SC order in Sandesaras case could open doors for similar settlements: Experts

ANegotiated financial cloture that has exculpated the Sandesara brothers, Nitin and Chetan, of Sterling Biotech modified, of all outlaw proceedings followers a November 19 Supreme Court decision opens the door for similar settlement by other fugitives, besides potentially weakening India’s extradition efforts in foreign jurisdictions, experts said.While officials in investigation agencies denied meting out any special treatment to Sandesaras,legal experts said the deal gives a chance to other fugitives to claim before the foreign courts that there is a differential treatment of economic offenders in India.“For any constitutional court, including the Supreme Court, there has to be extraordinary special circumstances, indicative of non culpability, in order to pass an order that all criminal cases are to be quashed as well. In the Sandesara brothers’ case, such extraordinary special circumstances are not apparent , and investigating agencies have filed charge sheets, indicating strong criminal culpability on their part,” senior advocate Tanveer Ahmed Mir, a criminal defence lawyer, said.He added that the amount settled was also lower than the principal owed to the financial institutions.To be sure, while the Supreme Court, may have explicitly said the order in that case –– effectively signing off on a lower payment and the quashing of all cases –– would not set a precedent, it does open the door for similar requests from economic offenders, including Vijay Mallya, Nirav Modi, Mehul Choksi and others, Mir said.Another defence lawyer said that the right way to look at the Supreme Court was that it accelerated the closure of a case, and ensured the banks recovered some of their money.Vijay Aggarwal, who represents Mehul Choksi, said: “It is a very welcome step. The Supreme Court has kept with the times. Banks have finally recovered their money. I want to tell the people who were crying foul that the trial would not have been completed in their lifetime and there would have been so much of expense in even getting them extradited and completing the trial. Look at what happened in the case of Christian Michel and Deepak Talwar (who were extradited from the UAE in the AgustaWestland case ). The trial has not even started.”An Enforcement Directorate (ED) officer said that there was no special treatment in the case. “It was a court-ordered process. If other fugitives approach the Supreme Court and offer to pay, and the court directs us to quash the criminal proceedings, we have to follow that,” the officer said.As of Tuesday, in compliance of the November 19 order of the apex court, travel restrictions imposed on the Sandesaras by the Central Bureau of Investigation (CBI), ED and Income Tax department stood withdrawn after they paid the full and final agreed amount of ₹5,111 crore (taking to ₹9,800 crore, the total amount paid by them).Government data reveals that 15 fugitive economic offenders (FEOs), including Sandesaras, owed ₹58,082 crore to state-owned banks. In most cases, CBI and ED invoked Prevention of Corruption Act (PCA) and Prevention of Money Laundering Act (PMLA) against such offenders and have spent a considerable amount of exchequer’s funds in investigations and legal proceedings.Vijay Mallya, who owed ₹9,806 crore as principal to banks, has repeatedly offered to repay and claimed that ₹14,000 crore have been recovered by banks from his assets. Mallya’s legal team declined comment.“This (Sandesaras decision) can be used by people like Mallya, Choksi, and Nirav Modi before foreign courts or governments to back their claims of political targeting or unfair treatment in India because legal proceedings under PMLA, PCA, or Income Tax Act are the same for everyone,” said a former top officer of ED, who didn’t want to be named.He added: “Quashing the cases against the Sandesaras also means that government servants who were named or were under the scanner in these cases automatically have no criminal liability.”Two senior Income Tax department officers were named in one of the FIRs probe against Sterling Biotech Ltd, while another case named unknown public servants.