(Prevention of Money-Laundering Act, 20021) (PMLA)
An amount 1.945 billion Swiss Francs (about INR 9,295 Crore) has been alleged to have been laundered or stacked by Indians in Swiss banks2, and this is an official information derived from the White Paper of the Government of India in the year 2012. However, the specialists say that the real amount is well above the estimated level. As per a study by United Nations (UNODC3), it is suggested that all criminal proceeds are likely to have amounted to some 3.6 per cent of GDP (2.3 - 5.5 per cent) or around US$2.1 trillion in 20094.
The term "Black Money" is not easy to define as it may have the characteristics of chameleon, changing its colour to suit the purpose, and the same includes 'unaccounted income', 'black income', 'dirty money', 'black wealth', 'underground wealth', 'black economy', 'parallel economy', 'shadow economy', and 'underground' or 'unofficial' economy.
India has a specific Money-Laundering law in the Prevention of Money-Laundering Act, 20025 (hereinafter referred as 'PMLA'6), which has been amended from time to time to plug loopholes, and it provides the punishment for Money- Laundering.
Money-Laundering – The Indian Definition
As per the Section 37 of the Prevention of Money-Laundering Act, 20028 (PMLA9), the offence of Money- Laundering is defined as under:
- directly or indirectly,
- attempts to indulge, or
- knowingly assists, or
- knowingly is party, or
- is actually involved in
- any process, or
- activity connected,
- with the Proceeds of Crime, including
- Acquisition or use; and
- Projecting or Claiming it as Untainted Property shall be guilty of offence of Money-Laundering."
The definition of "Money-Laundering" in India is comprehensive enough to cover most of the instances of converting the black money into white, as the same will depend upon the willingness of Enforcement Authorities for strong implementation of, which is in any case subject to judicial scrutiny. Some of the examples of Money-Laundering in the corporate world cover the instances relating to Shell Companies, Foreign Investments, Corporate Mismanagement, Insider Trading and Bribery.
PROCEEDS OF CRIME
The term "PROCEEDS OF CRIME", which is an essential ingredient of Money-Laundering has been defined under Section 2(u) of PMLA, and it means and includes
- Any property derived or obtained
- Directly or indirectly
- By any person
- as a result of criminal activity
- relating to a
- scheduled offense or
- Value of any such property.
It is only when proceeds of crime are projected or claimed as untainted property i.e. uncorrupted; the offense of Money- Laundering is committed.
Methods and Means for Generation of Black Money in the Corporate World10
Some of the ways for generation of black money which are peculiar to the Corporate Sectors may be narrated herein below:
- External Trade and Transfer Pricing;
- Manipulation by Way of International Transactions through Associate Enterprises;
- Financial Market Transactions;
- Out of Book Transactions;
- Parallel Books of Accounts;
- Manipulation of Books of Account;
- Manipulation of Sales/Receipts;
- Under-reporting of Production;
- Manipulation of Expenses;
- Manipulations of Accounts;
- Manipulation of Capital;
- Manipulation of Closing Stock;
- Manipulation of Capital Expenses;
- Generation of Black money in Some Vulnerable Sections of the Economy;
- Land and Real Estate Transactions;
- Bullion and Jewellery Transactions;
- Public Procurement;
- Non-profit Sector;
- Informal Sector and Cash Economy;
- Investment through Innovative Derivative Instruments.
Big Ticket Scams vs. Small Ticket Scams and PMLA11
The myth that only big ticket scams are covered under PMLA is nothing but living in a fool's paradise. Under PMLA, committing any offenses as specified in the Part A12 and Part C13 of the Schedule14 of PMLA, will invoke the provisions of PMLA. Some of the Acts and offences, which may attract PMLA, are enumerated herein below:
- An offence which is the offence of Cross Border implications and is specified in Part A of Schedule under PMLA, or
- The offences against property under Chapter XVII15 of the Indian Penal Code is applicable, involving cross border implications.
- Offences under the
- The Indian Penal Code, 1860 including offences relating to Cheating, Counterfeiting of Government stamps, Dishonest or Fraudulent removal or Concealment of Property to prevent distribution among creditors, dishonestly or fraudulently preventing debt being available for creditors, Dishonest or Fraudulent execution of deed of transfer containing false statement of consideration.
- Offences under the Narcotic Drugs and Psychotropic Substances Act, 1985
- Offences under the Prevention of Corruption Act, 1988;
- Offences under the Securities and Exchange Board of India Act,
1992 including offences relating to
- Prohibition of manipulative and deceptive devices,
- Insider Trading and substantial Acquisition of securities or control.
- Offences under the Customs Act, 1962 relating to evasion of duty or prohibitions;
- Offences under the Emigration act, 1983
- Offences under the Foreigners act, 1946
- Offences under the Antiquities and Arts Treasures Act, 1972
- Offences Under The Copyright Act, 1957, including
- Offence of infringement of copyright or other rights conferred by Copyright Act.
- Knowing use of infringing copy of computer programme;
- Offences under the Trade Marks Act, 1999 including
- Application of false trademarks, trade descriptions, etc.
- Selling goods or providing services to which false trademark or false trade description is applied.
- Falsely representing a trade mark as registered.
- Abetment in India of acts done out of India.
- Offences under The Information Technology Act, 2000,
- Breach of confidentiality and privacy,
- Offence or contravention committed outside India.
- Offences under the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002
Why, so many legislations attract PMLA?
The endeavour of the Legislature is to cover not only the wealth earned through Illegal means, but also to bring Illegal Income under the purview of PMLA, which includes even Legal Income that is concealed from public authorities. As per the White Paper of May, 2012 by the Ministry of Finance, Government of India, The Money-Laundering is not only the wealth earned through illegal means, the same would also include legal income that is concealed from public authorities:
- To evade payment of Taxes (Income Tax, Excise Duty, Sales Tax, Stamp Duty, etc);
- To evade payment of other statutory contributions;
- To evade compliance with the provisions of Industrial laws such as the Industrial Dispute Act 1947, Minimum Wages Act 1948, Payment of Bonus Act 1936, Factories Act 1948, and Contract Labour (Regulation and Abolition) Act 1970; and / or
- To evade compliance with other laws and administrative procedures.
The above itself clarifies, why PMLA has been amended to include a wide range of legalisations in India under its ambit, despite the fact that patently none of these legislations have anything to do with the definition of Money-Laundering, as of now any evasion of the state levies and dues will also tantamount to Money-Laundering and attract PMLA.
Who is liable for Offences by Companies?
Section 70 of PMLA deals with offences by Companies, providing that Where a person committing a contravention of any of the provisions of this Act or of any Rule, Direction or Order made there under is a Company (company" means anybody corporate and includes a firm or other association of individuals); and
- Every person who, At the time the contravention was committed,
- in charge of, and
- was responsible to the company,
- for the conduct of the business of the company
- as well as the company,
shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished under PMLA.
The only exception to such rule is that if such person proves that the contravention took place
- without his Knowledge, or
- that he exercised all due diligence to prevent such contravention.
Further, notwithstanding anything contained in sub-section (1) of Section 70 of PMLA, where a contravention of any of the provisions of this Act or of any Rule, Direction or Order made there under has been committed by a company and it is proved that the contravention has taken place
- with the consent or connivance of, or
- is attributable to any neglect on the part of any Director, Manager, Secretary or other Officer of any Company,
such Director, Manager, Secretary or other Officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Obligations of Banking Companies, Financial Institutions and Intermediaries
Under Section 12 of PMLA, all Banking Companies, Financial Institutions And Intermediaries are required to maintain a record of all transactions, including information relating to transactions for a period of 5 years, in such manner as to enable it to reconstruct individual transactions, and furnish to the concerned Authorities under PMLA, all information relating to such transactions, whether attempted or executed; the nature and value of such transactions; verify the identity of its clients and the beneficial owner, if any; and maintain record of documents evidencing identity of its clients and beneficial owners as well as account files and business correspondence relating to its clients.
Punishment under PMLA
Section 4 of PMLA prescribes the Punishment for Money-Laundering as under:
- Rigorous Imprisonment for a term
- which shall not be less than Three years, but
- which may extend to 7 years/10 years, and
- shall also be liable to fine.
In certain cases, the offences under Narcotic Drugs and Psychotropic Substances Act, 1985 are punishable with rigorous imprisonment upto 10 years. The fine under PMLA is without any limit and the same may be commensurate to the nature and extent of offence committed and the money laundered.
Under Section 19 of PMLA, the appropriate authority under the Act has the power to arrest any person provided that such authority on the basis of the material in his possession has reason to believe that such person has been guilty of any offence punishable under PMLA. After the arrest, the person arrested has to be informed about the grounds for his arrest. It is also required that the person so arrested shall, within 24 hours, be produced before the Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction.
Attachment, Adjudication and Confiscation
Under Section 5 of PMLA, if the authority as specified under the Section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in their possession, that-
- Any person is in possession of any Proceeds of Crime; and
- such Proceeds of crime are likely to be
- Transferred, or
- dealt with in any manner
- which may result in frustrating any proceedings relating to confiscation of such Proceeds of Crime,
may, by order in writing, provisionally attach such property for a period not exceeding 180 days from the date of the order, in such manner as may be prescribed.
Attachment of 3rd Party Properties
Under PMLA, even the property of any person may be attached under Section 5(1) 2nd Proviso, if the designated officer has reason to believe that the property in possession of such person is involved in Money-Laundering, and the non attachment will frustrate any proceedings under the Act.
However, nothing in Section 5 of PMLA shall prevent the person interested in the enjoyment of the immovable property attached from such enjoyment. "Person interested", in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.
What after the Attachment of Property?
Section 8 of PMLA provides an elaborate procedure for adjudication of a complaint under Section 5 of PMLA, and a person holding property on behalf of any other person, or if there is a claim by a third person not a party to the complaint, such person is also required to be implicated into the proceedings for adjudication, and heard by the Adjudicating Authority.
Presumptions and Burden of Proof
Where Money-Laundering involves two or more inter-connected transactions and one or more such transactions is or are proved to be connected with Money-Laundering, then for the purposes of Adjudication or Confiscation, under Section 8 or for the trial of the Money-Laundering offence, it shall unless otherwise proved, be presumed that the remaining transactions form part of such inter-connected transactions associated with Money-Laundering
Under Section 24 of PMLA, in any proceeding relating to the proceeds of crime a presumption is raised by the authority or court against any person charged with the offence of Money-Laundering, unless the contrary is proved by the accused, that such proceeds of crime are involved in money-laundering; and in the case of any third person, such authority or court may alsopresume that such proceeds of crime are involved in Money-Laundering.
Essentially, under PMLA, the burden of proof lies on the person who claims that the proceeds of crime alleged to be involved in Money-Laundering, are not involved in Money-Laundering. The presumption against the accused or any 3rd party is good enough to discharge the onus of the authorities under PMLA. Even in the case of Records, and Properties, which are found in the possession or control of any person in the course of a survey or search under the Act (Section 16, Section 17 and Section 18 of PMLA), under a presumption is raised that such records or property belongs to such person, and the contents of such records are true, and further that signatures and any part of such records in hand-writing of a particular person or in the hand-writing of such person, the presumptions as to the records in property are absolute, and the onus to prove the same otherwise, lies on such person.
It is clear that, a person accused of an offence under Section 3 of PMLA, whose property is attached and proceeded against for Confiscation, shall discharge the onus of proof (Section 24) vested in him by disclosing the sources of his Income, Earnings or Assets, out of which or means by which he has acquired the property attached, to discharge the burden that the property does not constitute proceeds of crime.
Where a transaction of acquisition of property is part of inter-connected transactions, the onus of establishing that the property acquired is not connected to the activity of Money-Laundering, is on the person in ownership, control or possession of the property, though not accused of a Section 3 offence under PMLA, provided one or more of the interconnected transactions is or are proved to be involved in Money-Laundering (Section 23).
Article by :
Vijay Pal Dalmia, Advocate & Partner of Vaish
Associates Advocates, India
Phone: +91 11 49292532 (Direct)
Phone: +91 11 49292525 (Board)
1st Floor, Mohan Dev Building, 13, Tolstoy Marg, New
Delhi 110001 (India)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.