INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Khushi Mittal, AZB & Partners
director or trustee. A criminal breach of trust is punish - able with imprisonment for up to five years, along with a fine, depending on the circumstances. Cheating Cheating occurs when a person is deceived fraudu - lently or dishonestly, which induces them to deliver property or to take any action they would not have otherwise taken. Cheating is punishable with impris - onment for up to three years, along with a fine. Forgery Forgery involves creating a false document or elec - tronic record with the intention of causing injury or committing fraud. This offence is punishable with imprisonment for a term of up to two years, extend - able to three years if the forgery is committed to harm the reputation of any party, and to seven years if the forgery is committed with the intent to cheat. Falsification of accounts If an officer, clerk, or servant of a company intention - ally destroys, alters, or falsifies the company’s books, papers, or accounts with the intent to defraud, they can be punished for falsification of accounts and face imprisonment for up to seven years, a fine, or both. Dishonest misappropriation of property This offence occurs when property belonging to another person is appropriated or converted for per - sonal use by the accused with dishonest intent. While punishment for this offence is imprisonment for up to two years, the BNS has for the first time mandated a minimum punishment of six months. Organised crime and economic offences Section 111 of the BNS, for the first time, has intro - duced the offence of organised crime, which means any continuing unlawful activity such as kidnapping, robbery, contract killing, cybercrimes, illegal traffick - ing of persons and goods, and other crimes by any person or group of persons to obtain direct or indirect material benefit, including financial benefits. Economic offences, which form part of organised crime, include unlawful activities such as a criminal breach of trust, forgery, counterfeiting, hawala trans- actions (which essentially mean a system to trans -
fer unaccounted income/cash outside the traditional banking system), and mass marketing fraud carried out to defraud banks, financial institutions or any other institution in order to obtain monetary benefit. Other Corporate Offences Corporate fraud and criminal liability are also addressed by other specialised legislation. For instance, SEBI regulations and FEMA deal with cor - porate offences involving violations of securities laws and foreign exchange regulations, which have been discussed previously. 3.2 Bribery, Influence Peddling and Related Offences In India, bribery of foreign public officials and brib - ery between private parties is not criminalised. The PCA provides the legal framework for corruption and bribery-related offences. Under the PCA, a “public servant” is broadly defined to include any individual who performs a public duty and is employed by a public, government, or local authority. This extends to employees of private insti - tutions if their functions involve discharging public duties, such as the chairperson of a private bank. Under the PCA, offering or giving any undue advan - tage to a public servant, whether directly or through an intermediary, with the intent to induce or reward that public servant for performing or improperly perform - ing a public duty constitutes a criminal offence. It is punishable by imprisonment for a period extending up to seven years, a fine, or both. Even intermediaries or facilitators who accept bribes with the purpose of influencing a public servant are held criminally liable and punishable with three to seven years of imprisonment. The definition of “public servant” under the BNS is broader than that under the PCA. Similarly, the BNSS has also introduced the concept of “deemed sanction” for the prosecution of judges and public servants. If the competent authority fails to provide a sanction within 120 days, such sanction will be automatically deemed to have been granted.
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