CS M. Kurthalanathan
Section 447 – Punishment for Fraud:
Any person who is found to be guilty of fraud-
Imprisonment for a term which shall not be less than 6 months but which may extend to 10 years and
Fine – Not be less than the amount involved in the fraud, but which may extend to three times the amount involved in the fraud.
If the fraud in question involves public interest – Term of imprisonment shall not be less than 3 years
Explanation For the purposes of section 447 of Companies Act, 2013
(i) “fraud” in relation to affairs of a company or any body corporate, includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of, the company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss;
(ii) “wrongful gain” means the gain by unlawful means of property to which the person gaining is not legally entitled;
(iii) “wrongful loss” means the loss by unlawful means of property to which the person losing is legally entitled.
1. Section 7(5) &7(6) – Incorporation of Company:
If any person furnishes any false or incorrect particulars of any information or suppresses any material information, of which he is aware in any of the documents filed with the Registrar in relation to the registration of a company, he shall be liable for action under section 447.
If, at any time after the incorporation of a company, it is proved that the company has been got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company, or by any fraudulent action, the promoters, the persons named as the first directors of the company and the persons making declaration under sec 7(1)(b)shall each be liable for action under section 447.
2. Section 8(11) – Formation of Companies with Charitable objects:
Every officer in default shall be liable for action under section 447 when it is proved that the affairs of the company were conducted fraudulently.
3. Section 34 – Criminal Liability for mis-statements in prospectus:
Where a prospectus, issued, circulated or distributed under this Chapter, includes any statement which is untrue or misleading in form or context in which it is included or where any inclusion or omission of any matter is likely to mislead, every person who authorisesthe issue of such prospectus shall be liable under section 447.
It shall not apply to a person if he proves that such statement or omission was immaterial or that he had reasonable grounds to believe, and did up to the time of issue of the prospectus believe, that the statement was true or the inclusion or omission was necessary.
4. Section 36 – Punishment for fraudulently inducing persons to invest money:
Any person who, either knowingly or recklessly makes any statement, promise or forecast which is false, deceptive or misleading, or deliberately conceals any material facts, to induce another person to enter into, or to offer to enter into,—
(a) any agreement for, or with a view to, acquiring, disposing of, subscribing for, or underwriting securities; or
(b) any agreement, the purpose or the pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities; or
(c) any agreement for, or with a view to obtaining credit facilities from any bank or financial institution, shall be liable for action under section 447.
5. Section 38 (1) – Punishment for Personation for acquisition etc of securities:
Any person who—
(a) makes or abets making of an application in a fictitious name to a company for acquiring, or subscribing for, its securities; or
(b) makes or abets making of multiple applications to a company in different names or in different combinations of his name or surname for acquiring or subscribing for its securities; or
(c) otherwise induces directly or indirectly a company to allot, or register any transfer of, securities to him, or to any other person in a fictitious name, shall be liable for action under section 447.
6. Section 46(5) – Certificate of Shares:
If a company with intent to defraud issues a duplicate certificate of shares, every officer of the company who is in default shall be liable for action under section 447.
7. Section 56(7) – Transfer and Transmission of Securities:
If any depository or depository participant, with an intention to defraud a person, has transferred shares, it shall be liable under section 447.
8. Section 206(4) – Power to call for information ,inspect books and conduct inquires:
If the Registrar is satisfied on the basis of information available with or furnished to him or on a representation made to him by any person that the business of a company is being carried on for a fraudulent or unlawful purpose or not in compliance with the provisions of this Act or if the grievances of investors are not being addressed, the Registrar may, after informing the company of the allegations made against it by a written order, call on the company to furnish in writing any information or explanation on matters specified in the order within such time as he may specify therein and carry out such inquiry as he deems fit after providing the company a reasonable opportunity of being heard.
Where business of a company has been or is being carried on for a fraudulent or unlawful purpose, every officer of the company who is in default shall be punishable for fraud in the manner as provided in section 447.
9. Section 229 –Penalty for furnishing false statement, mutilation ,destruction of documents:
If a person who is required to provide an explanation or make a statement during the course of inspection, inquiry or investigation, or an officer or other employee of a company or other body corporate which is also under investigation,—
(a) destroys, mutilates or falsifies, or conceals or tampers or unauthorisedly removes, or is a party to the destruction, mutilation or falsification or concealment or tampering or unauthorised removal of, documents relating to the property, assets or affairs of the company or the body corporate;
(b) makes, or is a party to the making of, a false entry in any document concerning the company or body corporate; or
(c) provides an explanation which is false or which he knows to be false, he shall be punishable for fraud in the manner as provided in section 447
10. Section 448 – Punishment for False statement:
Any person who makes a statement in any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purposes of any of the provisions of this Act or the rules made there under, which-
- is false in any material particulars, knowing it to be false; or
- omits any material fact, knowing it to be material,
he shall be liable under section 447.
The following offences for which punishment for fraud prescribed under Section 447 are Yet to be notified by Ministry of Corporate Affairs
1. Section 66(10) – Reduction of Share Capital :
Any officer of the company be liable under section 447 if he—
(a) knowingly conceals the name of any creditor entitled to object to the reduction;
(b) knowingly misrepresents the nature or amount of the debt or claim of any creditor; or
(c) abets or is privy to any such concealment or misrepresentation as aforesaid,
2. Section 75(1) – Damages for Fraud:
If a company fails to repay the deposit or part thereof or any interest within the specified time
and it is proved that the deposits had been accepted with intent to defraud the depositors or for any fraudulent purpose, every officer of the company who was responsible for the acceptance of such deposit shall, without prejudice to the liability under section 447, be personally responsible, without any limitation of liability, for all or any of the losses or damages that may have been incurred by the depositors
3. Section 140(5) – Removal,resignation of auditor and giving special notice:
- The Tribunal either suo motu or on an application made to it by the Central Government or by any person concerned, if it is satisfied that the auditor of a company has, whether directly or indirectly, acted in a fraudulent manner or abetted or colluded in any fraud by, or in relation to, the company or its directors or officers, it may, by order, direct the company to change its auditors.
- If the application is made by the Central Government and the Tribunal is satisfied that any change of the auditor is required, it shall within 15 days of receipt of such application, make an order that he shall not function as an auditor and the Central Government may appoint another auditor in his place.
- An auditor, whether individual or firm, against whom final order has been passed by the Tribunal under this section shall not be eligible to be appointed as an auditor of any company for a period of 5 years from the date of passing of the order and the auditor shall also be liable for action under section 447
4. Section 213 –Investigation into companys’ affairs in other cases:
If it is proved after investigation into the affairs of the company that—
(i) the business of the company is being conducted with intent to defraud its creditors, members or any other persons or otherwise for a fraudulent or unlawful purpose, or that the company was formed for any fraudulent or unlawful purpose; or
(ii) any person concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, then, every officer of the company who is in default and the person or persons concerned in the formation of the company or the management of its affairs shall be punishable for fraud in the manner as provided in section 447.
5. Section 251(1) – Fraudulent application for removal of name
Where it is found that an application by a company of section 248(2) has been made with the object of evading the liabilities of the company or with the intention to deceive the creditors or to defraud any other persons, the persons in charge of the management of the company shall-
(a) be jointly and severally liable to any person or persons who had incurred loss or damage as a result of the company being notified as dissolved; and
(b) be punishable for fraud in the manner as provided in section 447.
6. Section 266(1) – Power of Tribunal to assess damages against delinquent directors etc..
If, in the course of the scrutiny or implementation of any scheme or proposal including the draft scheme or proposal, it appears to the Tribunal that any person who has taken part in the promotion, formation or management of the sick company or its undertaking, including any director, manager, officer or employee of the sick company who are or have been in employment of such company,—
(a) has misapplied or retained, or become liable or accountable for, any money or property of the sick company; or
(b) has been guilty of any misfeasance, malfeasance, non-feasance or breach of trust in relation to the sick company,
it may, by order, direct him to repay or restore the money or property, with or without interest, as it thinks just, or to contribute such sum to the assets of the sick company or the other person, entitled thereto by way of compensation in respect of the misapplication, retainer, misfeasance, malfeasance, non-feasance or breach of trust as the Tribunal thinks just and proper:
The Tribunals’ direction shall be without prejudice to any other legal action that may be taken against the person including any punishment for fraud in the manner as provided in section 447.
7. Section 339(3) – Liability for fraudulent conduct of business
If any business of a company is carried on with such intent to intent to defraud creditors of the company or any other persons or for any fraudulent purpose, every person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be liable for action under section 447.
New Proposed Section in The Companies (Amendment)Bill,2014:
The Companies (Amendment) Bill,2014 has proposed to insert a new Section 76A,which deals with the Punishment for contravention of section 73 or section 76.
Where a company accepts or invites or allows or causes any other person to accept or invite on its behalf any deposit in contravention of the manner or the conditions prescribed under section 73 or section 76 or rules made there under or if a company fails to repay the deposit or part thereof or any interest due thereon within the time specified under section 73 or section 76 or rules made there under or such further time as may be allowed by the Tribunal under section 73,—
|Company||Fine which shall not be less than Rs.1 Crore/- but which may extend to Rs.10 crores /-|
|Officer in default|| Imprisonment for a term which may extend to 7 years orFine which shall not be less than Rs.25 Lakhs but which may extend to Rs.2 Crores/- or |
If it is proved that the officer of the company who is in default, has contravened such provisions knowingly or wilfully with the intention to deceive the company or its shareholders or depositors or creditors or tax authorities, he shall be liable for action under section 447.