WHITE COLLAR CRIME: The Financial Embezzlement (Extracts)

Updated: Dec 18, 2021


by Akshata Prashant Sawant, LLB


Introduction

Every man is a social animal”, said the greatest political thinker in the world, Aristotle. This is a fundamental concept behind the emergence of societies, and each society has its own set of standards. One of them is a crime, which is defined by ideals. Experiences and behavior patterns of people that have brought happiness are highly valued, whereas those who have caused collective displeasure are critically valued.


Thus, the law establishes certain norms of behavior that are to be followed by all the members of society. Society endorses this behavior, and any divergence from the societal norms, religious beliefs, and taboos, public opinions, and laws on society all embody sanctions. It is up to society to decide which behavior should be supported and which should be discouraged. Even a state is entirely made of people with heavenly attributes would not be immune to transgressions of society’s norms.

Crime, on the other hand, has preferred all societies, from traditional to modern way. Emile Durkheim while describing the inevitability and universality of crime, described as “There is no society that is not confronted with the problem of criminality. Its form changes; the acts thus characterized are not the same everywhere; but, everywhere and always, there have been men who have behaved in such a way as to draw upon themselves penal repression.”


However, although the number of crimes steadily increased, they account for only a small percentage of all criminal offenses on the books today.


A type of crime is known as, “White-collar crime (WCC)”, which has emerged as a result of industrialization and urbanization. WCC are relatively new offenses, having emerged along with the state’s various regulations of various social and economic domains expanded, including employment, commerce, taxation, public health, workplace and road safety, and so on.


The Aim and Objective of the study

The aim of this research is to suggest ways to control WCCs, so that smooth functioning of the society can be ensured. India is a developing country; and for its socio-economic development smooth functioning of the society is an indispensable condition. The objectives of the study are as follows:

  • To study the concept and nature of WCC in detail.

  • To analyze causes responsible for WCC.

  • To understand perception of the people.

  • To suggest some remedial measures to prevent WCCs.

Nature of WCC

The most important feature of crime is that it is an action that the state prohibits as it causes harm to the state and to which the state may retaliate with punishment. WCC shows one of the two abstract requirements. Crime is defined as a socially destructive act, as well as a violation of a legal provision that carries a penalty. These types of offenses are decided by civil or administrative entities that are less concerned with following a strict and deterring process than a criminal court.


The victims of the WCC are classified into two groups first, a small number of people who work in the same or similar occupations as the offender, and second, the broader public, either as consumers or as members of the social institution who are harmed by law infractions.


WCC are also subject to sanctions and punishments, though not in the same way as criminal offenses. WCC is considered a crime because both elements, namely social harm and punishment, are present. Many of the rules of proof and evidence used in WCC proceedings differ from those used in criminal court.


According to H. Mannheim, the claim that only those defenders who have been found guilty by the courts are criminals is not only sociologically incorrect but also legally incorrect, because it conflates substantive and procedural law issues. A person is a criminal under substantive criminal law if he or she has violated any of its provisions, regardless of whether or not the rules of criminal procedure have declared him guilty.


In fact, the public’s outcry against WCC is making people more eager to back the police in their fight against the crime. The lack of social condemnation, as well as offenders' capacity to preserve social prestige despite breaking the law, are all critical areas for investigation, and the fear of negative consequences has prompted research. With the advancement of technology, science, and economics, WCC will require an increasing amount of time and attention to research and study on criminal behavior.


To maintain law and order, a peaceful society, and the general public's interest, it is necessary to consider individual, social, and national harm caused by a person or any authorized person who violates regulatory laws; those who violate the laws must be punished by a special court established under special laws. It is not required to remember that everybody who is sentenced to prison by a criminal court is a criminal. Anyone who breaks the special laws and is responsible for an illegal act is an offender who can be prosecuted in either a criminal or a special court.


Meaning and definition of WCC

WCC, without a question, is a crime against society, but it is distinct from other types of crimes. WCC differs in that, the victim is not an individual; rather, society is the victim. The term "WCC" was first used in criminology in 1941 by Sutherland, who defined it as "crime committed by persons of respectability and high social status in the course of their occupation." A white-collar criminal is a member of the upper socioeconomic class who breaks the law while performing his professional duties. As a result, misrepresentation through deceptive advertising, violation of patents, copyrights, and trademarks, among other things, is regularly used by manufacturers, industrialists, and other well-known individuals in the course of their business to make large profits. Other examples of WCC include the production of fictitious balance sheets and profit and loss accounts, the passing of commodities, and the hiding of a fault in an item for sale, among others.


Sutherland continued, "A WCC is more dangerous to society than ordinary crimes because the financial loss from burglaries, robberies, larcenies, and other crimes is greater than the financial loss from ordinary crimes.” The most dismissive aspect of WCC is that there is no effective program for enforcing criminal law against them, and the influential persons involved in these crimes can resist enforcement of criminal law.


These WCC are designed in such a way that the harm or damage they produce is so broadly dispersed across society that their significance in terms of individual victims is essentially minor. It is likely for this reason that these crimes have received little attention in recent years, as they do not bring with them a loss of social status for the criminal, even if he is caught. There's another reason why white-collar thief get away with it. In cases of deception, concealment, or fraud, the court typically relies on the caveat emptor principle, which states that the purchaser must enter into a transaction with open eyes and guard himself against ordinary vendor dishonesty. As a result of the court's stance, there was a massive increase in WCC in the United States during the Great Depression of the 1930s. Perhaps this is why, in 1933, American President Roosenelt insisted on the notion of caveat emptor being removed from the adjudication of WCC cases.


It must be stated unequivocally that white-collar criminality grows due to public apathy. The reason for the public's indifference is that, first, such criminals work within the literal letter of the law, preying on the victims' trustworthiness, and second, the legal fights involved stretch on for years in the courts, obscuring the gravity of the crime. Apart from that, the impact of WCC in the community is so spread that individual victims are only minimally harmed, and hence conveniently forget about it.


There's one more to be considered in the context of WCC. Members of the community may, voluntarily or unwillingly, contribute to the commission of numerous WCC. For example, illicit payment to public servants to expedite work, black marketing during times of scarcity, evasive price violations, rent ceiling violations, and so on are some of the common examples of victims of crime being held responsible for their involvement in white-collar criminality. Such crimes cannot be perpetrated unless consumers demand illicit favors and are actively participating in the transaction.


Types of WCC

1. BANK FRAUDS


Fraud is a crime committed with the intent of deceiving others and gaining unfair benefits. Bank frauds are a type of financial con. It's made through deception on the part of shady businesses. It also entails dealing with negotiable items such as bouncing checks, securities, and bank deposits, among other things. Because banks and governments have a trusting connection, bank fraud affects the broader population. It is both the most common form of WCC and a corporate crime. This has an impact on both the general populace and the government of the country. Despite having a robust regulatory framework, the financial services industry has emerged as the most vulnerable to fraud. Misuse of technology in the banking industry involves overpayments to vendors or a self-bank account, disclosing potentially private information, and using the company's technological resources for unlawful activities, such as competing commercial relationships. Furthermore, delivering services on mobile and social media platforms with a weak understanding of security standards poses a significant risk to both clients and financial institutions. Given the shortcomings in India's law enforcement system for investigating and prosecuting fraudsters, as well as rising social pressure to make rich quick, fraud is a continual threat to enterprises. Because of the many frauds that have come to light over the last two years, international investors and local businesses have lost faith in the country.

2. TAX EVASION


In India, the collusion of tax rules has offered ample opportunities for tax evasion. Evasion is more likely among powerful individuals such as dealers, businessmen, lawyers, doctors, engineers, and contractors. The biggest challenge that the system faces is determining how much of the money gets into circulation as black money. Despite periodic changes in the country's tax laws, the threat of tax evasion persists, resulting in significant income losses for the government.


In R.K Garg V Union of India (1981) 133 ITR 239, the Supreme Court upheld the legality of the Special Bearer Bonds (Immunity and Exemption) Act, 1981. Observed that the Act was not designed to encourage tax evasion in the future or to excuse past evasion, but rather to kick off a nationwide hunt for unreported riches by offering tiny incentives to those who declared their undeclared cash. The major goal was to find black money in order to avoid further income losses.


It should be noted that the problem of black money generation (i.e., unaccounted money) and its spread is not new. The Indian government has devised voluntary disclosure systems to identify illicit money, which will be utilised for certain social goals. However, the results of these plans have not been positive. The main reason for the poor response to these schemes appears to be that tax payers do not want to be identified as having previously dodged the tax, and the risk of having their previous assessments reopened and facing roving investigations also deters them from using them.


It's important to highlight that "tax evasion" rather than "tax avoidance" constitutes a criminal in this circumstance. Despite the fact that these concepts appear to be interchangeable, there is a significant difference between them. While the former refers to failing to pay taxes that are due, the latter refers to organising one's income in such a way that it does not incur tax burden properly and legitimately.


The Essential Commodities Act, 1955, the Industrial (Development and Regulation) Act,1951, the Import and Export (Control) Act, 1947, the Foreign Exchange (Regulation) Act, 1947, and the Companies Act 1956, as amended from time to time, are examples of regulatory legislations whose violations result in white collar criminality. The vast majority of white-collar offences, on the other hand, follow the word and spirit of the law and hence do not warrant judicial action.


3. FOOD / DRUG ADULTERATION


Innocent people's health is irreversibly harmed by adulteration in food and pharmaceuticals. In India, this heinous practise is on the rise. According to a survey published by the Ministry of Health, between 25% and 70% of the food consumed in the country is adulterated or polluted. Because of the manufacturers' greed, the existing laws are ineffective in preventing food and medicine adulteration. Due to faulty public analysis reports, the precautions under the Food Adulteration Prevention Act have failed. Delay in examining gathered samples, as well as failure to follow proper sample collection procedures.


4. HOARDING, BLACK MARKETING AND ADULTERATION


Hoarding, profiteering, and black marketing are examples of WCC that are frequent in trade and business. For the purpose of big gains, foreign exchange controls and import and export laws are regularly broken. Aside from that, adulteration of foodstuffs, candies, and pharmaceuticals, which poses an irreversible threat to public health, is a widespread WCC in India.


Monopolies and Trade Restrictive Practices (Amendment) Act, 1992; Consumer Protection Act, 1986; Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), the Indian Law Commission has proposed harsh penalties for such criminals. According to the Commission, the lengthy prosecution procedure required in such instances undermines the cause of justice and frequently ends in unwarranted acquittals owing to a poor analyst report, a delay in the inspection of samples, or a lack of legal competence, among other things.


One of the most common kinds of WCC is the hoarding and black selling of critical goods and commodities. Traders and business communities in India regularly engage in this practise. The major factor, according to Sutherland, is "the fast rate of societal change and the technological complexities of commercial affairs that lead to immoral business practises."


5. WCCs IN EDUCATIONAL INSTITUTIONS


The privately-operated educational institutions in this nation are another area where white collar criminals operate with impunity. By providing fraudulent and false information about their organisations, the governing bodies of these institutions are able to acquire huge sums of money in the form of government grants or financial help. Teachers and other employees in these schools are paid considerably less than what they sign for, leaving a large margin for the management to take large sums of money in this unlawful manner. Because they are afraid of losing their jobs, the affected instructors can scarcely afford to protest to higher-ups about the exploitation. As a result, they are forced to make a compromise with the circumstance. Despite the government's introduction of a treasury-payments programme for private-school instructors, the problem remains in one form or another.


Apart from that, phoney and false enrolments of students who live far away from these schools' locations is another source of illicit income for them. They collect large sums of money from such needy students in the form of contributions or capitation fees. In these schools, there are even rackets that get students to sit in various examinations on the basis of altered eligibility certificates or domicile certificates in exchange for large sums of money. These dishonest and unethical methods have severely harmed India's educational standards, resulting in irreversible damage to the younger generation.


Private institutions play a nastier role, as they are less concerned with delivering education and instead focus on generating money at the expense of children's futures. In these institutions, rackets exist to get students to appear in exams on the basis of falsified eligibility certificates, lowering the level of education in India. When it comes to government institutions, instructors and employees are frequently discovered to be involved in unethical acts, as they can scarcely make a living on the government's little wage. Teachers frequently harass pupils for paying for private tutoring, even threatening them with destroying their future if they refuse.


These privately managed educational institutions, as well as those providing professional education, frequently enjoy the favour of powerful politicians, and many of them are even owned by them. Many of these schools are almost non-existent and operate as commercial businesses, allowing students to obtain degrees in exchange for large quantities of money, in flagrant violation of government laws, regulations, and conventions. Because the scope of white-collar criminality has had a negative impact on educational standards in most states, the problem must be addressed by strict statutory measures.


6. CYBER CRIMES


The crime of computer networks is known as cybercrime. With the fast progress of technology, there has been a significant rise in technology-related crime. It is done against the victim, either directly or indirectly, in order to harm his physical or mental image via the use of the internet and other technological resources. Cybercrime is considered a danger to a country's security and a person's financial well-being. The Information Technology Act of 2000 is India's only statute dealing with cybercrime.


7. HAWALA TRADING


Hawala is a method of transferring funds without physically moving the funds. Hawala is an alternative payment method that operates outside of traditional financial institutions. Because the system is heavily reliant on faith and the book balance of hawala agents, transactions between hawala agents without promissory notes are possible. Hawala is an alternate method of transmitting cash that began in Indian Sub-Continent region in the 8th century and is now widely utilized. Money transfers to hawala are done through a network of hawala dealers, as opposed to the usual manner via bank transfers. Hawala facilitates money transfer between underdeveloped nations when conventional banking is too expensive or difficult to get.


8. PONZI SCHEME


A Ponzi scheme is a deceptive financial plan that offers investors large returns with minimal risk. The Ponzi scheme generates profits for early investors by attracting new investors. This is similar to a pyramid scam in that both rely on cash from new investors to pay for the previous backers. Ponzi scheme companies are all about recruiting new consumers to invest in their schemes. The programs are designed to ensure that elderly investors continue to profit from a continuous stream of fresh money. When the flow runs out, the plan falls apart.


Reasons for Growth of WCC.

People's perceptions of WCC are that they are conducted only out of greed, competitiveness, and a lack of economic instability. Although the aforementioned variables are the primary causes of the increase in these crimes in India, there are a number of additional aspects as well.


1 COMPETITION


The major cure for market competition is the survival of the fittest. It means that in a fight for survival, there will always be a competition among individuals, and only the best who can adapt to the circumstances will live. WCC are frequently the result of the same motivation. They are willing to perpetrate crimes such as forgery, bribery, and fraud in order to win. Professionals are frequently rewarded handsomely and promoted inside organizations in exchange for short-term exceptional earnings. Some people are willing to go to extremes to improve their performance in competition with others, even if it means breaking the law. The number of people participatindg in such crimes is lower, yet the damages sustained are significant.


2 TECHNOLOGY


WCC has become a global problem as technology has advanced, and it is on the rise in India as well. The development of personal computers and smartphones has exacerbated the situation, since their use not only leads to the production of many more ideas, but also provides open possibilities for criminals to conduct these crimes from anywhere in the globe.


3 RATIONALISATION


People struggle to define and comprehend these crimes since their nature differs from that of regular crimes. This leads to criminals committing crimes and then convincing themselves that their acts were not criminal in nature. Insider trading is viewed as a victimless crime by many stock traders who do not perceive who is being defrauded. Bribing clients makes salespeople feel like they're doing their job since they're putting the transaction together without hurting anyone.


4 WORK ENVIRONMENT


Individuals' conduct can be elicited by both excellent and negative work settings. When presented with ethical choices, environmental indications such as poorly constructed employment incentives or management nonchalance toward ethics might entice individuals to behave quite differently. As a result, some people succumb to such temptations and compromise their ethical principles, resulting in illegal behavior. It is uncommon to get a direct command to breach the law.


5 ACCESS TO INFORMATION


Individuals with vital sensitive information on their cellphones and computers, such as bank account numbers, investments, passwords, and so on, may be tempted to exploit the data for their own gain. Rich people/organizations such as banks, casinos, and financial businesses, where large sums of money are exchanged on a regular basis, may be the target of such white-collar criminals. As a result, hackers can obtain access credentials, retina pictures, and other data that can readily deceive biometric systems and be used for personal benefit.


6 GREED


“Human beings are hungry by nature”, as the father of modern political theory, Machiavelli, accurately stated. He also stated that a guy may forget his father's death more quickly than the loss of his inheritance. The same is true for anyone planning to engage in any sort of WCC. Why, if a man is financially comfortable and has a good social position, would he commit such crimes? Greed is a sin that can cause a person to strive for unattainable goals.


Effects of WCC

Effects on the company


WCC have enormous negative consequences for a firm. Losses sustained by the firm as a result of one deviant employee acting with or without the knowledge of an outsider can have a direct and exponential influence on the company's entire profitability. Furthermore, if the information becomes public, it has the potential to ruin the company's reputation in the long run, which is impossible to assess, and finally cause it to close.


Effect on the customer


Everyone likes to do business with a firm that offers a pleasant working environment.


Customers don't want to get in problems with the law. As a result, when a firm is involved in any type of criminal inquiry or issue, it causes doubt in the minds of customers. Customers may be cautious to contact with the firm for fear of putting themselves into unneeded difficulty. As a result, people begin exploring for other available choices on the market.


Effect on the society


WCC has a significant financial impact on society. When a firm closes or is under investigation for a criminal conduct, it results in employment losses at all levels, a decline in stock prices depleting shareholders' money, and a loss of faith in the financial system. There are several examples from all major corporations that have resulted in the aforementioned.


WCC general Statistics

Recent WCC cases have received a lot of attention. They lead to layoffs, wage reductions, and other disasters. Due to variables such as class and ethnicity, many business crimes go unpunished or receive a lower sentence. Following are notable about WCCs:


  1. With advancements in technology and a growing reliance on mobile devices, there has been a noticeable increase in WCC in general.

  2. Despite the fact that white-collar offences are on the rise, this has resulted in fewer prosecutions.

  3. The epidemic resulted in a spike in WCC, which can no longer be ignored.

  4. Millions of counterfeit N95 masks were sold in 2021, making it one of the greatest counterfeit scams in history. People are less inclined to fact-check in a crisis. Millions of bogus masks were sold to hospitals, doctors, and government organizations in this manner.

  5. The criminal justice system had to be shut down as a result of COVID-19. In the year 2020, financial fraud detection faced several challenges.

  6. By 2036, the anti-money laundering industry is expected to be worth $2.38 billion. Anti-money laundering measures include enacting a set of regulations, processes, and laws with the goal of halting the process. Such laws have serious ramifications.


CONCLUSION

WCC have two startling characteristics first, they are nonviolent crimes, despite the perpetrators' propensity to acquire power or a sense of entitlement, and second, they are perpetrated by individuals in positions of higher authority. However, similar crimes are also perpetrated by low-paid underlings, even if the mastermind behind the crime is a wealthy individual with a higher social position in his profession. WCC are frequently perpetrated as a result of peer pressure or as a result of the company's culture. As our civilization progresses toward modernity and the globe gains new technical advancements, the rate of crime rises at a quicker pace. The increase in WCC, in particular, has been tremendous. These crimes are done everywhere, from the medical profession to educational institutions. Investigating officers need training in order to learn how to close down on these offenders; otherwise, tracking them is a tough, time-consuming, and exhausting task. Because WCC are perpetrated by persons with greater social status in their occupation, the work of the investigating officials should be examined to guarantee openness. The government must enact rules that are stringent enough to prevent such crimes from being committed. And the system should be set up such that not only are there laws that penalize the accused harshly, but that the majority of cases are resolved quickly. Those will lose trust in the system if something is not done, because these crimes are perpetrated by people who should be role models for society.


Education on WCC also has a role to play. The majority of WCC go undetected. So, if the media becomes more active in publishing frauds and scams at higher levels and revealing how people in higher positions in a company use their power arbitrarily, as well as making efforts to raise public awareness about WCC and encourage people to avoid corrupt practices, this will undoubtedly help to reduce the rate at which WCC are committed.

To be continued...


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Bibliography

Books


  • Avtar Singh, Company Law (2018), 17th Edition, Eastern Book Company, New Delhi.

  • Ratanlal & Dhirajlal, The Indian Penal Code (2013), 34th Edition, Lexis Nexis, Gurgaon, Haryana.

  • C.R. Kothari, Research Methodology Methods and Techniques (2004), 2nd Edition, New Age International (P) Limited, Publishers, New Delhi.

Articles


  • “WCC A Legal Challenge on Indian Corporate System” by Dr. Gyanendra Kumar Sahu.

  • “Introduction and Overview of WCC; A Systems Perspective” by Brian K Payne.

  • “WCC Survey” by Indian National Bar Association.

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