London Eye: First D-Day for Nirav Modi approaches

Updated : February 22, 2021 06:21 PM IST

The judgment on February 25 will be the first to take a position on the allegations of fraud.

Nirav Modi looks a different man these days at his appearance via video link every four weeks at the Westminster Magistrates Court for extension of his incarceration at Wandsworth prison. Whether he will feel a different man we will know on the day of the judgment in his extradition case on February 25.

If he were to win and also get bail, he would walk out a somewhat rounder looking man with a heavy beehive beard that he has grown over his last few months in jail. But walking out a free man is a big If, one among many in this case.

A recent precedent hanging heavy over this case is the court refusal to extradite Julian Assange to the US. But the court also refused to grant him bail while that extradition is considered by an appeals court. After being refused bail seven times now—twice by the High Court in appeal—the magistrate's court is unlikely to grant bail to Nirav Modi abruptly now.

The Assange verdict hangs just as heavy over Indian government hopes. The court hearing the arguments over the extradition of Assange found there was a sufficient case in facts and law to send him to the US. Extradition was refused on health grounds, particularly mental health issues and a reported proneness to suicide. Exactly that case has been made out in defence of Nirav Modi, with hopes no doubt of a similar outcome.

Whatever the verdict on February 25, an appeal is certain to follow either way. And that is where the Vijay Mallya precedent appears. If the Indian government were to win at Westminster, and again all through the appeals process, what would stop Nirav Modi then from applying for asylum as Mallya did? And after all that to then seek to block extradition on medical grounds through a direct appeal to the government, as legally provided for. February 25 is only the first of a string of D-Days in this case.

Evidence

Nirav Modi has presented a defence along several fronts. First, that he committed no fraud through obtaining funds from several banks on the strength of serial letters of undertaking underwritten by the Punjab National Bank. The transactions, he has argued, were purely commercial. He blames the action launched against him for his inability to repay the loans. So far as the substantive argument goes, his case is that the Punjab National Bank lost as a result of going after him, not as a result of anything he did.

He has argued also that no evidence has been presented to show that he diverted money to companies and accounts of which he and his family members were beneficiaries. He denies too that once the investigation began, he threatened witnesses or tampered with evidence.

This last line of defence seems on record so far the weakest link in his chain of claims. He has lost that defence seven times out of seven in different courts hearing his bail application. On all occasions, the courts found enough evidence that he tampered with evidence and threatened witnesses to refuse bail.

That bail was refused after Nirav Modi offered himself for near house arrest instead. He upped his security to four million pounds, offered to be electronically tagged 24 hours a day, to never move out of his flat, to have his phone calls fully monitored, to have 24x7 security staff within his house to restrict his movement from one room to another—and to pay for all this. The courts turned down all of this.

The judgment on February 25 will be the first to take a position on the allegations of fraud. The court is not tasked with giving a ruling on fraud—the threshold of evidence required is far lower than that. The court needs only to be convinced prima facie on the balance of evidence that there is a sufficient case for him to answer. And that should then necessitate his extradition to then face a full trial in India.

With every extradition case, India’s political and judicial system goes on trial.

His defence has been—and a lengthy one—that India is not good enough for him to be sent back to. Retired judges, a range of experts, an array of reports were presented to the court to suggest that India cannot offer reasonable detention conditions and a fair trial. Those arguments have blocked all extradition orders to India before Sanjeev Chawla in the cricket match-fixing case, who actually was extradited, and then Vijay Mallya.

The ruling on Nirav Modi will be a ruling from this court on what it finds India’s legal and judicial systems to be.

—London Eye is a weekly column by CNBC-TV18’s Sanjay Suri, which gives a peek at business-as-unusual from London and around.

Read his columns here

London Eye: First D-Day for Nirav Modi approaches

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