To Bell the Cat

ABSTRACT

The  author through this paper submission is intending to chip in the thought process and intricacies  of the much anticipated and proposed ‘Fraud Act’ to curb the modern white collar crimes sprouting in the society. 

1.The sky high powers of the executive engrossed with the wisdom of the legislature and the magnanimity of judicial interpretations has often succumbed, suffered, scoffed, struggled to engrave and embalm within its finger fold the proactive and protective mechanism which has been made a Cinderella affair to deal and tackle menaces arising out of popularly titled white collar crimes, that have developed as a malignancy to constrict and choke the financial growth and economical development of our country.

2. The recent trend in this scenario shows, that people are lured with plump returns in the investments they make, which are often dishonoured and rendered nugatory to be enforced by the deception played by the promisor who by their diabolic attitude skim away from the liability fixed under the penal statutes for want of prosecution, lack of thorough and improved judicial process to collect , receive and analyze the evidence, absence of effective remedial measures to redress the concern and to redeem the loss suffered by the innocent investors at the vicious plot hatched by the devils of financial dereliction and deprivation.

3. The possible criticism, that could be deciphered is that there are too many specific fraud offences, agglutinized to the consequence it shall attract rendering it impossible to churn of the wheat from the chaff the aspects relating to identity of the offence to be charged and thus in totality rendering the chances of conviction a puerile affair.

4.The system has been smothered by  complexity in the trauma of affairs paving way for the sinners of humanity who take a serendipitous gain through skulduggery tactics to manage  to go scot free for a song as a sulky perignator on a perennial basis leading to depletion of the conundrums of financial security  causing serious havoc and cacophony in the  financial stability of our economy. The cat and mouse game should be done away with the punctilious attitude and precision displayed by an eagle that flies high but captures the surface below in a filmed manner with undisputed clarity and vision to achieve the objective that has been focussed.

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5. A currorial attitude in this regard, to tide the waves of ambiguity would be in the pedestal of taking a lover’s stroll on a mine field. What is prudent and expected is a rhythmic and seasonal analysis of the modifications in the texture and composure of the society involving modulations in behavioural aspects, life style, and quests for newer ventures in a cryptographic manner on a timely and orderly basis in surge with the advancement of perennial happenings across the globe.

6. The roses are red and the violets are blue so the sagacious responsibility on the state is by not done seldom by winnowing the legislative enactments with proper prudence and diligence with a vision of common benefit to the society at large but also ensuring its effective implementation and enforcements on a concrete foundation. The Herculaneous task vested on the state in framing the proposed legislation can be tracked to the following aspects

7. Identify the offence:-The offence should be broadly defined and categorised under the new act. It shouldn’t bear the ghost of its principles derived from the erstwhile legislations (i.e. Indian Penal Code, Indian Contract Act.

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 etc). The following would be the criteria to attract an offence under the new law

• Offence committed in breach of duty (ii) Offence committed by deception for an unlawful gain (iii) Offence by misrepresentation (iv) Offence committed by failure to disclose despite having a duty to do so.

1. Nature of punishment: Punishment should be of deterrent nature involving penal sanction followed by compensation to four times  the amount deceived in grave and unexceptional  It shall not be however less than twice the amount invested. The amount thus recovered should be repatriated to the hands of the victim as a compensatory measure.
2. Impart advanced training to Judicial officers &others alike:. The interpreters, learners, practitioners should be made aware, enlightened in crystal clear magnitude as to the eventualities that led to the enactment of the new legislation, its objectives and its implementative aspects in the widest and simplest manner in similarity to the seepage of tea dust from tea bag to the inducements of a novel leading judicial process to equip itself to surge ahead and embalm the legislative wisdom in its true vigour and substance.

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• Modern techniques to collect evidence :The developments achieved in the field of science, technology and forensics should be utilized hand in hand to aid the judicial process of collecting, receiving and analyzing evidence. This would be greatly helpful in tackling offences occurring in trans border crimes, money squandering etc.
• Restitution re integra :The new law should provide for a mandatory provision for restitution of the assets to the rightful owner as an in appropriate measure to redress their grievance on monetary level. However this should not turn out to be a cake walk for the trial of offenders of financial deprivation to gulp away like the antelopes of alps to whisk away from the clutches of law in the guise of settlement of disputes.
• Creating awareness through education process:As you sow, so shall you reap goes the biblical saying. The attitude of people to tame themselves to be in the plat form of Alladin in the Arabian Nights and to plunder riches on a platter is an alarming and disheartening behavioural malignancy that has started maligning the society slowly by slowly. The behavioural attitude that being rich by any means should be snubbed at the budding stage in the younger generation by infusing and imbibing  their thoughts and actions with educational process aimed at establishing our true and hereditary values such as ‘Truth, Dharma and Justice’. The new act should be widely circulated and taught as a part of the curriculum prescribed under the various streams. A thorough study ought to be taken by the team of experts from prestigious institutions say ‘NIMHANS’ for example to study the behavioural deviations and dynamicity of life patterns of the society and to carve out remedial measures to channelize the same in a prudent and diligent manner.
• The nature of evidence:The discharge of burden of proof must begin from the perspective of the accused whose conduct is alleged to be dishonest and his intention to make a gain for himself, or cause a loss or risk of loss to another. It is however pertinent to note that the amount of actual gain nor loss doesn’t need to be proved for sustaining the prosecution against the accused. The judicial wisdom however should not be minisculed to the habit of criminalising lying and ignoring  the standards of morality and practises prevailing in the society.
• Establishment of a fraud advisory panel: To create awareness of the immense social and economic damage caused by fraud and to lend a helping hand to both public and private sector to retaliate against such damages.
• These are some of the aspects that propped up during the preparation of this paper. The list is not exhaustive but a small attempt to cross the shores of legal wisdom. To wind up, Let us bow with utmost Honorificabilitudinita to the words of renowned American thinker and philosopher James Freeman Clarke:-

“A politician thinks of the next election. A statesman, of the next generation”

Acknowledgements

A)’Interview with Ros wright’ dated July 2007.

B) ‘Report on post legislative assessment of the Fraud Act 2006’,Memorandum to the Justice Selection Committee, Presented to the Parliament of U.K by the Lord Chancellor and Secretary of State for Justice by command of Her Majesty, dated June 2012.

C)Article published in Amicus Curiae Journal of the Society for Advanced Legal Studies, Issue 75, Autumn 2008.

D)Fraud Act 2006, United Kingdom.

Nikhil Shankar is an Advocate at High Court of Kerala.  email.nikhilsankar@gmail.com