CHAPTER 1 – INTRODUCTION
Money Laundering is linked with banking and trading history because it hides assets as money from the state from getting confiscated as well as taxed. It is said that such laundering is originally originate from the Mafia ownership of Laundromats, during the time of famous gangsters that came initially out of the Prohibition-banning of alcohol. Various mechanisms used to cover the origins of huge amount of money which used to be generated by the import as well as sale of alcohol and also by way of extortion, gambling. Alphonse Gabriel Capone an American gangster who was highly involved in smuggling and other illegal activities was prosecuted and convicted in the year 1931 for tax evasion. He states that Money Laundering perfectly describes the taking place of dirty money which is put through various transactions so that at the other end legal money comes out. The sources of funds which are obtained illegally by way of successive transfers and deal those funds will become a legitimate income.
Unluckily one method for hiding the source of money was through legal gambling. Further the main issue which the gangsters mainly faced was cash which is often in denomination of coins. If it is put in the bank than questions will be asked, so they created various businesses one of which was slot machines. The initial sighting was the newspapers reporting about Watergate scandal in the year 1973. After which the term has been globally accepted because of its popular usage in the world. Such activity does not affect only single entities but the whole country because it impacts operating activities and other elements. It serves wrong purposes by intentional hacking of the system. The important principle for money laundering is eliminating the risk of seizure, confiscation and forfeiture so that the legal money can be enjoyed without any intervention of law. The project will help us to understand about the money laundering in India. The stages of money laundering will also be discussed. In India, laws which are framed for crimes done with prescribed punishment are under the Prevention of Money Laundering Act, 2002. Further, suggestion for preventing money laundering and what can be done by various measures will also be noted and will conclude as per required.
To objective is to study the impact of Money Laundering in the economy and the process of money laundering which is divided into three stages. Further to understand in detail about the Prevention of Money Laundering Act, 2002. The legislative measures which is made for fighting with this crime.
To aim is to study and know about the concept of Money Laundering in India as well as its law enforcement. Further the project also discusses about ideas as well as the process and its techniques used which impacts the economy nationwide. By knowing the problems in the law enforcement, suggestions are given for improving it. The project also aims to understand the law, respective punishments made and regulations under the Prevention of Money Laundering Act, 2002. To understand the effects which are caused by such crime on the economy.
1.4 STATEMENT OF PROBLEM
Money Laundering is basically a process where the proceeds of crime are converted into legal money. Its intention is to conceal money from the State so that to prevent loss by taxation, confiscation, etc. Criminals try to cover the origin of money by way of illegal activities to look like it has been obtained through legal places otherwise they won’t be able to use such money as it would link to criminal activity and enforcement can seize it. Since the last decade there is an increasing rise in the money laundering cases. Even after the Prevention of Money Laundering Act, 2002 for curbing and punishing such person who commit such cases. There are still a lot of measures which is left to be taken because even after this all measures, such activities are still going on. Government is taking and looking after such steps very deeply and analysing the process as to how such work is done because it is effecting the economy.
Whether the measures to curb money laundering activities are giving effect? What are the changes which need to be brought for reducing such activities?
1.6 REVIEW OF LITERATURE
The Author gives us a brief background on the evolution of Money Laundering as well as when how it began in India. The Author sheds the light on the Prevention of Money Laundering Act, 2002 which gives provisions for offences which are committed and respective punishments of it. The process of money laundering is described in detailed i.e. placement, layering and integration stage. The Author also provides us about the effects of money laundering which is caused in the economy.
The Author gives about the history of Money Laundering during the time of American gangster Alphouse Gabriel Capone who was involved in smuggling, bootlegging liquor. The Author also provide us with the technique of drug trafficking as well as other organisations have developed for removing the illegal money placing it far away from the law enforcement. The Author also sheds the light on the political and social effects which are caused due do such money laundering activities. Further the Prevention of Money Laundering Act, 2002 which came into effect for curbing such activities is also explained in detailed.
CHAPTER 2 – PROCESS OF MONEY LAUNDERING
The international threat which is money laundering as well as terrorist financing is the most alarming fact. Money Laundering in simple meaning is “to clean the money” with respect to appearing in law, and it is the practice of linking with particular financial transactions for covering the identity as well as the source of money. Therefore, money laundering is a way by which huge amounts of illegal money i.e. by serious crimes or drug trafficking is given appearance of having originating from legal source.
This illegal activity is mainly practised by individuals, corrupt officials, large and small business or even corrupt intelligence or states. The definition of Money Laundering which is given by Financial Action Task Force (FATF) is “the processing of criminal proceeds to disguise their illegal origin” in order to “legitimize” the “ill-gotten gains of crime”.
2.2. PROCESS OF MONEY LAUNDERING
However it is a single process, the process can be divided into three stages which are placement, layering and integration stage –
Placement Stage – In this stage the money which is received in illegal manner are introduced in financial system. The illegal money is inserted into legal financial institution which is often in form of cash deposits. Being the most risky stage of laundering because huge amounts of cash are noticeable, banks need to report such huge transactions. For reducing the risks, such large amount of cash is broken into smaller amount which are deposited directly into bank account or through purchasing of monetary instruments such as money orders, cheque, which are collected and deposited in another place.
Layering Stage – This stage includes creating a chain of transactions which in their frequency, dimensions often look like legal financial activity. Layering contains wire transfer or resources into banking system by origin. Such money is passed through shell banks, shell corporations, off shore jurisdictions, trust. While layering the money path, such money can also be moved to legal business as well as genuine banks. In such process, the electronic transfer of money is helpful as it allows money through several entities as well as jurisdictions in some hours. The other trend is money which is laundered from uneven financial by way of intermediate financial circuit to legal financial entities.
Integration Stage – During this stage involving of amalgamation of covered crime is starts coming in financial system. Once these funds are layered, they are brought in financial system by way of any investments in legal commercial corporations and it is shown legal by financial instruments such as bonds, bank notes, securities, cheque, and guarantees. With such legal enterprises the money can be easily repatriated to home country by showing as legal income. The money which is used abroad can also be shown as advance to the launderer in the home country, and obviously the money launderer can also default on loans but even if he repays it such cycle is noticed to launder money. Further, money which are from such legal enterprises are also not required if such needed, and can be utilised in foreign country for illegal or legal activities. If such process fails then the consequences is seizure of accounts and confiscated.
CHAPTER 3 – PREVENTION OF MONEY LAUNDERING ACT, 2002
The major statues that had measures for addressing the issues of money laundering before Prevention of Money Laundering Act, 2002 were the Income Tax Act, 1961, The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), The Smugglers and Foreign Exchange Manipulators Act, 1976 (SAFEMA), The Benami Transactions (Prohibition) Act, 1988, The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPSA), The Foreign Exchange Management Act, 1999 (FEMA), The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
The various forms of criminal activity has increased the threat, thus concern had been raised up due to lack of effective laws for dealing in smuggling, foreign trading violations, narcotics and also special provisions for detention and forfeiture of property. Thus the Prevention of Money Laundering Bill was presented in Parliament on 4th August, 1998. After the assent of President on 17th January, 2003 it became Prevention of Money Laundering Act, 2002 with effect from 1st July, 2005.
OFFENCE AND PUNISHMENT OF MONEY LAUNDERING
When any person attempts to indulge and is knowingly assisting or is a party which is connected with the proceeds of crime i.e. includes possession, concealment, use or acquisition as untainted property is guilty of offence of money laundering. Further, any person who committed such offence shall be punishable for a term not less than three years but may extent to seven years of rigorous imprisonment as well as fine. If the proceeds of crime relates to any offence which is there in paragraph 2 of Part-A of Schedule, provisions of such Section must have effect with extent to ten years which had been substituted from seven years.
ATTACHMENT, ADJUDICATION, CONFISCATION
Where the director not below the rank of Deputy Director has reasons on the basis of material which is in his possession feels that any person is having possession of proceeds of crime and such proceeds of crime are expected to be transferred or dealt in any manner which would result in frustrating proceedings. For preventing such situation the director may in writing order to attach such property for a period not more than one hundred and eighty days from the date of order as may be prescribed. On condition that, no such order for attachment can be made unless it is a schedule offence and a report needs to forwarded before Magistrate under Section 173 of the Code of Criminal Procedure, 1973.
When the complaint is received before the Adjudicating Authority and have reasons for believing that any person has committed offence under Section 3, he may issue a notice to such person of not less than thirty days calling upon him for indicating his source of income, assets or earning by which he acquired the attached property or seized. Further for the evidence which is relies upon and to show cause why any of such properties should not be property which is involved in money laundering and be confiscated by the Government. After knowing the response and all other information, the Authority can give final order of attachment and also confiscation order, which will be rejected or confirmed by the Special Court as the court finds appropriate.
OBLIGATION OF BANKING COMPANIES, INTERMEDIARIES, FINANCIAL INSTITUTIONS
All reporting entity have to maintain record of every transactions which are executed, attempted and needs to be furnished to Director within the time as may be prescribed. Further, all such information verified or furnished, have to be kept confidential and needs to be maintained for ten years from the date of transaction between entity and client. During the course of inquiry, if Director finds that reporting entity failed in complying with obligations, without prejudice to any other actions he has the power to issue warning, or direct to comply with precise instructions, or by order, penalty can also be imposed which should not be less than ten thousand rupees and can be extended to one lakh rupees for each failure. On the basis of material which is in the Directors possession and have reasons for believing that any person is guilty of offence as per this Act, he may arrest and also inform him the grounds.
Any aggrieved reporting entity by the order of Director which is made under Section 13 may prefer appeal to the Appellate Tribunal within a period of forty five days from the date when the order is received from Adjudicating Authority or Director. If sufficient cause is showed after the period of forty five days the appeal can be entertained. The powers of Appellate Tribunal is the same as vested in civil court under the Code of Civil Procedure, 1908 and can summon the attendance of any person, discovering and production of documents, receiving evidence, issue commissions for examining the witness, review decisions, setting aside order of dismissal, any other which can be prescribed by Central Government.
Within a period of sixty days from the order Appellate Tribunal on any question of law which are arise out of order, any person who is aggrieved by the decision of Appellate Tribunal can file appeal to the High Court. If sufficient cause is showed after the period of sixty days the appeal can be entertained.
The Central Government with consultation of Chief Justice of High Court for offence which are punishable under Section 4 designate one or more Session Courts as Special Courts for cases which are specified.
OFFENCES TO BE NON-BAILABLE AND COGNIZABLE
No person can be released on bail under this Act unless every offence shall be cognizable, offence is not more than a term of three years must be released on bail unless the Public Prosecutor oppose the application and the Court is satisfied for believing that the person is not guilty of offence and the person won’t be committing an offence on bail. A person who is under the age of sixteen years or a woman or is sick and also money-laundering for a sum of less than one crore rupees can be released on bail.
CHIDAMBARAM VS. DIRECTORATE OF ENFORCEMENT
FACTS – The case was before the High Court of Delhi from where the Appellant filed an appeal against the judgment in Bail Application No. 2718 of 2019 in Supreme Court by Special Leave where Section 439 of Code of Criminal Procedure, 1973 was allowed by the Supreme Court and the judgment of Delhi High Court dated 15.11.2019 was set aside.
M/s. INX Media Private Limited wanted permission of Foreign Investment Promotion Board (FIPB) for issuing by way of preferential interest, non-cumulative, equitable and convertible for engaging in business for operating, creating of bouquet of television channels. Further, the company also required permission for making downstream investment to the limit of 26% as well as the outstanding equity capital of M/s. INX News Private Limited. FIPB suggested for consideration and permission of Finance Minister. The Board did not approve the downstream investment. FIPB unit issued a press release dated 30.05.2007 which included the details of proposals which was approved in the meeting, in which it showed that the NRI inflow against M/s. INX media was Rs. 4.62 crores. Disagreeing with the permission of FIPB the company intentionally made downstream investment which was to the extent of 26% capital of INX News as well as made more Rs. 305 crores Foreign Direct Investment in INX Media Ltd. against the allowed foreign inflow of Rs. 4.62 is the accusation. Further FIPB unit letter dated 26.05.2008 required detailed clarifications from the company. The company in order to prevent penal action entered into conspiracy with Mr. Karti Chidambaram (Son of Appellant). Allegations which was put on him was that he exercised his influence over the FIPB unit which to undue favour to the company. Thereafter covering the investment received M/s. INX News Pvt. Ltd. and M/s. INX News (P) Ltd. come up to FIPB and asked for approval to downstream investment which was positively considered and approved by Finance Minister. It was further stated Mr. Karti Chidambaram for the services which was done to M/s. INX Group, had received the payments for it and invoices of around 3.05 crores was raised in favour of M/s. INX Group in which Mr. Karti Chidambaram was having interests. The then Finance Minister name was not there in the FIR. From the above FIR, the Respondent i.e. Directorate of Enforcement registered a case under Section 3 of Prevention of Money Laundering Act, 2002 which is punishable under Section 4 of the Act against the accused. On 23.07.2018 he was arrested by the Respondent, during that time the Appellant filed an anticipatory bail in ECIR case which was dismissed because the Appellant can obstruct in the investigation and such case is not a fit case. On 21.08.2019 Appellant was arrested in CBI case and he was in custody from that time and on 16.10.2019 by the Respondents stating that an amount was paid of around 3 crores at his instance to companies which were controlled by his son. After Appellant’s bail was dismissed by the court he made an application dated 05.09.2019 praying for surrendering before the trial court which was also rejected.
The judgment was given by Justice A.S. Bopanna. The Court is not much inclined in opening sealed cover even though such materials were received by Respondent. The Appellant’s name was not there in the case but allegations was made against him by the co-accused. Since the anticipatory bail was declined previously the Appellant was available for interrogation for more than forty five days. Further, if the Respondents required for further investigation he is bound to be present. Noticing the situation as well as considering the duration he was in custody the Appellant is entitled to grant bail. Further execution of bail bonds for a sum of Rs. 2 lakhs with two sureties of the like sum produced and also the passport to be deposited. Further he won’t be tampering any evidence.
UNION OF INDIA vs. HASSAN ALI KHAN & ORS.
FACTS – This case was brought before the Bombay High Court from where the Appellant filed an appeal against the judgment as well as order in Cr. Bail Application No. 994 of 2011 in Supreme Court by Special Leave and the judgment of Bombay High Court dated 12.08.2011 was set aside.
The allegations made against the Respondents as well as the others are that they committed offence which is punishable under Section 4 of the Prevention of Money Laundering Act, 2002. The case is registered by the Deputy Director, Enforcement Directorate, Ministry of Finance and Government of India on 08/01/2007 on Directorate report on documents which was received by the Income Tax Department. Further the department made a search in the premises of Respondent No. 1 and found a sum of Rs. 88,05,000 in Peddar Road, Mumbai which was seized. There was various imported watches and jewellery was also found and seized. Thereafter, he purchased an expensive car which was worth Rs. 60,00,000 from one Anil Shankar and paid till then sum of Rs. 46,00,000 towards that purchase. He also transferred various amount to different persons from accounts which was held by him outside India. After further investigation Income Tax Department assessed his total income previous years came to Rs. 110,412,68,85,303/-.
He was further issued show cause notice under the Foreign Exchange Management Act, 1999 for violation of Section 3 and 3A of the Act for dealing and holding foreign exchange of US$ 80,004,53,000 approximately Rs. 36,000 crores in Union Bank of Switzerland and various accounts in Zurich. After making inquiries it was found that Respondent No. 1 was holding three passports by submitting false documents. He also sold a diamond from collection of Nizam of Hyderabad and through sale proceeds in his account in Basel, Switzerland to the Barclays Bank situated in United Kingdom. Based on the above facts, Directorate of Enforcement arrested him on 7th March, 2011 and was produced before Special Judge, PMLA in Mumbai and was remanded in custody. Further in the order dated 11th March, 2011 the Special Judge rejected the prayer of Directorate of Enforcement and released him on bail. Since Public Interest Litigation was going on in Court and status report was required to be filed by the Directorate of Enforcement of this, when the Court was brought into notice that the Respondent No. 1 is released on bail then this court stayed the operation of bail and ordered to detain him in custody initially for four days. A bail was further prayed by Respondent No. 1 but the same was dismissed by the Special Judge. Challenging the order of Special Judge the Respondent filed Bail Application before the Bombay High Court and after hearing he was granted bail by the order dated 12th August, 2011. Further the Learned Additional Solicitor General referred the provision of Section 45 of the Prevention of Money Laundering Act, 2002 which states about the offences which make cognizable and non-bailable and provides that no person can be released on bail whose offence is punishable for a term of more than three years under Part A of the Act and the exceptions are a person whose age is below 16 years or woman or a person who is sick.
The judgment was given by Justice Altamus Kabir. The High Court proceeded by the attempt which was linked by the prosecution of different passports with the functioning of the foreign bank accounts is not acceptable and failed to focus on other parts of the case. Further the total income of Rs. 110,412,68,85,303 which was been by Income Tax Department in Section 24 of the Act the Respondent no. 1 was not able to establish the same neither untainted property. Lastly, the way Respondent No. 1 obtained three passports in his name even after the original passport was directed to be deposited brings question that if released on bail the Respondent No. 1 will escape. Therefore, Appeal allowed and the judgment of Bombay High Court is set side and the bail is cancelled which was granted to Respondent No. 1.
CHAPTER 4 –ANTI MONEY LAUNDERING
Financial Action Task Force (FATF)
It is an international government body introduced at the G7 summit at Paris in the year 1989 with the objectives of promoting and standardising implementation of regulatory, legal and operational measures for combatting money laundering as well as other threats to the integrity of global financial system. FATF also advanced series of suggestions which are recognised as the global standards to combat money laundering. In the year April 1990 a report is issued which contains forty recommendations with the intention to fight against money laundering.
The Vienna Convention
In the year 1988 it is the first initiative for preventing money laundering. The convention laid efforts for combatting money laundering by criminalizing the money laundering from drug trafficking with the help of all the member states. It promotes global cooperation by investigating and making extradition between member states which is applicable for money laundering.
Council of Europe Convention
In 1990 this convention introduces a policy on money laundering. It lays down principles for global cooperation among the member states, which can include states outside Europe. The main purpose is for facilitating global cooperation with respect to search, investigative assistance, confiscation and seizure of all every criminality, particularly arms dealing, drug offences, etc. and such other offences which generates huge profits.
The Basel Committee on Banking Supervision
The committee in the year 1988 issued statement which encourages the banking sector in order to ensure that banks does not hide or launder criminal activities. This principles extends to all aspects through banking system i.e. transfer, deposit, concealment from illegal activities whether by robbery, drugs or frauds.
4.2 ANTI MONEY LAUNDERING STANDARDS
Know Your Customer (KYC) norms
The Reserve Bank of India issued circular on Know Your Customer (KYC) norms/ Combat of Financing of Terrorism (CFT)/ Anti-Money Laundering (AML) standards under the Prevention of Money Laundering Act, 2002 and during opening of accounts banks are advised for following customer identification and managing transactions which are suspicious for reporting it to authorised authority.
The Financial Intelligence Unit- India (FIU-IND)
Since the Prevention of Money Laundering Act, 2002 has formed the core framework to fight against money laundering in the country. The Financial Intelligence Unit is an agency for monitoring the anti-money laundering system and help in strengthening efforts of national as well as international intelligence, enforcement agencies for pursuing the international efforts against money laundering. It is a specialised government agencies which is made to act between law enforcement agencies and financial sector for collecting, analysing suspicious transactions.
CHAPTER 5 – SUGGESTION & CONCLUSION
It can be seen about the activities which are involved in money laundering which is international in nature, it is necessary to have heavy impact and all countries enact strict and if possible same laws because there won’t be any place which will be left to target by money launderers for laundering their crime by way of weakness jurisdiction. There also need to be measures for having proper coordination between the state and centre. The struggle between the two shall have to be removed.
To make order of restraint for prohibiting dealing in property which is obtained by way of wrongful conduct. Such restraint order will have the effect of freezing property that may be liable to have confiscation order. Further, money laundering should cover provisions of other professions i.e. legal profession, insurance, commercial traders. Further a special unit which are dealing in money laundering activities shall be formed in the way prescribed by Economic Intelligence Council (EIC) for dealing in Anti Money Laundering (AML). Such unit shall have the access and also be able to share and exchange information about the various offences with INTERPOL and big organisation which are dealing in Anti Money Laundering.
For most of the person money laundering seems to be victimless crime. The harmful effects which can be seen is necessary today to educate people about the crime and know about the instances of money laundering. Once the people would be able to see the problem, it would than contribute towards good law enforcement because it would be subject to public examination. Thus, for having an effective anti-money laundering regime it needs to be think nationally, globally and regionally.
Money Laundering is thus, not a local crime but a serious offence which should not be taken lightly. The Prevention of Money Laundering Act, 2002 is serving as an umbrella for financial institutions like Insurance Regulatory and Development Authority (IRDA), Reserve Bank of India (RBI), Securities and Exchange Board of India (SEBI) which thereby involve to all intermediaries, insurance companies, banks as well as mutual funds. Financial Intelligence Unit India (FIU IND) is an agency which monitors the anti-money laundering and which regulates over compliance by all intermediaries and institutions. Various Anti-Money Laundering measures has been taken in India but somewhere there are some loopholes which is not fulfilling the purpose. The problems are, due of growth in technology it is possible for money launderers to act the origin of proceeds of crime by cyber techniques. Lack of awareness is also an issue. The purpose of KYC for preventing the banks from being used by criminals for money laundering also raises a problem. However Hawala transactions cannot be stopped because RBI cannot regulate them. Money laundering offences is not stuck in one area, but it is spread in various operations. Money laundering and black money are a very important topic that the government needs to focus more on.
The offence of money laundering has become a dynamic process because the criminals are always looking for various ways for achieving the illegal motives. Furthermore, various countries are entering into multiple conventions and agreements for strengthening measures for combating money laundering, such money launderers are still exploiting those jurisdictions which do not have sufficient laws and that are weak. A proper strict policy with respect to anti-money laundering is the need not only in India but all over the world.
For having an efficient economic growth there needs be decrease in money laundering activities in financial sector because it will decrease the efficiency in economy and by diverting and discouraging money laundering and corruption which will slow down economic growth and have the capacity for affecting the external sector i.e. capital flows and international trade.
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 Prevention of Money Laundering Act, 2002, § 5, Act of Parliament, 2002 (India).
 Code Crim. Proc. § 173.
 Prevention of Money Laundering Act, 2002, § 8, Act of Parliament, 2002 (India).
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 P.Chidambaram Vs. Directorate of Enforcement, MANU/SC/1670/2019 [Criminal Appeal No. 1831 of 2019 (Arising out of S.L.P. (Criminal) No. 10493 of 2019].
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 Union of India vs. Hassan Ali Khan & Ors.,  11 SCR 778.
 Prevention of Money Laundering Act, 2002, § 4, Act of Parliament, 2002 (India).
 Foreign Exchange Management Act, 1999, § 3, Act of Parliament, 1999 (India).
 Foreign Exchange Management Act, 1999, § 3A, Act of Parliament, 1999 (India).
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The Prevention of Money Laundering Act, 2002
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