White Collar Crimes- Notes- Q and A PDF

Preview

Summary

White Collar Crimes- Notes- Q and A...

Description

3 Year LLB – VI Semester Subject: White Collar Crimes Important Questions & Answers

Q-1)

Ans) Meaning of White Collar Crime White Collar Crimes are the crimes committed by a person of high social status and respectability during the course of his occupation. It is a crime that is committed by salaried professional workers or persons in business and that usually involves a form of financial theft or fraud. The term “White Collar Crime” was defined by sociologist Edwin Sutherland in 1939. These crimes are non-violent crimes committed by business people through deceptive activities who are able to access large amounts of money for the purpose of financial gain White Collar Crimes are committed by people who are involved in otherwise, lawful businesses and covers a wide range of activities. The perpetrators hold respectable positions in the communities unless their crime is discovered. The laws relating to white-collar crimes depends upon the exact nature of the crime committed. Types of White Collar Crimes

There are different types of white collar crimes. Some of them are as follows:  Bank Fraud: Bank Fraud means to engage in such activities in order to defraud a bank or using illegal means to obtain assets held by financial institutions.  Blackmail: Blackmail means demand for money by threatening some person to cause physical injury or exposing his secrets.  Bribery: Bribery means offering money, goods or any gift to someone in order to have control over his actions. It is a crime whether someone offers or accepts a bribe.  Computer Fraud: Computer frauds are such frauds which involve hacking or stealing information of some other person.  Embezzlement: When someone entrusted with money or property uses it for his own use, it is embezzlement.

 Extortion: When a person illegally obtains someone’s property by actual or threatened force.  Insider-Trading: When someone uses the confidential information to trade in shares of publicly held corporations.  Money-Laundering: Money Laundering means the concealment of origin of illegally obtained money.  Tax fraud: Tax fraud means evading tax by providing wrong information in tax forms or illegally transferring property in order to avoid tax. White Collar Crimes in India

 White Collar Crimes are rapidly increasing in our country with the advancement of commerce and technology. The recent developments in the technology have given new dimensions to computer related crimes known as cyber crimes. As such, the white collar crimes are increasing with the development of new websites. The areas affected by these crimes are banking and financial institutions, industry, business etc.

 Thus crime is an act or omission which constitutes an offence and is punishable under the law. As the white collar crimes are increasing on daily basis, it injures the society on a large scale because the laws are not properly administered and therefore there is a need to curb the factors that are helping in the commission of such crimes. Causes of White-Collar Crime The general perception is that the white collar crimes are committed because of greed or economic instability. But these crimes are also committed because of situational pressure or the inherent characteristic of getting more than others. However, there are various reasons for white collar crimes.

Not really a crime: Some offenders convince themselves that the actions performed by them are not crimes as the acts involved does not resemble street crimes.  Not realizable: Some people justify themselves in committing crimes as they feel that the government regulations do not understand the practical problems of competing in the free enterprise system.

 Lack of awareness: One of the main reason of white collar crime is the lack of awareness of people. The nature of the crime is different from the traditional crimes and people rarely understand it though they are the worst victims of crime.  Greed: Greed is another motivation of the commission of crime. Some people think that others are also violating the laws and so it is not bad if they will do the same.  Necessity: Necessity is another factor of committing crimes. People commit white collar crimes in order to satisfy their ego or support their family. Laws relating to White Collar Crimes

The government of India has introduced various regulatory legislations, the breach of which will amount to white-collar criminality. Some of these legislations are Essential Commodities Act 1955, the Industrial (Development and Regulation) Act, 1951.,The Import and Exports (Control) Act, 1947, the Foreign Exchange (Regulation) Act, 1974, Companies Act, 1956, Prevention of Money Laundering Act, 2002. The Indian Penal Code contains provisions to check crimes such as Bank Fraud, Insurance fraud, credit card fraud etc. In case of money laundering several steps have been taken by the government of India to tackle this problem. The Reserve Bank of India has issued directions to be strictly followed by the banks under KYC (Know Your Customer) guidelines. The banks and financial institutions are required to maintain the records of transactions for a period of ten years. In order to tackle with computer-related crimes, Information Technology Act, 2000 has been enacted to provide legal recognition to the authentication of information exchanged in respect of commercial transactions. Section 43 and 44 of Information Technology Act prescribes the penalty for the following offences:      

Unauthorised copying of an extract from any data. Unauthorised access and downloading files. Introduction of viruses or malicious programmes. Damage to computer system or computer network. Denial of access to an authorised person to a computer system. Providing assistance to any person to facilitate unauthorised access to a computer.

Section 43 and 44 of Information Technology Act prescribes the penalty for the following offences:

Unauthorised copying of an extract from any data. Unauthorised access and downloading files. Introduction of viruses or malicious programmes. Damage to computer system or computer network. Denial of access to an authorised person to a computer system. Providing assistance to any person to facilitate unauthorised access to a computer.  There are some measures to deal with white-collar crimes. Some of them are, creating public awareness of crimes through media or press and other audio-visual aids and legal literacy programmes. Special tribunals should be constituted with power to sentence the offenders for at least 5 years and conviction should result in heavy fines rather than arrest and detention of criminals. Unless the people will strongly detest such crimes, it is not possible to control this growing menace.

     

Conclusion It is clear that due to advancement of science and technology newer form of criminality known as white-collar crime has arisen. The term “white-collar crime” has not been defined in the code. But the dimensions of white-collar crime are so wide that after analysing the provisions of Indian Penal Code 1860, we may conclude that certain offence under Indian Penal Code is closely linked with white collar crimes such as bribery, corruption and adulteration of food, forgery etc. The provisions of Indian Penal Code dealing with white-collar crimes should be amended to enhance punishment particularly fine in tune with changed socioeconomic conditions. The special Acts dealing with white collar crimes and the provisions of Indian Penal Code should be harmoniously interpreted to control the problem of white-collar crimes.

Q-2) Definewhi t ecol l arcr i meswi t hi t ski nds.Expl ai nt he di fficul t i esf ort heenf or cementofant i whi t ecol l arcr i me l egi sl at i ons st Ans)Definewhi t ecol l arcr i meswi t hi t ski nds: -Ref erQ1 1 2 pages

Q-3) Ans)

The Prevention of Corruption Act, 1988 (No. 49 of 1988) is an Act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India This Act may be called the Prevention of Corruption Act, 1988 The Prevention of Corruption Act, 1988 (henceforth referred to as PCA) came into force on 9th September, 1988 It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India outside India. A. Important Definitions: (1) “Public duty” means a duty in the discharge of which the State, the public or the community at large has an interest. Explanation.—In this clause “State” includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act. (2) Public Servant:

It is unique term in Anti-corruption law, being the deciding factor at the

threshold, of one's liability, depending on his being public servant. The term 'Public Servant' was not

defined under the PCA, 1947 and the Act adopted the definition of the term under sec. 21 of the Indian Penal Code. The PCA of 1988 provides a wider definition in the Act itself under clause (c) of sec.2

(3) “Election” means any election, by whatever means held under any law for the purpose of selecting members of Parliament or of any Legislature, local authority or other public authority; The following genres of persons fall within the ambit of 'public servant': a) Any person who is paid by the government or local authority or remunerated by way of fees or commission for the performance of or is in the service of a corporation established by or under a Central, Provincial or State Act, or an authority or body owned or controlled or aided by the Government company as defined in the Companies Act, 1956. b) Any Judge or any person authorized by a court of justice to perform any duty, in connection with the administration of justice or any arbitrator to whom any cause or matter has been referred for decision or report by a court of justice or report by a court of justice or by a competent public authority. c) Any person who holds an office result to which he is empowered to prepare, publish maintain or revise an electoral roll or to conduct an election or part of an election, or is authorized or required to perform any public duty. d) Any person who is the president, secretary or other office bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central or State Government or any authority or body owned, controlled or aided by Government or Government company as defined in Sec. 617 of the Companies Act, 1956. e) Any person who is a chairman, member or employee of any service commission or Board or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on their behalf. f) Any person who is the Vice-Chancellor or member of any governing body, professor, reader or lecturer of any University and any person whose services have been availed of by a University.

B] Power To Appoint Special Judges:

The Central and the State Government is empowered to appoint Special Judges by placing a Notification in the Official Gazette, to try the following offences: · Any offence punishable under this Act. · Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the Act. The qualification for the Special Judge is that he should be or should have been a Session Judge or an Additional Session Judge or Assistant Session Judge under the Code of Criminal Procedure, 1973. C] Case Trial By Special Judges:

Every offence mentioned in Section 3(1)shall be tried by the Special Judge for the area within which it was committed. When trying any case, a Special Judge may also try any offence other than what is specified in S. 3, which the accused may be, under Cr.P.C. be charged at the same trial. The Special Judge has to hold the trial of an offence on day-to-day basis. However, while complying with foretasted, it is to be seen that the Cr.P.C. is not bifurcated. D] Power And Functions Of Special Judges:

The following are the powers of the Special Judge: He may take cognizance of the offences without the accussed being commissioned to him for trial. In trying the accussed persons, shall follow the procedure prescribed by the Cr.P.C. for the trial of warrant cases by Magistrate. he may with a view to obtain the evidence of any person supposed to have been directly or indirectly concered in or privy to an offence, tender pardon to such person provided that he would make full and true disclosure of the whole circumstances within his knowledge or in respect to any person related to the offence. Except as for S. 2(1), the provisions of Cr.P.C. shall apply to the proceedings before a Special Judge. Hence, the court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor. The provisions of secs. 326 and 475of the Cr.P.C. shall apply to the proceedings before a Special Judge and for purpose of the said provisions, a Special Judge shall be deemed to be a magistrate."

E] Offences And Penalties:

The following are the offences under the PCA along with their punishments:Taking gratification other than legal remuneration in respect of an official act, and if the public servant is found guilty shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine. · Taking gratification in order to influence public servant, by corrupt or illegal means, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. · Taking gratification, for exercise of personal influence with public servant shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. · Abetment by public servant of offences defined in Section 8 or 9, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine. · Public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine. · Punishment for abetment of offences defined in Section 7 or 11 shall be punishable with imprisonment for a term which shall be not less that six months but which may extend to five years and shall also be liable to fine. · Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to 7 years and shall also be liable to fine. Habitual committing of offence under Section 8, 9 and 12 shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to 7 years and shall also be liable to fine. F] Matters To Be Taken Into Consideration For Fixing Fine:

Where a sentence of fine is imposed under sec. 13(2) and sec. 14, the court while fixing the amount for the same shall consider the amount or te value of the property which the accused has obtained by committing the offence or where the

conviction is for an offence referred to in sec. 13(1)(e), the pecuniary resource or property for which the accused is unable to account satisfactorily. G. Investigation:

Investigation shall be done by a police officer not below the rank of: a] In case of Delhi, of an Inspector of Police. b] In metropolitan areas, of an Assistant Commissioner of Police. c] Elsewhere, of a Deputy Superintendent of Police or an officer of equivalent rank shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a magistrate of first class, or make any arrest therefore without a warrant. If a police officer no below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may investigate such offence without the order of a Metropolitan Magistrate or Magistrate of First class or make arrest therefor without a warrant.

Q-4) Explain the appointment, powers and procedure of Lokayukta under the Karnataka Lokayukta Act, 1984 Ans)

Came into force w.e.f from 15-01-1986

The Administrative Reforms Commission had recommended the setting up of the institution of Lokayukta for the purpose of appointment of Lokayukta at the state's level, to improve the standards of public administration, by looking into complaints against the administrative actions, including cases of corruption, favoritism and official indiscipline in administrative machinery.

The public servants who are covered by the Act include :Chief Minister; all other Ministers and Members of the State Legislature; all officers of the State Government; Chairman, Vice Chairman of local authorities, Statutory bodies or Corporations established by or under any law of the State Legislature, including Co-operative Societies;  Persons in the service of Local Authorities, Corporations owned or controlled by the State Government, a company in which not less than 50% of the shares are held by the State Government, Societies registered under the State Registration Act, Co-operative Societies and Universities established by or under any law of the Legislature.

   

Preamble An act to make provision for the appointment and functions of certain authorities for making enquiries into administrative action relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution, taken by or on behalf of the Government of Karnataka or certain public authorities in the State of Karnataka (including any omission or commissions in connection with or arising out of such action) in certain cases and for matters connected therewith or ancillary thereto. Definitions :-

In this Act, unless the context otherwise requires,1. “Action” means administrative action taken by way of decision, recommendation or finding or in any other manner and includes wilful failure or omission to act and all other expressions relating to such action shall be construed accordingly; 2. “Allegation” in relation to a public servant includes any affirmation that such public servanta. has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person; b. was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; c. is guilty of corruption, favoritism, nepotism or lack of integrity in his capacity as such public servant; Appointment of Lokayukta and Upalokayukta

1. The purpose of conducting investigations and enquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known

as the Lokayukta and one or more persons to be known as the Upalokayukta or Upalokayuktas. 2. a. A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. b. A person to be appointed as an Upalokayukta shall be a person who has held the office of the Judge...