Interview With Advocate Hrishikesh Subhedar On White Collar Crimes

inbatv India, Interviews
  • What do we exactly mean by white collar crimes?
  1.  The thing is that there are many crimes are happening around the world over. Some are bodily offences, some are related to food and safety, drugs issues, then there are some crimes which are related to atrocities against women like dowry, rape but financial crime is a white-collar crime because the substratum, the bottom line is money and nothing else. Majority of the crimes that are happening all over the world, may or may not be financially motivated but white-collar crime is always financially motivated.
  •  What are the essential ingredients or characteristics of such crimes, how would be classify that the offence comes under white collar crimes?
  1. Well, like I told you like that one is the financial motivation part, the second aspect of white-collar crime is that it is carried out or it is committed by the people who belong to the higher runs of the society like there are professionals, politicians, corporate houses. These are the people who are 99.99% involved in to the white-collar crimes. So, these are the basic ingredients i.e., financial motivation and it is carried out by the top runs of the society.
  • Sir have you heard about Edwin Sutherland’s idea of white-collar crimes?
  1. In the year 1939, Edwin Sutherland was the first who propagated the idea of white-collar crime, he was the one who actually conceptualized the idea of white-collar crime.
  • His famous definition of white-collar crimes states that the activities involving white collar crimes might not always have mens rea? Do you also think such crimes might happen and would constitute white collar crime?
  1. Absolutely, many of the cases of white-collar crimes have taken place without mens rea.
  • Don’t you think it actually contradicts the basic definition of what crime is that states that without mens rea, the person cannot be held guilty of the act i.e., ‘Actus non Facit Reum nisi mens sit rea’?
  1. That’s why there are special legislations for the white-collar crimes. Now if you take into consideration, the Indian penal code, there are many cases of cheating, forgery, misappropriation of funds or criminal breach of trust, so it is nothing but white collar crime but the ambit of the Indian penal code is not wide enough to implicate all white-collar criminals, that’s why specific acts like Prevention of Money Laundering act (PMLA) or financial bill 2019 which amended the provisions of PMLA so taking these into consideration, certain fictions of the society who were involved in the crime, they were getting unnoticed, they were not getting prosecuted for the offences that they have committed.

Now, one person is committing the offence and the other person is indirectly trying to conceit what a person has committed so under the Indian penal code S. 120B i.e., criminal conspiracy that is wide enough section but during police investigation, all the co-accused who were involved in the criminal conspiracy were not brought to the books, that’s why specific acts were needed and for that purposes, criminal intend was sidelined in order to accommodate more and more person into this who are actually the perpetrators of the crime so that they should not go thought free.

  • Crimes are crimes! Then why do you think there was a need to define a separate category of white-collar crimes? How are the white-collar crime different from that of blue-collar crimes?
  1.     Absolutely, in order to commit a white-collar crime, you need to be on that particular position. Let’s say, a laborer is working in a big multinational company and he wishes to swindle off thousands of dollars of money but is he in the position to do that? The answer is no, because he is not in charge of the management of the company, he is not meeting with the top officials of the company, he is not in charge of the accounts, he is not in charge of the decision making so he won’t be in a position to do so. That is the difference between the white-collar crimes and the blue-collar crimes.

Although, crime is a crime, what I said I agree to that, but you need to draw a line between who can commit these white-collar crimes and who cannot. Like, we had a case in India which was ‘Satyam Scam’ which had Mr. Raju implicated in the matter so that was a good example of white-collar crime so he went to serious fraud investigation office then he went to CBI, all were in charge of the investigation during that time so in order to investigate pertaining to a particular crime, they would have immediately got an idea who were the people responsible behind this so they immediately approached the top level investigators of ‘sat yam’ instead of interrogating the laborer for that matter.

So, essentially this difference helps investigation agency in finding out or digging deeper into the matter in order to make that matter reach logical conclusion.

  • Have you dealt any White-collar crime cases in your practice years?
  1. Well, there are many cases that I have dealt with like there were cases related to forgery, criminal breach of trust and cheating, the sections are 406, 409, 420, 417 of IPC and 467, 468 and 471 of IPC so these are the sections which primarily deal with the white-collar crimes in India.

So now, the opinion of the judges is also changing from the past decade or decade and a half. Initially, it was not given its due importance because majority of the crimes then we utter the word crime itself, what comes in mind is murder, theft, dacoity or robbery but with industrialization, with globalization, with big companies coming up, with losing of morals and ethics in a society, many people are moving toward white-collar crime so this is very important aspect of it and even the judiciary like I said, changing its opinion on it, they are dealing with these matters with iron hand.

Judgement of honorable supreme court is that the crime or economic fraud is done with the calculated mind so it harsher or worse than a cold-blooded murder. This was the observation of the honorable supreme court in one case so if you find anyone being accused of white-collar crime, it is not an easy case nowadays so I have seen people who are involved in frauds, they are in jail for 2-3 years. However, there are people who commit dacoity and robbery coming out on bail but white-collar crime, the prosecution has become very stringent and it is the need of now, I would say.

  • Sir there are different courts, people have to approach for different white-collar crime, crimes like for IPC people approach Sessions Court, income tax crimes – the tribunal, for money laundering there are special authorities. Don’t you think it would be easier if we adjudicate all such white-collar crimes under a special different tribunal or court to avoid confusion as well as chaos and delays?
  • Now, you have asked me a very political question (laughs). See the thing is that it is absolutely right and it is the wheel of the hour that I would say that established special courts is also necessary but taking into consideration, the financial constraints, the coordination between the ruling government and high court so these things are needed but whether they will take place in the immediate future or near future and I am very doubtful so what happens is that, even in regular courts, one specific judge is appointed as special court who looks after all these financial thoughts like MPID (Maharashtra provision of interest of depositors act 1999) so in the pune court, there is a special court appointed for that matter but it is not the only matter or cases before that special court comes. Along with other cases, he has to deal with these cases so the judge gets overburdened and the real intent of trying those cases in a fast way, is being hindered due to this. So, I would say it is the need of the hour but when it will happen, only god knows!
  • What are the legal implications if the offender is from outside the country? Do the laws apply to him?
  1. Yes, it applies to them. There is Judgement of a court (I forgot which court) where it is applicable. Any person who is being a conspirator in laundering of money or financial assorts or even she can be held responsible for it. For example with respect to the case called the ‘Bhopal gas tragedy’, there was one person who was in charge of that company who had gone out of the country even before the prosecution started so the government was trying to get him back but the efforts were gone in vain and he died a few years back in USA, I guess.

So yes, they are held liable for the crime that are held here but committed here and committed by them but now the question is that even if they are alleged to have committed certain crimes here then the extradition treaties are also very important.

Many a times, suppose a foreign national has committed a crime here and he is prosecuted for it, his name is reflected in FIR and in the charge sheet but unfortunately the nation which he belongs to does not have the extradition treaty so his extradition process becomes difficult so it is really very important that not only the person who has committed the crime should be booked but also signing of the treaty at the international level so that you can bring back those people who have committed the crime and face the consequences here which is very important.

  • There are no benefits like of milder punishments for the ones who confess their white-collar crimes to the authorities. Since the type of punishment policy, we follow is the reformative, don’t you think we must show some mercy on the ones who have admitted their actions like in blue collar crimes?
  1. The thing is that, the government or law portal cannot do that because the magnitude the white-collar crime causes our society is humongous, it’s huge so now, let’s say that there is a builder in matric and litigation in pune who is alleged to have committed a fraud and there are many sections which are implied on him. For the last 2-3 years, I think he is in jail. So, now he has been alleged that he has into investors of crore of money so now the government comes up with a plan and says to reduce his punishment. What message it will deliver to the society? So the people who have earned money by toiling day in and day out and one fine day, they realized that the money they had invested with the particular organization is no more, it’s gone.

So, what are they supposed to do and if the government or the law portal decides to acquit this person of all the charges or let’s say, that I am not into moral conviction or say I’m against moral conviction but if strict provisions of the law are not applied to these then the wrong message will delivered to the society.

  •  Alright, but don’t you think that follows in blue-collar crime also like bodily injuries or financial hindrance but we accept confessions in blue collar crimes and we don’t in white-collar crimes?
  1. Absolutely, what you are saying is right. The thing is that you must understand the magnitude of the offences like I said. So, in blue-collar crime, suppose a theft is committed in one particular shop or compartment but the society as a whole is not suffered by this. Only that individual family or that person has suffered the most. But when it comes to magnitude of a white-collar crime like I said, say there are thousands of investors in an organization so many people are involved in it and the financial load that is coming on the system is also very huge. Although, crime is a crime but you also need to differentiate the magnitude or the intensity or the impact that it causes to the larger part of the society.
  • Let’s talk about White Collar Crimes in our field the field of law? What kind of these white-collar crimes happen inside of the judicial system?
  1. Like I said that cheating is majorly an offence that is because of the greed of the people and lot of avenue that are opening up so, more the financial growth, more industrialization, more people will work, more money will grow per day and more the people are in charge of the monetary affairs, more crimes will take place because everyone wants money. That’s the bottom line of it. Now from where you get it, it hardly matters because the accused is not confronted. They are only considerate about having the money in their pocket. So, like I said since the last decade, decade and a half, crimes like cheating are at a rise.

See, there are allegations that have been damaging the reputation of the judiciary system for past many years like there are many allegations of corruption of judges, lawyers are bribing the judges even lawyers are bribing the public prosecutors and other offences that are alleged but unless and until the charges are proved or there is substantial investigation that has taken place, you cannot really comment on it.

  • What reasons do you believe that might lead to such crimes happening in our profession of law?
  • Like I answered the first question of yours, it is financially motivated but the basic bottom of it is money and it is not the case that the lawyers when demand a huge amount of money from the clients. I think they are within their rights to demand it. If they are giving certain services to a person, they are charging that person an such amount then I think it is his right and if the client and the lawyer’s relationship, the lawyer is asking for an such amount and the client is also agreeing to pay that amount, I don’t think that should be the matter of anyone to consult.

But when it comes to forging the forensic reports or getting involved in the decision making, basically, influencing the decision making, I feel that it is just a part of money gaining. No one does it for free. Even the journalists say that some judges give particular decisions by taking money so the reason for it is greed so no one will do it for free. So, money is the criteria that outruns the society.

  • Coming to the last question, what steps should be taken to ensure that these crimes don’t happen, since the white-collar crime rate is increasing since the last decade? What should the judiciary especially do to control these crimes?
  1. See, you cannot completely eradicate crime. So we can just try to decrease the crime by bringing more strict laws and whatever laws we have should be implemented more strictly. So many a times especially in our judiciary system, it happens that there are hierarchy of courts. The person is first taken to the session court and if that person is convicted then also, he can go to high court then the matter is discussed there and if the alleged is not satisfied there then the matter is taken to the Supreme Court. Even if the decision is made then the alleged files for the security so this involves delaying of the matters for trial.

So, what I feel is that, we have sufficient laws in our country for almost every type of crime in our country. One important part is that you cannot overlap the system, if a person is accused or convicted, he has a right to file an appeal in high court or in the supreme court and to exhaust all legal remedies so the time that is being consumed in this matter, nothing can be done about it but establishment of faster courts is necessary. Many a times what happens is that the pendency of the cases in our country is used.

There are crore of cases of check bouncing in our country. Our society is becoming “litigant pro” society. Many people in the past were hesitated to approach the court but now, even for the slightest accusation of these people go straight to the court for justice and with more filing of cases, number of judges are not increasing but they are overburdened with lots of cases. So, appointment of new judges and establishment of new courts and making those courts to act fast is really very important. Because if a case takes 10 years in the lower court, then positive or negative whatever happens that person will go to higher court. Then there it will go for 4 to 5 years then they will approach the Supreme Court so it increases the pendency of the courts. But on the trial stage itself, let’s say from 10 years, the speed is reached to 1.5 years or 2 years, it will be a quick disposal of the case and the concerned party can get justice for the matter. So, appointment of new judges and establishment of new courts is the need of the hour and the need of the judiciary or the government.

By

Kashish Singhal