Regarding memorandum to be given to Home Ministry & Police Head Quarters of the Country as well as respective states including all IG, DM & SP before any FIR or Arrest of a Chartered Accountant.
Now days, it is seen very often trend for arresting CHARTERED ACCOUNTANTS’s in almost all cases involving financial fraud/embezzlement, misappropriation of siphoning of funds.
Documents are filled by CHARTERED ACCOUNTANTS in ordinary course of performing his professional duty & he has no reason to doubt documents produced before him. There is difference between Negligence and Fraud. Negligence does not involve criminal offence unless it is proved that it is deliberate action with an intention to deceive other person or act done to take undue advantage of the person/situation. The negligence is not there in CRPC in respect of financial transactions, it has terms cheating, forgery, frauds, breach of trust, misappropriation, etc thus just negligence cannot attract criminal breach. Unless “mes-rea” i.e. the criminal intention of the CHARTERED ACCOUNTANTS auditing the accounts is proved, no criminal actions, such as arrest can be taken against him. Any officer cannot arrest the CHARTERED ACCOUNTANTS just like that and spoil his carrier unless he can prove his fraudulent intention with proper evidence, which can stand in the court of law. They cannot take search at the premise of CHARTERED ACCOUNTANTS unless they have order of court and they prove in the court that they have sufficient evidence of information that the importance evidence has been kept secretly at a particular place.
CHARTERED ACCOUNTANT is not required to know circumstances under which documents has been signed. There are penalty provisions under the Companies Act , if any professional falsely certify documents. If a CA is guilty in performing his duty, there are provisions under the Chartered Accountants Act, 1949 for disciplinary action against him. CHARTERED ACCOUNTANT is a member of ICAI, which has been established by Parliament under Chartered Accountants Act, 1949. Sec 21 of the Chartered Accountants Act, 1949 provides power to council to establish a Disciplinary Directorate headed by an officer of the Institute designated as Director (Discipline) for making investigations in respect of any information or complaint received by it. Sec 21C of Act provides Disciplinary Directorate to have powers of civil court. If there is any complain against any CHARTERED ACCOUNTANTS, a letter of complaint can be sent to Director (Discipline), ICAI Bhawan Indraprastha Marg, Post Box No. 7100, NEW DELHI – 110 002
A CHARTERED ACCOUNTANT cannot be treated at par with criminal without any guilt or crime by arresting him by police. He has not been given opportunity to be heared also. Parliament has passed Chartered accountant Act, 1949 which contains mechanism to punish errant CHARTERED ACCOUNTANT member for any negligence in performing his duty.
The Writer may reached at-
CA.Rohit Ruwatia Agarwal
{B.Com, FCA, CCCA, FAFP (ICAI)}
Vice-Chairman, CIRC, ICAI
(Setup by an act of parliament)
Mobile – 9571799999,
E Mail – chartered_ruwatia@yahoo.in
Author Bio
one bogus FIR U/s 420 also filed against me by a police without any proof. whereas who filed the report was doing 420. when i was called by the police and i am requesting that i have sufficient papers that proves that i am not doing 420 but 420 is doing by the complainer then he said “tilli se tel niklega samne wale ke me tail hi nahi hai to kya nikalenge.” give me 10 lacs otherwise i will file the FIR Against you and you will prove in the court that you are not doing 420. i denied to given any bribe. and he registered the fir without taking the document from me. what i can do please suggest.
This is very urgent matter that should be persue by ICAI as soon as possible as day to day police harrassments are increasing by police , As CA attest documents in good faith because all external confirmation is not possible . And police harrass in differnt ways
The Arrest warrant clause was never form of basic act , why has it become urgently necessary to finalise process . Why . Is it only because of few erant members greed ,,
Profession must be kept @ highest standard by penalising greedy members by helping authorise in arresting them n clearing the reputation once for all
Only ETHICAL Approach
Necessary action should be taken by ICAI on this matter immediately.
Agree with writer
Sir,
Chartered accountant Act, is of 1949 but Criminal Procedure Code is of 1973 so kindly tell me if any exemption is provided in CrPC for CA or any provision regarding discrimination between a CA and general public exists on the point of Arrest or FIR.
Yes, proper process must be followed by the machinery before any FIR or arrest of a Chartered Accountant. The ICAI must take suitable action in this regard.
Excellent article and useful tips for CA