This article is written by Satyaki Deb, a B.A.LL.B.(Hons.) student from the Department of Law, Calcutta University. This article provides an exhaustive overview of the Nirav Modi scam from an analytical and legal viewpoint.
It has been published by Rachit Garg.
Hardly anyone could have predicted that on Valentine’s Day, the year 2018 will forever be marked as a black year for the banking industry. India’s biggest-ever banking scam shook the very core of the financial sector in India and at the helm of this fiasco, sat none other than the diamond mogul billionaire, Nirav Modi and his cronies. The magnitude of the scam was a staggering Rs.11,400 crores (about 1.8 billion dollars) and it mainly took place at a single branch in Mumbai of the Punjab National Bank (PNB), the second-biggest public sector lender in India. This article explores the avenues of this billion-dollar scam with an analytical and legal spotlight.
Who is Nirav Modi
The early life of Nirav Modi
Born in a family of diamond merchants in Palanpur, Gujarat on 27th February, 1971, Nirav Deepak Modi moved to Antwerp, Belgium soon afterwards. Modi took admitted to the Wharton School, University of Pennsylvania but later dropped out of the same. At the age of 19, Modi and his father Deepak Modi returned back to India and shifted to Mumbai to join his uncle Mehul Choksi and his Gitanjali Group, which was a retail jewellery company with approximately 4000 stores in India. Later, Modi married Ami Choksi, the daughter of diamond businessman Amukuraj Choksi, whom he had met during his Wharton School days.
Though Nirav Modi will go down in history as a scamster, he was without any doubt, a successful and visionary businessman. The following achievements and accolades testify to his excellent business skills:
- In 2010, Modi became the first jeweller hailing from India to be featured on the esteemed covers of Christie’s and Sotheby’s catalogues.
- In November 2010, at a Christie’s auction in Hong Kong, the Golconda Lotus Necklace, owned by Nirav Modi, featuring a rare 12.29 carat Golconda diamond, pink diamonds and exclusive Aindra cut diamonds, was sold for a staggering price.
- Afterwards in 2012, the ‘Riviere of Perfection’, a solitaire collection which was an integral part of the Nirav Modi Jewellery collection and which featured 36 flawless white diamonds and weighed a total of 88.88 carats was sold again at Sotheby’s auction in Hong Kong.
- In 2013, in the prestigious Forbes list, Nirav Modi got featured in the Forbes list of Indian Billionaires.
- Nirav Modi also owned the Patents for Jasmine cut diamond, United States Design Patent USD763118S1, United States Design Patent US D738,777 A, Jewellery Design.
Nirav Modi’s company
In 1999, Nirav Modi founded the Firestar Diamond International Company specialising mainly in high-end jewellery. Further, in 2014 ‘NIRAV MODI’ the brand was born with its first store opening in New Delhi, India. In 2015, Nirav Modi opened stores in Mumbai, Madison Avenue – New York, and Hong Kong. His company is claimed to have made more than $2 Billion in sales. He also has other companies in the name of Solar Exports, Stellar Diamonds, and Diamond R US.
Nirav Modi’s net worth
Before the PNB Scam hit the headlines in 2018, Nirav Modi was estimated to have a net worth of $1.7 billion. Post the fiasco becoming public, his net worth dropped like an inevitable avalanche and Forbes too removed his name from their list of billionaires.
Nirav Modi’s family
Nirav Modi is married to Ami Modi and they have three children, two daughters and one son, viz. Rohin, Apasha and Ananya. His wife Ami Modi, brothers Neeshal Modi and Nehal Modi, uncle Mehul Choksi, sister Purvi Modi etc are all getting investigated by the ED (Enforcement Directorate) for scams, fraud and money laundering.
What is the Nirav Modi PNB scam story
How was the PNB scam done by Nirav Modi and Mehul Choksi
The plot of the scam was quite elaborate and even though investigations are still ongoing, it can be said that the scam was led by Nirav Modi and his uncle Mehul Choksi in collusion with some of the bank officials of Punjab National Bank. To comprehend the modus operandi of this grand greedy plan to defraud a leading public sector bank, it is necessary to understand the term Letter of Undertaking (LoU) first for it was the unauthorised LoUs granted to Nirav Modi and Company by corrupted PNB officials that helped Modi run away with thousands of crores of taxpayers hard-earned money.
So, LoU stands for Letter of Undertaking which is a form of bank guarantee. What this bank guarantee in the form of LoU does is it allows the LoU receiver to raise money overseas by showing the LoU. The foreign banks (overseas branches of Indian Banks) see the LoU and give credit/loan to the debtor and the bank giving the LoU stays as a guarantee that in case the debtor fails to repay the debt, the bank will repay the same. When a person walks into a bank seeking an LoU, the bank seeks collateral, usually in the form of a Fixed Deposit (FD) or property held in his name. Also, a credit limit is sanctioned by the bank giving LoU. So, basically, LoUs gave cheap buyer’s credit for short term purposes.
What happened in this scam is unauthorised Letters of Undertakings (LoUs) were given by corrupted PNB officials to Nirav Modi and his firm. These LoUs were given without any collateral as security and any sanctioned credit limit. To make matters worse, all these transactions were not added to the PNB’s Core Banking System (CBS) which is used for record-keeping purposes. Also in some cases, a lower amount was quoted while making a corresponding entry. All these unauthorised LoU related transactions were done by the corrupt officials using the SWIFT system, which is an elaborate messaging network used by the banks and financial institutions internationally to accurately, quickly, and safely send and receive financial information. The SWIFT system had no linkage with the bank’s record keeping core system, i.e.,CBS and this gave Nirav Modi and his cronies the shadow area to operate with unauthorised LoUs. In other words, the SWIFT bypassed the CBS of the bank. Since the overseas Indian bank branches trust their Indian counterparts, without scrutinising the credit quality, they promptly issued loans (buyer’s credit) to Nirav Modi and his firms. Added to this, though these LoUs were given for import-related payments, Nirav Modi and his cronies used them to clear previous loans and for other purposes. These went on rampant and unchecked in the shadows for about seven years by Nirav Modi, Mehul Choksi and their associates in collusion with corrupt PNB officials.
When and how did the PNB scam come to light?
As stated earlier, this sham was going on in collusion with corrupt officials of PNB at a branch in Mumbai. When one of the corrupt officials retired, a new official took his place. But this official asked for collateral from Nirav Modi and his firms for granting LoUs as per the norms upon which he was told that Nirav Modi and his firms are used to getting LoUs without collateral for many years. Also, the foreign banks who had given loans to Nirav Modi and his firms based on PNB’s LoUs came knocking at the doors of PNB. At this juncture, internal investigations had started but no records of such transactions were found because the corrupt officials did not keep relevant records of the unauthorised LoUs in the bank’s CBS (Core Banking System).
Thus, on 14th February 2018, the Punjab National Bank, the second-largest Public sector Bank helplessly reported to stock exchanges, the Central Bureau of Investigation (CBI), Reserve Bank of India (RBI) and the public regarding fraudulent transactions of a staggering value of 1.8 billion dollars (approximately) and the Nirav Modi scam hit the headlines.
Timeline of the Nirav Modi scam
How the Nirav Modi scam unfolded and evolved is enumerated below in the form of the following timeline:
|Dates||Important events of the Nirav Modi scam|
|29th January, 2018||Punjab National Bank (PNB) complained to the police authorities that two of its staff members in collusion with Nirav Modi and Mehul Choksi had cheated the bank for about two billion dollars.|
|5th February, 2018||The PNB informed SEBI that it had started its own internal inquiry into the scam and the CBI after convening a meeting, took over the inquiry process.|
|14th February, 2018||PNB declared a fraud of Rs. 11,400 crores of money and additionally, foreign branches of Indian overseas banks also declared that money was being credited to Nirav Modi and his firms because of the unapproved ways of banking by PNB staff in the form of granting unsecured and unauthorised Letters of Undertakings (LoUs).|
|16th February, 2018||After the complaint was filed against Mehul Choksi, CBI investigated around 20 retailing stores of Choksi’s Gitanjali Group. PNB published a positive statement about hoping for the recovery of loss within a period of six months. The credit exposure to the Nirav Modi fraud of different banks came forward from the risk exposure data. They are as follows:Union Bank of India – $300 million (approx)State Bank of India – $212 million (approx)UCO Bank – $412 million (approx)Allahabad Bank – $367 million (approx)The Reserve Bank of India announced the requirement of tight supervisory and regulatory actions.|
|17th February, 2018||CBI issued arrest warrants against the two corrupt employees of PNB and executives of Nirav Modi’s group who were integral to the scam. The Enforcement Directorate (ED) seized diamonds, gold, and jewellery items from Nirav Modi’s home, shops and offices worth Rs.56.74 billion (approx).|
|20th February, 2018||The share prices of PNB tanked into a nosedive because of the immense fear and volatility induced by the scam and lost thousands of crores in market capitalization. The then Finance Minister Late Arun Jaitley and RBI issued statements about the omission of linking of SWIFT with the CBS (Core Banking System).Diamond mogul Nirav Modi and his lawyers vehemently denied any crimes or offences. But, ED after investigation found that Nirav Modi and Mehul Choksi had laundered the funds illegally through nearly 100 shell companies. Three more officers of Nirav Modi Group were taken into custody by CBI for interrogation and investigation.|
|21st February, 2018||CBI started taking into custody many corrupt officers who were involved in the scam including the general manager of PNB, Mr. Rajesh Jindal who served for many years in the Mumbai Branch where the scam allegedly took place.|
|23rd February, 2018||Institute of Chartered Accountants of India (ICAI) appointed independent auditors to investigate the PNB scam.RBI declared stricter control in supervising and regulating the SWIFT system.|
|27th February, 2018||Bankruptcy proceedings were filed by Nirav Modi’s firm Firestar Diamond International in the United States.|
|28th February, 2018||M.K.Sharma, a former auditor was arrested by CBI for manipulating the audit system in the PNB scam.|
|1st March, 2018||Internal Auditor of PNB Bishnubrata Mishra was arrested by CBI for his role in the scam.|
|6th March, 2018||CBI took into custody Vipul Chitalia, Vice President of Banking Operations of Gitanjali group.|
|2nd June, 2018||Interpol issued a Red Corner Notice against Nirav Modi for money laundering and fraud.|
|26th June, 2018||A Mumbai Court issued an order against Nirav Modi and Mehul Choksi to appear before the Court or be declared as fugitives as per the provisions of the Prevention of Money Laundering Act (PMLA), 2002.|
|3rd August, 2018||The Indian government requested the UK government for the extradition of fugitive billionaire Nirav Modi back to India to face trial.|
|18th March, 2019||The Westminster Court in London issued an arrest warrant against fugitive diamantaire Nirav Modi after the Indian government’s request was duly forwarded to the Court by the UK Home Office.|
|20th March, 2019||Nirav Modi was arrested in London after the Westminster Court issued an arrest warrant against the fugitive billionaire and he was sent to Her Majesty’s Prison (HMP) Wandsworth.|
|29th March, 2019||The bail application by Nirav Modi was rejected by the Westminster Court.|
|25th February, 2021||The UK’s Westminster Magistrates’ Court, presided by District Judge Sam Goozee ruled Nirav Modi can be extradited to India to face charges of fraud and money laundering.|
Aftermath of the PNB scam
The Nirav Modi PNB Scam shook the entire financial sector in India and what followed soon after is as follows:
- On March 13, 2018, about a month from the scam hitting headlines, RBI issued a notice banning banks from issuing guarantees in the form of Letters of Undertaking (LOU) to prevent any further misuse of this facility with immediate effect. Thus, the process of issuance of LoUs for trade-related credits for imports in India got discontinued by commercial banks with immediate effect as per the order of RBI.
- RBI also ordered the linkage of the SWIFT system with the banks’ record-keeping system i.e. the Core Banking System (CBS) within the stipulated deadline.
- Nirav Modi was charged with criminal conspiracy, cheating, dishonesty, fraud, breach of trust and breach of contract.
- The banking sector, jewellery sector, and insurance sector suffered from some serious negative lashbacks.
- PNB was expected to clear about Rs. 11,400 crores (about 1.8 billion dollars) it owed in the form of bank guarantees to overseas branches of Indian Banks like UCO Bank, Allahabad Bank, Axis Bank, Union Bank of India, and SBI.
Legal aspects of the Nirav Modi PNB scam
The legal angle in a 2 billion dollar scam is bound to be complex. But the same when analysed can be broken down into two areas viz firstly, the area investigated by the Central Bureau of Investigation (CBI) and secondly, the area investigated by the Enforcement Directorate (ED). The detailed legal aspect of the PNB scam and the charges Nirav Modi is facing can be analysed as follows:
|Investigating Authorities||Charges||Relevant Statutes||Punishments|
|Central Bureau of Investigation (CBI)||(Section 120B) Criminal conspiracy||Indian Penal Code, 1860||If convicted shall be punished in the same manner as if the convict has abetted such offences.|
|(Section 409)Criminal breach of trust by public servant, merchant,banker or agent||Indian Penal Code, 1860||If convicted shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.|
|(Section 420)Cheating and dishonestly inducing delivery of property||Indian Penal Code, 1860||If convicted shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.|
|Corruption charges under Section 7A and Section 8||Prevention of Corruption Act, 1988||If convicted shall be punished with imprisonment for a term which shall not be less than three years and may extend to seven years or with fine or with both:|
|(Section 201)Causing the disappearance of evidence||Indian Penal Code, 1860||If convicted shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.|
|(Section 506)Criminal intimidation to cause death||Indian Penal Code, 1860||If convicted shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.|
|Enforcement Directorate (ED)||Money laundering charges under Section 3 and Section 4||Prevention of Money Laundering Act, 2002||If convicted shall be punished with rigorous imprisonment for a term not less than three years but which may extend to seven years and shall also be liable to fine|
Nirav Modi’s current status
On March 20, 2019, Nirav Modi was arrested in the UK and he has been at the Wandsworth Prison, in south-west London ever since. Even after his three year anniversary in jail, the long and complicated legal process of his extradition to India is yet to be over. But no doubt the endgame of this prolonged extradition saga is approaching fast for one of the prime excuses of Nirav Modi that India and her prisons are not safe because of the raging Covid 19 pandemic in the country is out of the window at present.
The UK’s Westminster Magistrates’ Court, presided by District Judge Sam Goozee on 25th February, last year (2021) had already ruled in favour of Modi’s extradition and the Appellate Court is yet to deliver their verdict soon. Also, UK Prime Minister Boris Johnson during his recent visit to India in April, 2022 reiterated that UK Authorities had ordered Nirav Modi’s extradition already and the likes of him are definitely not welcome to stay in the UK.
The lawyers of Nirav Modi are now inter alia relying on the mental state of Nirav Modi to stop his extradition. Their arguments range from stating that Modi’s mental state is not strong enough to bear the burden of the extradition process to Indian facilities not good enough for the treatment of his mind. Basically, as the Appellate Court observed that at this point any further arguments are pretty much pointless because whatever the Indian Authorities said or promised, the defence said it was not good enough.
It is true that Nirav Modi has a family history of mental trauma where his mother had committed suicide. Edward Fitzgerald QC, arguing on behalf of Nirav Modi had relied on this family history of suicide and pleaded about the severe depression and high risk of suicide of Nirav Modi if he were to face extradition back to India. Reliance was also placed on Article 3 of the European Convention of Human Rights, 1950 (ECHR’s provision on Prohibition of Torture ) and Section 91 of the Extradition Act, 2003 (Provision relating to physical or mental ill-health) by Nirav Modi’s legal team to focus on “high risk of suicide” and the “adequacy of any measures capable of preventing successful suicide attempts” in attempts to stop his extradition.
To counter all these arguments, UK’s Crown Prosecution Service (CPS) Barrister Helen Malcolm QC, on behalf of the Indian authorities gave a high level of diplomatic assurance to Lord Justice Jeremy Stuart-Smith and Justice Robert Jay, presiding over the hearing at the Royal Courts of Justice that adequate specialist medical care and an ambulance at hand were to be present at the Barrack 12 of Mumbai Central Prison on Arthur Road, where the accused is to be held after his extradition to look after Modi’s mental health and to make sure that there is no deterioration of the same.
In the event, Nirav wins his appeal hearing in the High Court, he can stop being extradited unless the Indian Authorities are successful in getting permission to appeal at the Supreme Court of UK on a point of law of general public importance. On the contrary, if he loses his appeal hearing in the High Court, Nirav Modi can approach the Supreme Court on a point of law of public importance, to be applied to the Supreme Court against the High Court’s decision within 14 days of the High Court verdict. However, the catch here is that Modi can knock on the doors of the Supreme Court only if the High Court has certified that the case (extradition issue) involves a point of law of general public importance.
Effect of PNB scam on Nirav Modi’s family
In this grand heist of a scam, needless to say, Nirav Modi was not alone. His uncle Mehul Choksi, his wife Ami Modi, sister Purvi Modi, brothers Neeshal Modi and Nehal Modi are all being investigated by the Indian authorities in relation to the PNB Scam for charges ranging from aiding Nirav Modi to money laundering via companies owned by family members. About one year after Nirav Modi’s arrest in Great Britain and two years after the scam made headlines, Interpol at the request of ED (Enforcement Directorate) issued a Red Notice in August, 2020 for Modi’s wife, US citizen Ami Modi. The Red Notice is not an arrest warrant per se but it will allow all the member countries (192) of Interpol to look out for Ami Modi and since she will be in the database of Interpol at all ports and airports of the world, her free movement will severely be restricted.
Impact of the Nirav Modi PNB scam
Impact of the Nirav Modi scam on the stock market
Investors lose confidence in the financial sector when scams of this magnitude come to the surface and the PNB Scam was no exception. NIFTY and SENSEX suffered terrible blows in the aftermath of the Nirav Modi Scam. A more detailed effect of the scam on the stock market is enumerated below:
Impact of the Nirav Modi scam on bank stocks
Bank stocks play a major role in the stock market and there are thirty-four nationalised banks in India. In the month of February, 2018, when the Nirav Modi scam became public, the banking stocks tanked immensely and the market cap of these thirty-four banks decreased by more than thirty-six thousand crores of rupees. PNB stocks alone lost investors’ wealth amounting to eight thousand crores of rupees. Without delving deep into the statistics and numericals, it can be said the exposed banks (UCO Bank, Allahabad Bank, Axis Bank, Union Bank of India, and SBI) i.e. the banks who gave loans based on the unauthorised LoUs suffered the brunt of the tsunami of loss.
Impact of the Nirav Modi scam on jewellery stocks
Nirav Modi’s jewellery companies like Firestar Diamond International Company were not listed on the stock market exchanges. But Nirav Modi’s uncle, Mehul Choksi’s Gitanjali Gems stocks started a skydive after the scam went public. Nirav Modi and Mehul Choksi controlled a considerable portion of the jewellery sector in India and the banks became extremely unwilling and sceptical about giving credits to the other jewellery companies. This led to more volatility in the jewellery sector and investors lost more and more wealth.
Impact of the Nirav Modi scam on LIC
Life Insurance Corporation (LIC), another State-owned Company was badly hit by the Nirav Modi scam indirectly. It is common knowledge that LIC invests money into the stock market and LIC was the single largest institutional investor in the exposed banks viz Punjab National Bank, Allahabad Bank, Union Bank of India and Mehul Choksi’s Gitanjali Gems. So, when the stocks of these companies plummeted because of the Nirav Modi scam, LIC lost thousands of crores of rupees.
Impact of the Nirav Modi scam on PNB’s credit rating
The Nirav Modi scam left the PNB scarred in more than one way. The two billion dollar scam severely impacted PNB’s credit ratings as published by various rating organisations and bureaus. In the aftermath of the scam, CRISIL had put PNB’s credit rating on ‘watch’. Fitch’s local arm, India Ratings, had cut PNB’s long-term issuer rating to “IND AA+” with a negative outlook from “IND AAA” soon after the scam became public. Further, international rating agency Moody’s followed suit and downgraded state-run Punjab National Bank’s (PNB) rating to Ba1/NP from Baa3/P-3. Although, present ratings are more or less back to the pre-scam level.
Impact of the Nirav Modi scam on the export-import industry
Letter of Undertakings (LoUs) were crucial for any businessman of the export-import industry for they provided short term credit at low interest rates. Now one rotten apple of Nirav Modi led to the complete ban of LoUs for the entire industry thereby severely jeopardising the entire export-import sector. Even though other forms of credits are still available, the higher interest rates are burning deep holes in their pockets and making other businessmen pay for Nirav Modi’s greed. Specially the small time traders have been the worst sufferers. Loss of arbitrage for businessmen, depreciation of the Indian rupee etc were all a result of the billion dollar Nirav Modi scam.
Reforms introduced after the Nirav Modi PNB scam
The following reforms were introduced post India’s biggest banking fraud:
- On March 13, 2018, after about a month from the scam hitting headlines, the Reserve Bank of India (RBI) issued a notice banning banks from issuing guarantees in the form of Letters of Undertaking (LoU) to prevent any further misuse of this facility with immediate effect. Thus, the process of issuance of LoUs for trade-related credits for imports in India got discontinued by commercial banks with immediate effect as per the order of RBI. This banning of LoUs outright was later criticised by experts as RBI’s knee-jerk reaction in panic.
- RBI also ordered the integration of the SWIFT system with the banks’ record-keeping system i.e. the Core Banking System (CBS) within stipulated deadlines. The integration of SWIFT with CBS will prevent future scams along similar lines.
- Better Risk Management Framework was put into place with an efficient system of checks and balances to optimise the risk management system.
- RBI had also set up an expert committee headed by YH Malegam, a former member of the Central Board of Directors of RBI, to investigate the reasons for high divergence observed in asset classification, various incidents of fraud, breach of trust and necessary interventions (also in terms of IT intervention) to prevent such frauds in future.
- RBI also issued Prompt Corrective Action (PCA) framework to the banks like UCO Bank, Dena Bank, IDBI Bank, Oriental Bank of Commerce, Indian Overseas Bank, Central Bank of India, Corporation Bank, Bank of India, Bank of Maharashtra, Allahabad Bank and United Bank of India to encourage them to abstain from riskier bank practices and stress on conserving capital.
- The RBI also ordered the banks to tighten the use of the SWIFT framework; a limit on foreign currency payment instructions where beneficiaries were individuals; and an additional layer of security on transactions above a certain threshold was told to be put in place.
- To curb the menace of offenders escaping to foreign countries and avoiding prosecution, the Indian Government enacted the Fugitive Economic Offenders Act (2018) w.e.f. 21st April, 2018. Any person who has committed offences like counterfeiting government stamps or currency, cheque dishonour, money laundering, transactions defrauding creditors and other offences under this Act amounting to Rs. 100 crores or more and has left India to avoid prosecution and refuses to return can be declared as a fugitive economic offender. Moreover, all his properties (including benami properties) can be confiscated by the central government and all such rights and titles of the properties shall vest with the Indian government without any encumbrances.
When the Nirav Modi scam hit the headlines in the spring of 2018, the miseries of the common man were inevitably visible in the form of long lines and sorrowful crowds standing in front of the gates of their bank branches. The Nirav Modi scam struck as the biggest earthquake in India’s banking history and in its aftershock followed the further loss of thousands of crores of rupees of investors’ wealth when the stock market took a nosedive and crashed. It is true that after this scam, many reforms were introduced in the form of the Fugitive Economic Offenders Act (2018), integration of SWIFT with CBS (Core Banking System), stricter regulations etc. but an effective deterrent that will scare the future Nirav Modis from playing with India’s economy is yet to see the daylight. Until more stringent laws and regulations are introduced along with mechanisms to ensure the full compliance of such security regulations, the menace of greedy fraudsters in the banking sector will remain miles away from becoming a thing of the past.
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