Money laundering is a process where the origin of funds generated by illegal means is concealed (drug trafficking, gun smuggling, corruption, etc.). The objective of the operation, which usually takes several stages, consists of making the capital and assets that are illegally gained seem as though they are derived from a legitimate source, and inserting them into economic circulation. Money laundering is not a new phenomenon: it’s as old as crime itself. Criminals have always endeavoured to conceal the origin of illegally generated funds in order to erase all trace of their wrongdoings. Nevertheless, the forms and dimensions of this type of crime have evolved in recent years. Since the seventies, the escalation of the drug market and globalization of organized crime have led to a collective raised awareness with regard to the problem of money laundering.
The banks are not the only the means used to conceal the criminal origin of capital assets. Since all bank transactions can be reconstituted and the criminal judge can conduct investigations on them, they are not particularly suited for money laundering. That is why money launders tend to operate through fictive companies, casinos, restaurants, jewelry stores, car dealers and art agents, as well as import-export operations.
According to the IMF report the turnover of this industry is around $1.5 trillion. Parliament of India has adopted the Prevention of Money Laundering (Amendment) Bill, 2009. The Prevention of Money Laundering Act, 2002 (PML Act) was enforced in 2005 to prevent money laundering and provide for attachment, seizure and confiscation of proceeds of crime obtained, directly or indirectly from such activities. The law checks the use of black money for financing terror activities. Financial intermediaries like full-fledged moneychangers, money transfer service providers such as Western Union and International Payment gateways including VISA and MasterCard have also been brought within the ambit of the Prevention of Money-Laundering Act enacted in 2002. The passage the above mentioned Bill will enable India’s entry into the Financial Action Task Force (FATF), an inter-governmental body that has the mandate to combat money laundering and terrorist financing.
As per the provisions of the Act, every banking company, financial institution (which includes chit fund company, a co-operative bank, a housing finance institution and a non-banking financial company) and intermediary (which includes a stock-broker, sub-broker, share transfer agent, banker to an issue, trustee to a trust deed, registrar to an issue, merchant banker, underwriter, portfolio manager, investment adviser and any other intermediary associated with securities market and registered under section 12 of the Securities and Exchange Board of India Act, 1992) shall have to maintain a record of all the transactions; the nature and value of which has been prescribed in the Rules under the PML Act.
Such transactions include:
All cash transactions of the value of more than Rs 10 lacs or its equivalent in foreign currency.
All series of cash transactions integrally connected to each other which have been valued below Rs.10 lakhs or its equivalent in foreign currency where such series of transactions take place within one calendar month.
All suspicious transactions whether or not made in cash and including, inter-alia, credits or debits into from any non monetary account such as demat account, security account maintained by the registered intermediary.
Articles 305a and 305b of the criminal procedure code were entered in force w.e.f. 01.08.1990.
Article 305a takes punitive action against money laundering, which is defined as any act of hindrance to the identification, search or confiscation of capital assets of criminal origin. Money laundering is punished, regardless of where the major offense took place.
Article 305b punishes the lack of vigilance in financial transactions, particularly the failure to verify the beneficial owner. Professional financial intermediaries are bound by what is referred to as the Know your customer principle, and are required without fail to identify the true owner of the funds, who is known as the beneficial owner. Negligent identification of the contracting partner or establishing the beneficial owner is punishable.
Each registered intermediary should adopt written procedures to implement the anti money laundering provisions as envisaged under the Anti Money Laundering Act, 2002. Such procedures should include inter alia, the following three specific parameters which are related to the overall ‘Client Due Diligence Process’:
a. Policy for acceptance of clients
b. Procedure for identifying the clients
c. Transaction monitoring and reporting especially Suspicious Transactions Reporting (STR)
In order to control money laundering the registered intermediaries should have adequate screening procedures in place to ensure high standards when hiring employees. They should identify the key positions within their own organization structures having regard to the risk of money laundering and terrorist financing and the size of their business and ensure the employees taking up such key positions are suitable and competent to perform
their duties. The registered intermediaries must provide proper anti-money laundering and anti-terrorist financing training to their staff members.
In the far lands of Switzerland the Swiss criminal code punishes any offense committed within the context of organized crime (money laundering, corruption, fraud, drug trafficking, gun smuggling, etc.). In the course legal proceedings, a Swiss judge can order the banks to lift bank secrecy in order to obtain information on certain accounts. Thus, bank secrecy is not an obstacle in the fight against organized crime.