TABLED

Faced with accusations of going slow ever since Mallya absconded on March 1, 2016, the finance ministry brought in a proposal and tabled the Fugitive Offenders Bill in the Lok Sabha earlier this month. A person who leaves India to avoid criminal prosecution for fraud of Rs 100 crore and above and refuses to return, will be declared a Fugitive Economic Offender (FEO). His properties will be liable to be confiscated by order of a special court set up for the purpose. Though the Bill is yet to become law, many lawyers feel that it can be challenged in a court, once promulgated. For one, it does not wait for conviction before the property is confiscated. Further, it does not provide for the property to be returned if the case against the accused is not proven by a court of law. Moreover, the government can sell property that is jointly owned with other people who are not FEOs.

“The proposed legislation is an extension of the Prevention of Money Laundering Act (PMLA) and designed to secure the presence of alleged offenders who are abroad. Under the provisions, the moment a person declared as FEO appears before the designated court, the proceedings will be halted. I doubt, however, that anyone will return just to stop their properties from getting confiscated,” says criminal lawyer Diljit Ahluwalia. “I think the government, accused for not doing enough to nab the economic offenders, is planning this law to give the impression that it is active,” says former customs commissioner-turned-lawyer GV Reddy. Meanwhile, investigating agencies have taken charge of 21 properties, half a dozen luxury vehicles and Rs 5,100 crore worth of diamond and gold jewellery belonging to Modi.

Earlier this month, Minister of State for External Affairs MJ Akbar released a list of 31 economic offenders who are absconding abroad. The list includes Mallya, Modi and Choksi, but also lesser-known names. Akbar said that his ministry had received requests for starting extradition proceedings against Ashish Jobanputra, Puspesh Kumar Baid, Sanjay Kalra, Varsha Kalra and Arti Kalra.

According to the FIR filed by the CBI, Jobanputra, who ran ABC Cotspun Pvt Limited, presented bills worth Rs 770 crore to the State Bank of India and Bank of Baroda based on false documents that showed that the company had dispatched cotton bales to China. The banks “discounted” the bills and paid money to the company in 2015 only to discover that they had been defrauded. Jobanputra is now in Los Angeles. Baid of Kolkata cheated many public sector banks by taking loans totalling Rs 700 crore on the basis of forged documents of properties. The money was never used for the stated purpose. He has been absconding since 2012.

Interestingly, many of the 31 absconders are not on the Interpol red corner notices (which help immigration authorities nab them the moment they seek to travel internationally), indicating the ham-handed approach of the investigation agencies. Banks are guilty of restructuring loans of many like Mallya and forking out more money (see box).

The CBI had to file suo motu cases against Mallya as banks were shy of doing so. In the meanwhile, Mallya fled.