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News broke recently that a former Indian High Court judge, Justice (retd.) Abhay Thipsay had told a UK Court that charges under cheating and allied offences against jeweller Nirav Modi were unlikely to stand under the Indian law.
Justice (Retd) Thipsay had joined the Congress party after retirement.
Speaking to Bar & Bench, however, the former judge of the Bombay and Allahabad High Courts expressed his surprise over the ensuing furore, explaining that he had only commented on what the Indian law is, as it stands.
“There is nothing political. It is not that it is a secret document (his written opinion). I gave it to the Government of India long back, and they replied to that also. I don’t know, why they are suddenly upset", he said.
Justice (retd.) Thipsay had given his written opinion after a London-based Boutique Law LLP, a firm that is defending Nirav Modi approached him for the same.
“Why they approached me, I don’t know. Some Indian firms might have suggested to them”, Justice (Retd.) Thipsay said.
He added, “They had approached me (asking) if I can give a written opinion. After this, they asked if they can rely on this (the written opinion) in Court. I said ‘alright.’ Then they indicated to me that you may have to give evidence in the Court if required. This was only on the points of Indian law and the job was to assist the Court in forming an opinion on Indian law.”
The former judge informed that, accordingly, when the UK Court sought his assistance, he provided the same through a video hearing.
As for why he finds that the case charged against Nirav Modi is a weak one under Indian law (as far as the charges of cheating and conspiracy go), Justice (retd.) Thipsay explained,
“See, the main allegation was that he has cheated Punjab National Bank - who are the bank officers - by inducing them to issue LoUs without providing for sufficient security etc. This is the primary allegation… (However) When I studied the papers, I found that they (PNB) themselves are wrongdoers.”
He added, “For our Indian law there has to be a person who is deceived (for the offence of “cheating”). In cheating there is one person who deceives and the other who is deceived, The deceived person takes action for an act which results in wrongful gain or wrongful loss. Here, although dishonesty is alleged, nobody is deceived.”
Justice (Retd.) Thipsay remarked that while it is claimed that PNB itself was deceived, he had given his opinion that PNB is not a real person and the persons who acted for PNB themselves were wrongdoers.
“It (PNB) has no mind. It cannot accept any representation. So somebody from the organisation must have been deceived. Suppose you are the officer issuing the LoUs and I tell you something false. Based on that, then you can say PNB is deceived. Here, the case is not that", he observed. He added,
“On the contrary the officers are in gross violation of their own rules. By corrupt means, they are alleged to have issued the LoUs. The wrongdoing is not the result of any deception. So it is not cheating. That is the substance. To this there was no proper response from the GOI.”
Justice (retd.) Abhay Thipsay
On the other hand, the situation is different in the UK, Justice (retd.) Thipsay said. In the UK, under financial fraud laws, it may be enough that an act has been done fraudulently and there is wrongful gain caused.
Apart from the cheating charge, Justice (retd.) Thipsay also said that he had opined to the UK court that the charges of conspiracy levelled against Nirav Modi are vague. He explained,
“It is happening since 2011, so officers’ names, who are conspirators - you have to at least give some prior particulars of the conspiracy and it was to what. I found that some LoUs they were properly issued. Even during this last period, sometimes the margin of money is there, sometimes it is not there. Officers are also different. Though for a major portion, one of the accused was there, it is not that different officers at different points of time have done this.. sometimes they have followed the rules also. So I said that the conspiracy charge is too vague. That is my finding.”
Inter alia the former judge had also found that there was no proper sanction issued when he rendered the opinion. In this case, Justice (retd.) Thipsay says the sanction itself was irregular.
Nirav Modi, the prime accused in the PNB Scam, has been in jail since March 2019. Earlier this month, the UK High Court rejected Modi’s plea for bail a fifth time.