INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Pranav Tomar and Puneet Dhanoa, AZB & Partners
• In State of Gujarat v Mansukhbhai Kanjib - hai Shah, reported at (2020) 20 SCC 360, the Supreme Court held that an official of a deemed university performs the same public duty as that of a government university, and therefore the trustee of the deemed univer- sity is a public servant for the purpose of the PCA. • In Sanjay Kumar Agarwal v CBI, reported at 2023 SCC OnLine Jhar 394, the Jharkhand High Court interpreted the above pronounce - ments and expanded the definition of public servant to include resolution professionals appointed under the Insolvency and Bank - ruptcy Code, 2016 and governed by the Insolvency and Bankruptcy Board of India. The pronouncement has been challenged before the Supreme Court and is presently sub judice. Employees of State-controlled companies stand covered under the definition of public servant, which includes any person in service of a cor - poration established under a central or State- controlled government or even aided by the government or a government company. There is no provision or legislation under Indian anti-bribery laws that criminalises bribery of for - eign public officials. While India did attempt to legislate on this issue by introducing a bill titled “The Prevention of Bribery of Foreign Public Offi - cials and Officials of Public International Organi - sations Bill, 2011”, this lapsed and was never enacted. Bribery by and between private parties is not a punishable offence under the PCA. However, India’s general law enumerating offences and prescribing punishment (the Indian Penal Code, 1860) (IPC) makes it punishable if, on the facts of a particular case, a company has entrusted cer -
tain property to an employee, who, in exchange for a bribe, misappropriated that property – here, an offence of criminal breach of trust will be established. Further, if an employee accepted a bribe and knowingly induced a company to enter into a loss-causing transaction, such act would fall within the purview of cheating. 2.2 Influence-Peddling For the first time, the Amendment Act expanded the scope of the PCA to target bribe-givers, both directly and indirectly. This is provided under Section 7A of the PCA. Therefore, any person who is otherwise permitted to liaise with any government authority can be liable for punish - ment under the PCA if such person has been found offering, or attempting to offer, any undue advantage as motive or reward in order to induce a public servant, by exercising their influence over the public servant, to conduct their public duty in an improper or dishonest manner. Prior to the Amendment Act, these persons were prosecuted as abettors or by invoking the pro - vision of criminal conspiracy under the IPC. As previously stated, bribery, including influence- peddling of foreign public officials, is not cov - While the PCA does not impose any record- keeping obligations, the Companies Act, 2013 (the “Companies Act”) obligates a company to maintain its books of accounts for a period of up to eight preceding financial years. If an inquiry or investigation is pending against the compa - ny under the Companies Act, the company is required to maintain its books of accounts for a longer period. If the senior management of the company, including the managing director and the chief financial officer, or any person charged by the board, fails to comply with such obliga - ered under the PCA or elsewhere. 2.3 Financial Record-Keeping
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