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TEAM CODE AIM 10

THE 4TH AMITY INTERNATIONAL MOOT COURT


COMPETITION, 2016
ON

SPORTS LAW

THE HONOURABLE HIGH COURT OF GODAM

MEMORIAL FOR THE DEFENSE COUNSEL

AGAINST

ON BEHALF OF

XERXESE MORENNIO, B.C.C.GO., AND

THE CENTRAL AGENCY OF

ORS

INVESTIGATION, STATE OF GODAM

&

&

LIAM JACKSON, HANK JEFFERSON, AND

INTERNATIONAL FEDERATION OF

ORS

CRICKET

- APPLICANT-

-RESPONDENT-

4th Amity International Moot Court Competition, 2016

TABLE OF CONTENTS

SR NO

TITLE

PG NO

List of Abbreviations

Index of Authorities

Statement of Jurisdiction

Statement of Facts

Issues for Consideration

Summary of Arguments

Contention I

10

Contention II

13

Contention III

15

10

Contention IV

17

11

Prayers

22

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016

LIST OF ABBREVIATIONS

GPL
B.C.CGo

Godam Premier League


Board of Cricket Control of Godam

KR

Kodra Ranges

MK

Mandeva Kites

IFC

International Federation of Cricket

CAS

Court of Arbitrationof Sports

CAT

Category

ACUT
ED
PMLA

Anti-Corruption Unit Tribunal


Enforcement Directorate
Prevention of Money Laundering Act

PIL

Public Interest Litigation

CAI

Central Agency of Investigation

COM

Committee

BOD

Board of Directors

H.C.

High Court

S.C.

Supreme Court

SE Shareholders
Para
Pg

Sweat Equity Shareholders


Paragraph
Page

Sec

Section

IPC

Indian Penal Code

SCR

Supreme Court Report

SCC

Supreme Court Cases

AIR

All India Report

IPL

Indian Premier League

ICC

International Cricket Council

B.C.C.I

Memorandum for The Respondent

Board of Cricket Control of India

4th Amity International Moot Court Competition, 2016

INDEX OF AUTHORITIES

Cases:
Nizam & Anr. v..State of Rajasthan,2015 (Criminal Appeal 417 OF 2007) Supreme Court
Kundula Bala Subrahmanyam and Anr v State Of Andhra Pradesh, 1993 SCR(2)666, 1993
SCC(2)684
Kunal Majumdar Vs State of Rajasthan,2012 (Criminal Appeal 407 of 2008) - Supreme Court
V.D. Jhingan v. State of U.P., AIR 1966 SC 1762
V.C. Shukla vs. State,1980 AIR 962,1980 SCR(2)380
Ujjagar Singh Vs. State of Punjab (Appeal(crl.) 1044 of 2006)
Dr. KR Lakshmanan V. State of Tamil Nadu (1996) 2 SCC 226

R.K. Dalmia v. Delhi Administration [1962] AIR 1821, 1963 SCR (1) 253

Common Cause v. Union of India [1999] 6 SCC 667

Nazir Ahmad v King Emperor, AIR 1936 PC 253.


Ramchandra Keshav Adke v Govind Joti Chavre, (1975) 1 SCC 559.
Shiv Bahadur Singh v State of Uttar Pradesh AIR 1954 SC 322.
Deep Chand v State of Rajasthan AIR 1961 SC 1527.

Suresh Kalmadi v CBI, Crl.M.C. No.2143/2015 - Supreme Court


Legislations:

Indian Penal Code, 1860


Indian Evidence Act, 1872

Code of Criminal Procedure, 1973

Companies Act, 2013


Prevention of Money Laundering Act, 2002
Contempt of Courts Act, 1971
Prevention of Cxorruption Act,, 1988
Foreign Exchange Management Act, 1999

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016


Commentaries:
Ratanlal and Dhirajlal on Law of Crimes
Ratanlal and Dhirajlal on Law of Evidence
Taxman on the Companies Act
Books:
Sport and The Law
Law and Sports in India by Justice Mukul Mudgal
Conflict of Laws byAtul M. Setalvad

Private International Law by Dr. S. R. Myneni


Rules and Regulations:

The International Cricket Council Anti-Corruption Code for Participants, 2014


B.C.C.I. Anti-corruption Code For Participants
IPL Code of conduct for players and team officials
Rule 8 of the Companies (Share Capital and Debentures) Rules, 2014
3.Securities and Exchanges Board of India (Issue of Sweat Equity) Regulations, 2002
Reports
Justice Mudgal Committee Report, 2014
Justice R. M. Lodha Committee Report, 2014
CBI's report on match fixing and related malpractices, 2000

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016

STATEMENT OF JURISDICTION

The applicants/appellants have filed the present Petition before the Hon'ble High Court of Godam for
invoking its ordinary appellate jurisdiction under Section 380 of the Code of Criminal Procedure, 1973,
which is reproduced herein below:
380- Special right of appeal in certain cases- Notwithstanding anything contained in this chapter, when
more persons than one are convicted in one trial, and an appealable judgment or order has been passed in
respect of any of such persons convicted at such trial shall have a right to appeal.
The defense/respondents agree that the petition is maintainable in the fact and circumstances of the case
at hand.

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016

STATEMENT OF FACTS

B.C.CGo is the parent body responsible for all the activIties related to cricket in Godam subcontinent,
GPL is its brain child to showcase the shortest version of the game of cricket in its 20-20 format. GPL
was launched in the year 2009 and it has been a hit ever since its inception. GPL did face some
turbulence in the 5th edition when a club named as Kondra Ranges (KR) was found guilty of match
fixing and spot fixing. Kondra Ranges was owned by a media tycoon Takishi. Every time any allegation
popped up, it was always subdued by sufficient explanations from Takishi and clean chit was given to KR
by B.C.CGo
Xerxese Morennio, was the Commissioner of GPL, also business development manager of B.C.CGo. He
was a potent business entity who motivated many business federations to invest into the game of cricket.
When the competition was into its 5th edition, general elections of BCCGo were supposed to be held.
This time Chairman of B.C.CGo for five years, Niladris was dethroned and Don Makofusa came to
power. This was the time when allegations against KR were taken seriously and thus could not take part
in the 6th edition of GPL, as it was banned by IFC for violation of IFCs Anti-Corruption Code protocols
and a penalty of Rs 60 crore as a fine was imposed on it. KR also had an option to go into appeal to the
CAS within 21 days from the order , in spite of it, it chose to serve the punishment and subsequently
paid the sum of Rs 60 crore within a month. Takishi was also banned by IFC to take part into any
activity related to GPL, though his company (Pace airways) continued to remain the official partner of the
competition and official sponsor of the national team.
For the 6th edition, a new team named as Mandeva Kites (MK) entered the competition. The team
involved 8 players who were ex-players of KR including the captain of KR who was purchased for a
record price. The majority shares were held by Tutis Olanga who was the step son of the IFC Chief Putul
Tutis Olanga. It was pertinent to note that the major share owners of K.R. were the sweat equity
shareholders of the new Mandeva Kites (Zia Kuriet, Kaifi Shaikh, and Gogo Morrenio) .MK in the 6th
edition lost many matches due to low runs and fall of wickets involving mostly run outs. Thus due to this
questions related to transfer of liability arouse as it was alleged that MK was a result of manipulation of
the existing system.
Xerxese appointed Peter Woodford to coach KR for the 5th edition of GPL. His appointment was highly
criticized as he had faced many discipline and corruption charges in his illustrious carreer .After KR was
banned a shocking incident took place where Peter Woodford was found dead in his hotel room. Before
his death he made several calls, out of which some were made to his relative including calls made to Zia

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016


Kuriet and Xerxese. The autopsy suggested that it can never be death due to strangulation as the hiod
bone of Woodford was intact. The investigation became and mockery and puppetry in the hands of
mighty and thus it was declared that there was no murder.
Further in a sting operation conducted by a news channel the two players of MK, Hank and Liam were
found guilty of spot fixing. IFC asked B.C.CGo to conduct an enquiry and take legal action against the
people involved. In the enquiry MK never showed any cause but submitted the resignation of these 2
players. The players filed an appeal with Anti-Corruption Unit Tribunal of IFC challenging the expulsion.
According to a report, they confessed that they were forced to engage into malpractices for which they
received huge sums of money and that B.C.CGo and the Commissioner of GPL Xerxese were the part of
this misendeavour. While in this issue clean chit was given by the B.C.CGo, IFC restricted MK to take
part in any world event, which was challenged by it in ACUT.
Xerxese was suspended by B.C.CGo and not only this, a complaint was filed in the Enforcement
Directorate (ED) by it under section 4 of PMLA in relation to a multi-million deal between Meghe sports
and FSL regarding T.V. rights on GPL worth Rs 600 crore in 2010. A PIL regarding the matter was filled
by Altaf Aslam in the Honble Supreme Court of Godam upon which BCCGo was ordered to investigate
the matter and thus an 11 member committee was formed.. IFC gave a clean chit to B.C.CGo but SC
outrightly rejected this report.
Another PIL was filed by Czar Leh (an IFC empire), challenging the findings of COM 1. Supreme Court
was convinced that COM I was influenced thus directed B.C.C.Go to conduct a fresh enquiry and no
BOD member shall be a part of the committee. COM 2 report was also criticised and B.C.CGos action
and competency to file a consolidated report was criticised. Thus S.C passed an order directing the CAI
to investigate the matter and file the charge sheet within one month. CAI filed the same in a special court.
Charges were imposed on Xerxese, B.C.CGo and the three sweat equity owners of MK related to
corruption, murder, match fixing and spot fixing. However similar to COM 2 report CAI made inferences
that certain important documents were missing and it was nobodys fault but B.C.CGo.
In CAI Court, accused parties were convicted and case went in appeal to the High Court. In the same CAI
court there was another case pending where B.C.CGo and Xerxese were charged with corruption thus in
addition to this case, the matter referred by IFC was also consolidated.

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016

ISSUES FOR CONSIDERATION

1. Whether the factum of commission of murder can be established from the


circumstances and whether the accused are responsiblefor murdering Peter
Woodford
2. Whether Xerxese and BCCGo are a part of the racket of corruption
3. Whether there should be a transfer of liability from KR to MK
4. Whether Hank and Liam are guilty of the offense of spot fixing.
5. Whether Xerxese, BCCGo, and MK are a part of the nexus of betting syndicate

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016

SUMMARY OF ARGUMENTS

1. The accused should be held liable for the murder of Peter Woodford as there are sufficient
grounds to establish this charge.
The direction of the investigation was at fault from the very start and was under the influence of the big
and mighty. Further the motive behind the murder can be established and the circumstantial evidence in
the present case is enough to solely incriminate the accused.
2. There have been serious defaults on part of the accused for them to be held liable for corruption
In Corruption, the allegations made against Xerxese and the three SE shareholders are true, Xexeses
silence showed hiatus in the investigation process and the important documents which were missing, was
nobodys fault but BCCGo.
3. The transfer of liability allegations made on the applicant are true.
In transfer of liability all the allegations made on the three sweat equity share holders and the
management of MK are true because the decision of issuing of sweat equity shares are in the hands of
directors and owners and there was substantial malicious intention of the sweat equity share owners to be
a part of the betting racket .
4. The players Hank and Liam are Guilty of the offense of spot fixing.
The team MK is found to have relations with betting syndicate. Evidence obtained against the two players
is admissible in the court of law. The players were found to commit the said offense in furtherance of
common intention. It is found that the players have deceived the officials into entering into a contract
with them and also have misappropriated the property entrusted with them.

Memorandum for The Respondent

4th Amity International Moot Court Competition, 2016

CONTENTION I

Whether the factum of commission of murder can be established from the


circumstances and whether the accused are responsiblefor murdering Peter
Woodford

1.1 The direction of the investigation from the very start was at fault.
The findings of the investigation team were not only conjectural but also perverse as the circumstantial
evidence was not given much importance and the case was decided purely on the basis of direct evidence
which was missing. The investigation started off on the wrong foot, it started on the presumption that
there was no murder. Thus only direct evidence was considered and important links and circumstantial
evidence which could have negated the presumption were not given much importance. Admittedly, since
there was no eye-witness in the case, it sought to be established by the prosecution on the basis of
circumstantial evidence.
In a case based on circumstantial evidence, the settled law is that the circumstance from which the
conclusion

of guilt is drawn should be fully proved and these circumstances must be conclusive in

nature1.In the present scenario as well the articles recovered and the circumstances unravel the ongoing
racket of betting syndicates, which has direct links to the allegations made by Hank and Liam. It is an
irrefutable fact that the reason for which KR was banned was none but corruption, for which it had to pay
a mammoth amount as fine.
The conduct of KR from that very point was very doubtful and debatable as their decision to decline an
appeal to CAS and pay a mammoth amount as fine without any hesitation or negotiations in itself raises a
question to be answered by them. This conduct when linked to the circumstances of the case and
considering the fact that Woodford being the coach of KR, was an important lead to unravel or unriddle
this spot fixing racket which had its roots in KR. Thus this was a planned strategy to escape from getting
exposed as it was highly probable that approaching CAS for an appeal could have unveiled their secrets
and would have broken this nexus. Thus as a part of this strategy a new entity MK was created in order to
1

Nizam & Anr. Vs..State of Rajasthan,2015 (Criminal Appeal 417 OF 2007)

Memorandum for The Respondent

10

4th Amity International Moot Court Competition, 2016


aid the functioning of this network of betting syndicates. Thus the nexus was functioning in the same
manner but only under a different name.
1.2 Xerxese and the three SE shareholders had a motive behind murdering Woodford as he could
have become a thorn in their flesh.
In a case based on circumstantial evidence, motive sums great significance as its existence is an
enlightening factor in process of presumptive reasoning 2. Here in the present case too motive has a
significant role to play. Peter Woodford was a very important link in the ongoing nexus of corruption and
had access to all sensitive information which he could have made public. Sensing this fear, it was in the
best interests of Xerxese and the three SE shareholders to remove him from their path as he could have
turned out to be a thorn in their flesh. So this clearly establishes the motive behind this murder and the
circumstantial evidence indicates the same. It was a well conspired and planned murder in order to
prevent Woodford from revealing the secrets which would have exposed the dirty nexus of betting
syndicates. Woodford was no longer a part of KR and had been side tracked by the members of KR, who
are now the SE shareholders of MK, thus he had every reason to turn out to be subversive and thus was
silenced by the wrongdoers.
The importance of criminal intent in deciding a case on murder has gained legislative importance in
India. In the IPC3, Mens rea is expressed as "ACTUS NON FACIT REUM NISI MENS SIT REA" as a
fundamental principle for penal liability. Intent and Act, both must concur to constitute a crime. An act
itself is no crime, unless it is coupled with an evil / criminal intent. In many Indian cases this principle
has been taken into consideration, such as in the case of Kunal Majumdar Vs State of Rajasthan 4, the
honorable Supreme Court delivered a judgement in which it stated that Mens rea is an important point to
be considered by the High Court when a case was sent for its reference for the confirmation of a death
sentence under CrPC5. Thus in the present case too the motive or the criminal intent behind the murder is
established and thus it comes under the principle of mens rea, which is a legal wrong and invites penal
liability and thus the same cannot be ignored.
Further it is submitted that "It is sufficient if the accused person succeeds in proving a preponderance of
probability in favour of his case. It is not necessary for the accused person to prove his case beyond a
reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused

2
3
4
5

Kundula Bala Subrahmanyam and Anr vs State Of Andhra Pradesh, 1993 SCR(2)666, 1993 SCC(2)684
Indian Penal Code, 1860
Kunal Majumdar Vs State of Rajasthan,2012 (Criminal Appeal 407 of 2008)
Code of Criminal Procedure, 1973

Memorandum for The Respondent

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4th Amity International Moot Court Competition, 2016


person is to prove his case by a preponderance of probability."6
In the present case too it is not possible for the accused to prove their innocence even by the slightest of
probabilities as it has been proved beyond reasonable doubt by the prosecution that the accused had
sufficient reason to murder Peter Woodford to prevent him from turning subversive and their motive can
be ascertained from the same. The case on being examined on the basis of circumstantial evidence, the
scintillating articles recovered from the murder spot makes the picture clear as to the link between
Woodford and the accused. Thus on the basis of the last two telephonic conversations held between
Woodford and the accused and the evidence recovered at the spot indicates at a possibility of an ongoing
betting nexus. Thus the alleged involvement of Xerxese and the 3 SE shareholders is highly probable and
the same can be established by the principle of preponderance of probability which is not in their favour.
1.3 The factum of commission of murder can be proved on the basis of circumstantial evidence.
In the present case the motive behind the commission of murder is clear from the circumstances and the
same has been proved in the earlier contention. The articles recovered from the murder spot when linked
together form a chain of events which indicate that it was a well conspired and planned murder. As
mentioned earlier the circumstantial evidence can be directly linked with the ongoing betting nexus as
alleged by Hank and Liam, the articles recovered are of prime importance to establish the same. As
pointed out by Fazal Ali, J, in V.C. Shukla vs. State" 7 in most cases it will be difficult to get direct
evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a
conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
By the circumstantial evidence it can be ascertained that Peter Woodford was a part of this racket of
betting syndicates and was thus an important link who could have solely exposed and incriminated the
accused. Thus this was a conspiracy, in furtherance of a common intention to murder Woodford and thus
escape from coming under the scanner of prosecution.
The Honble Supreme Court in Ujjagar Singh Vs. State of Punjab 8 held that while evaluating
circumstantial evidence, whether a chain of evidence is complete or not would depend on the facts of
each case emanating from the evidence and no universal yardstick should ever be attempted. The
expensive watches, the laptops, telephonic talks between him and the accused, and the exposed links of
Woodford with the network of betting syndicates forms a chain of events which is an essential ingredient
to conclusively prove a commission of murder. This action when clubbed with the principle of Mens Rea
6
7
8

V.D. Jhingan v. State of U.P., AIR 1966 SC 1762


V.C. Shukla vs. State,1980 AIR 962,1980 SCR(2)380
Ujjagar Singh Vs. State of Punjab (Appeal(crl.) 1044 of 2006)

Memorandum for The Respondent

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[ACTUS NON FACIT REUM NISI MENS SIT REA] 9 , whose presence has been proved above
constitutes a murder under Section 300 of Indian Penal Code,1860.

CONTENTION II

Whether Xerxese and BCCGo are a part of the racket of corruption

2.1 The allegations made on Xerxese and the three SE shareholders are true.
The sting operation revealed the racket of spot fixing which in turn led to the disclosure of a long nexus
functioning behind this. Once this racket was exposed, many new names came out and it was found that it
is not only Hank and Liam who are a part of this, but there is a long chain of people involved in this
misendeavour. Everyone including the players, management of MK, Xerxese and the BCCGo were found
to be part of this nexus. After the revelation, everyone tried to put the blame on one another, and in order
to protect themselves, started playing safe. The franchise of MK very easily submitted the resignation of
the two players in order to portray that they are in no manner a part of this wrongdoing and showcased
the whole thing as a way of their protest against corruption for the mere reason of concealing their role in
the misendeavour. BCCGo also had links in this racket and it had no defence in its favour, thus it gave
vague and self-proclaimed assumptions. They have been found guilty under article 23 of PMLA, 200210
which states that- Where money-laundering involves two or more inter-connected transactions and one or
more such transactions is or are proved to be involved in money-laundering, then for the purposes of
adjudication or confiscation under section 811, it shall, unless otherwise proved to the satisfaction of the
Adjudicating Authority, be presumed that the remaining transactions form part of such inter-connected
transactions. And in the present case such inter-connected transactions have taken place.
Thus from their conduct it can be inferred that everyone was trying to be on the safer side and looking for
an escape route to avoid coming under the scanner of investigation.

9 Indian Penal Code,1860


10 Article 23 of PMLA, 2002
11 Section 8 of PMLA, 2002

Memorandum for The Respondent

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4th Amity International Moot Court Competition, 2016


2.2 Xexeses silence showed hiatus in the investigation process, which amounts to Contempt of
Court
Xexeses uncooperative behaviour throughout the course of investigation itself shows that there was some
lacuna in the investigation through which Xerxese did not want to get exposed. His silence and repeated
ignorance to the allegations shows that he had no defence in his favour and was trying to avoid being
questioned and thus quietly escape from the situation. Xerxeses uncooperative behaviour and his attempt
to disrupt the proceedings by the Contempt of Courts Act, 197112 comes under the purview of Contempt
of Court. Contempt of court13 says that a civil contempt means wilful disobedience to any judgement,
decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a
court. As Xerxese was not cooperative throughout the enquiry as stated by committee 2 report, he is
found guilty of the offence of contempt of court and should be punished for the same.
2.3 The important documents which were missing, was nobodys fault but BCCGo.
Admissibility of document is crucial in any trial for it can change the course of entire trial and
consequently fate of parties. The Indian Evidence Act entails elaborate provisions relating to admissibility
of documents. 'Best Evidence Rule' is a golden thread which runs through the provisions relating to
admissibility of evidence, and when seen in context of documentary evidence, such a rule is enshrined in
section 64 of the Act14 which provides that documents must be proved by primary evidence. The Best
Evidence Rule requires that if the contents of a writing are to be proved, the document must be proved. In
the present case the documents which were misplaced come under the category of Public documents15
defined as relating to official bodies and tribunals. This could have been used as a primary evidence
which could have solely incriminated the accused but these important documents were purposely
misplaced by BCCGo as it was trying to save itself from being exposed in the T.V. rights case. Further,
BCCGo suspended Xerxese in order to be on the safer side and to shift the attention of the investigators
away from itself.

12
13
14
15

Contempt of Courts Act, 1971


Contempt of court as defined in section 2(b) of the Contempt of Courts Act, 1971
Section 64 of the Indian Evidence Act,1872
Public documents defined under Sec. 74.1.2 of the Indian Evidence Act,1872

Memorandum for The Respondent

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4th Amity International Moot Court Competition, 2016

CONTENTION III

Whether there should be a transfer of liability from KR to MK

3.1 Decision of Allotment of Sweat Equity shares indicates mala-fide intent


The decision to allocate the sweat equity shares lies in the hands of the owners and the Board of Directors
who can issue sweat equity shares only if a general resolution is passed by the company. A minimum of
75% of the share-holders should be in favour of issuance of sweat equity shares to any of the directors or
the employees of the company.
The relevant provision is outlined in Section 54, Companies Act, 2013 16 which clearly indicates that it
was the intention of the owners and directors to issue sweat equity shares to the appellants as they knew
how the managerial system functions, having already been a part of the GPL in the previous editions.
This indicates that the directors and owners wanted to continue with the malpractices already taking place
and this was the main guiding factor behind the passage of the resolution for giving the sweat equity
shares to the appellants so that they had a say in the management which would prove to be beneficial for
them as they would have encouraged, aided and abetted them in continuing all the malpractices which
would, in turn, help them in getting the desired profits. The company should also proffer to give a
justification for the issue of sweat equity shares for consideration other than cash, which should form a
part of the notice, sent for the general meeting. Here, it can clearly be seen that the company wanted to
retain Zia Kuriet, Kaifi Shaik and Gogo Morrenio in the GPL by issuing them the sweat equity shares
making them either the directors or the employees of the company.
This is a clear indication that the company wanted to continue with the malpractices of spot- fixing and
match-fixing and earn more profits for the reason that the major share-owners of the KR were given
sweat equity shares so as to allow them to be part of the GPL and have a say in the managerial aspects of
the company.

16 To be read in conjunction with Rule 8 of the Companies (Share Capital and Debentures) Rules, 2014 as framed under
Chapter IV of the Companies Act, 2013 for private limited companies and the Securities and Exchanges Board of India (Issue
of Sweat Equity) Regulations, 2002 for public listed companies.

Memorandum for The Respondent

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3.2 Sweat equity share holders had control over the company
The purpose behind allocation of sweat equity shares is primarily for retaining their talent in the company
as they have a fair knowledge of the work and will help the business prosper in the times to come.
In the facts and circumstances of the present case, the sweat equity shares were allotted to the appellants
leading to the obvious inference that they are in a position to influence the directors and owners and other
government and cricket officials, which comes to the fore as they never had any significant role in the
managerial component and they would need to retain them by giving them something in consideration.
This clearly goes on to show that they had control of the management and would continue with the past
practices of spot-fixing and match-fixing, the only difference being that it would be carried on under a
different identity and name. Such a modus operandi not only benefits the sweat equity share-holders, but
also the owners and the directors as they would be in a position to earn more profits surreptitiously.
It has been settled by the Honble Supreme Court that what cannot be done directly, cannot be done
indirectly17. The Privy Council18 has observed that if an action has to be taken in a prescribed, particular
manner, it must be carried out following such process only. Else, it may be held to have not been effected
to all. This still-standing enunciation of law with respect to strict compliance of procedural requirement
has been consistently applied by the Supreme Court in Ramchandra Keshav Adke v Govind Joti Chavre 19,
Shiv Bahadur Singh v State of Uttar Pradesh20 and Deep Chand v State of Rajasthan21.
In the present case, this has evidently not been complied with, at all.
3.3 Malicious intention to continue the ongoing nexus of betting syndicate
Malice is The intent, without justification or excuse, to commit a wrongful act22. Malice, in law, means
intent, without proper or valid or cogent justification, excuse or reason, to commit a wrongful act that will
result in harm to another. Malice implies wrongful intention and includes all types of intent that the law
deems to be wrongful. Legally speaking, any act done with a wrong intention is done maliciously. In the
instant case, the sweat equity share-holders wanted to earn as much money as they could, legally and
even illegally, which is why they agreed to the proposition of becoming sweat equity share-holders and to
be instrumental in allowing or forcing the players to indulge in spot-fixing and/or match-fixing.
This serves to establish that they had willful and deliberate malicious intention.

17 Delhi Administration V Gurdip Singh Uban & Ors, 2000 Supp (2) SCR 496
18 Nazir Ahmad v King Emperor, AIR 1936 PC 253.
19 Ramchandra Keshav Adke v Govind Joti Chavre (1975) 1 SCC 559.
20 Shiv Bahadur Singh V. State of Uttar Pradesh AIR 1954 SC 322.
21 Deep Chand V. State of Rajasthan AIR 1961 SC 1527.
22 Black's Law Dictionary 1042 (9th Edn.2009)

Memorandum for The Respondent

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CONTENTION IV

Whether Hank and Liam are guilty of the offense of spot fixing and whether Xerxese,
BCCGo, and MK are a part of the nexus of betting syndicate

4.1 The team MK is found to have relations with betting syndicate.


It has been found by the CBI during its investigation that the players Hank and Liam were involved in
spot fixing. There are certain facts that substantiate this accusation.
Kaifi Shaikh, one of the sweat equity share owners of the team MK is the owner of Betshet, a betting
portal in Netherlands. He was also the owner of KR, a team in GPL which was always in the limelight
because of controversies. Furthermore, 8 players of the team in question, i.e. MK, were in the team KR,
who had escaped inquiries and prosecution as the accusations against them were always subdued by the
explanation provided by Takishi, the owner of KR. Taking into consideration all these facts, there are
reasonable grounds to believe that the team officials and players of the team MK were involved in betting
and fixing. It has been held by the Supreme Court of India, in Dr. KR Lakshmanan V. State of Tamil
Nadu23 that gaming is an act or practice of gambling on a game of chance. ... It is also pertinent to note
that no foreign direct investment is allowed in the betting/gambling/lottery industry in India. This rule
is unambiguous and strictly applied. Hence, in the present case, even if the betting portal owned by Kaifi
Shaikh is based in Netherlands, betting activities in India through that portal are not allowed in India.
4.2 Evidence obtained against the two players is admissible in the court of law.
In this case, we, as the respondents, humbly submit that there have been 3 consecutive checks and
scrutiny to the evidence obtained in the sting operation. What is brought before this Honble court as
evidence is not an unchecked, unreviewed evidence solely obtained in the sting operation by media
channels, but the evidence which has been scrutinized, not once, but thrice, for the first time in the
investigation conducted by committee 1, as stated in its committee 1 report, (this committee was formed
23 Dr. K. R. Lakshmanan V. State of Tamil Nadu (1996) 2 SCC 226

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as per the orders of the Honble Supreme Court in response to the PIL files by Altaf Aslam.) In this said
report, the committee acquitted all the accused except the two players. For the second time it was
reviewed and checked by committee 2, and was also stated in its report. This committee was also set up
as per the orders of the Supreme Court. So there was no question of personal bias or vested interests of
the committee members. For the third time, this evidence was scrutinized by the CBI itself, so the
chances of the evidence obtained being arbitrary or flawed, or even born out of malicious intent, are near
to zilch. Hence it is humbly submitted that the players, viz Liam and Hank, were involved in spot fixing
and there is sufficiently scrutinized evidence to suggest so. It is pleaded by the respondent, on the said
grounds, that the accused be convicted of the following sections of IPC, dealing with organized crime and
conspiracy.
4.3 The players were found to commit the said offense in furtherance of common intention.
The players confess that they were paid huge amount of money to indulge in spot fixing. By pretending
themselves as the vulnerable sentinels, they tried to challenge the action taken against them. They have
received money to indulge in this malpractice for the greed of money, fame, and qualification for the
national team. There is a clear common intention seen in this well planned activity, thus the players are
equally responsible for this in their individual capacity under Section 34 of the IPC24 which states that:
When a criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone. The nature of act
committed by them is criminal and this is a part of a well planned stratagy. Hence it can be said that the
ambiguities seen in the matches are not mere coincidences but have been planned with a criminal intent.
Thus Section 34 read with Section 120B of the IPC, which lays down the punishment for criminal
conspiracy, would hold them liable for the offense of criminal conspiracy.
4.4 It is found that the players have deceived the officials into entering into a contract with them
and also have misappropriated the property entrusted with them
Here, the prosecution has to prove that the accused deceived the victim, and intentionally led that person
to do or omit to do something that he/she would, or would not have otherwise done. If the officials were
aware that the player would indulge in spot-fixing, they would not have offered a contract to such player,
or made him part of the playing eleven. The accused players, by representing to the officials that they
would play honestly, and to the best of their abilities, deceived the officials into entering into a contract
24 The Indian Penal Code, 1860

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with them. This constitutes the offense of cheating on part of the accused. Cheating is defined in Section
415 of the IPC, which reads Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to consent that any person shall retain any
property, or intentionally induces the person so deceived to do or omit to do anything which he would not
do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property, is said to cheat.
The players can also be prosecuted under section 409 of IPC25 which deals with the criminal breach of
trust. Though the section talks about the property entrusted to the accused, it has been previously
established by the Indian judicial system that the term property should not be given a restricted
meaning.
For instance,
The Supreme Court in R.K. Dalmia v. Delhi Administration [1962]26 ruled that the term property
should not be given a restricted meaning. The test should be whether that particular kind of property can
be subject to the acts covered by that section. This was subsequently reiterated by the Supreme Court in
Common Cause v. Union of India [1999]27, where the Court ruled that the term property covers only
property of the kind against which the offence of criminal breach of trust can be committed. As is
evident from these rulings of the Court, the decision would depend on the interpretation given by a court
to the term property.
The basic guideline that follows from all these judgments is that the term property is not given a
restricted meaning and the meaning is subject to change as per the context of the case.
In the context of a players contractual obligations with a franchise, certain elements of the contract
entrust property to the player, which they dishonestly misappropriated by entering into a conspiracy,
and committing spot-fixing.
4.5 Acts committed by the players come under the ambit of the CBIs definition of fixing.
There is no specific legislation in India that deals exclusively with the matters of spot fixing and match
fixing. Replying upon the CBIs definition of Match Fixing, it is found in the course of investigation that
the players have committed certain acts which essentially amount to match fixing.

25 ibid
26 962 AIR 1821, 1963 SCR (1) 253
27 Common cause V. Union of India (1999) 6 SCC 667

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While inquiring into the matter involving Ajit Chandila, Ankit Chavan and S. Sreesanth, CBI defined
'Match Fixing' as28
(i)instances where an individual player or group of players received money
individually/collectively to underperform;
It is found that the players Liam and Hank received money to underperform, the result of which has been
described in paragraph 10 of the factsheet. This makes it reasonable to say that under this definition, they
are liable of the charge of fixing.

(iii) instances where players passed on information to a betting syndicate about team
composition, probable result, pitch condition, weather, etc.,
It has been fairly established in the previous contentions that the team MK had relations with a betting
syndicate since one of the sweat equity share owners was the owner of a betting portal. This makes it
reasonable to believe that the inside information such as mentioned above, would be passed on for the
purpose of betting.
4.6 Players are liable under rules and regulations apart from Indian municipal legislations29
In the alternate, it is humbly submitted by the respondent, that in addition to these Indian legislations, the
accused are liable under a number of rules and regulations laid down by the organizations such as BCCI,
ICC, as well as guidelines provided by the operational rules of IPL.
The players are found involved in the offenses like spot fixing, and violating the anti corruption
code laid down by BCCI as well as ICC. We contend that they are guilty under the offense of
corruption which comes under the ambit of article 2.1 of the Anti-Corruption Code of Conduct of
ICC30.
The players Liam and Hank were found to have relations with a betting syndicate. This is
violative of Indian laws on gambling, and this also violates the article 2.2 of the anti-corruption
code of ICC31 which deals with betting.
Paragraph 10 of the factsheet talks about the ambiguity and inconsistencies in the performance of
28
29
30
31

CBI's report on match fixing and related malpractices, 2000 (Section 4)


Justice Mudgal IPL Probe Committee Report, 2014
ICC anti corruption code, 2014
ibid

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MK, which are committed by the players essentially by the misuse of inside information that they
had, regarding their team planning. Also, there is a possibility of leakage of this confidential
inside information of the team. hence, the players are liable under article 2.3 of the ICC anticorruption rules32.
The acts committed by the players have affected the image of the league and its reputation. It has
caused a lot of reporting in the newspaper which may degrade the image of the GPL in the eyes of
the people of Godam, a country where cricket is nothing short of a religion.
Under Para 2.14 of the Operational Rules in the PCCIPL33, each person subject to the Operational
Rules shall not, during a match or otherwise, act or omit to act in any way which would or might
reasonably be anticipated to have an adverse effect on the image and/or reputation of such person,
any team, any player, any team official, the BCCI, the League and/or the Game or which would
otherwise bring any of the foregoing into disrepute.

32 ibid
33 IPL Code of conduct for players and team officials

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PRAYERS

In light of facts of the case, the arguments advanced and the authorities cited, this Honble Court
may be pleased to allow this appeal and adjudge and declare as follows:
In the matter of Xerxese Morennio, B.C.C.Go, and ors V Central Agency of Investigation:
1. To Quash the appeals filed by the Appplicants and uphold and maintain the status quo of the order
passed by CAI court and uphold the charges framed against them.
2. Pass any other order, which the court may deem fit in light of justice, equity and good conscience.
In the matter of Liam Jackson, Hank Jefferson, and ors V Internatonal Federation of Cricket:
1. Quash the appeals filed by the Applicants in the Honble Court, and uphold the decision given by
CAI court as valid and justified.
2. Pass any other order, which the court may deem fit in light of justice, equity and good conscience.
And for this act of kindness, the Respondents shall duty bound forever pray.

Respectfully Submitted,
Sd/(Counsel for the Respondents)

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