Money Laundering is the process of transforming the proceeds of crime and corruption and illegal trade practices into ostensibly legitimate assets. However, in a number of legal and regulatory systems, the term money laundering has become conflated with other forms of financial crime, and is sometimes used more generally to include misuse of the financial system.
The focus of money laundering is, primarily, that of hiding money or assets from the state – either from blatant confiscation or from taxation – and, indeed, from a combination of both. And, of course from those seeking to enforce judgments in civil cases or to follow the money that results from other crime. It is interwoven with the history of trade and banking.
How is the offence of money laundering committed?
Money laundering offences have similar attributes and features world wide. However there are two key elements to a money laundering offence :
- The necessary act of laundering itself i.e. the provision of financial services; and
- A requisite degree of knowledge or suspicion (either subjective or objective) relating to the source of the funds or the conduct of a client.
The act of laundering is committed in circumstances where a person is engaged in an arrangement (i.e. by providing a service or product) and that arrangement involves the proceeds of crime. These arrangements include a wide variety of business relationships e.g. banking, fiduciary and investment management.
The requisite degree of knowledge or suspicion will depend upon the specific offence but will usually be present where the person providing the arrangement, service or product knows, suspects or has reasonable grounds to suspect that the property involved in the arrangement represents the proceeds of crime. In some cases the offence may also be committed where a person knows or suspects that the person with whom he or she is dealing is engaged in or has benefited from criminal conduct.
Indian Act on Prevention of Money Laundering.
Prevention of Money Laundering Act, 2002 is an Act of the Parliament of India enacted to prevent money laundering and to provide for confiscation of property derived from money-laundering. PMLA and the Rules notified there under came into force with effect from July 1, 2005. The Act and Rules notified there under impose obligation on banking companies, financial institutions and intermediaries to verify identity of clients, maintain records and furnish information in prescribed form to Financial Intelligence Unit – India (FIU-IND).
The Central Government in consultation with the Reserve Bank of India has framed rules called the Prevention of Money-laundering (Maintenance of Records of the Nature and Value of Transactions, the Procedure and Manner of Maintaining and Time for Furnishing Information and Verification and Maintenance of Records of the Identity of the Clients of the Banking Companies, Financial Institutions and Intermediaries) Rules, 2005 (PMLA Rules).
Further SEBI has specified guidelines vide their circular ISD/CIR/RR/AML/1/06 dated January 18, 2006 & circular No ISD/AML/CIR-1/2008 dated 19th December, 2008 for the intermediaries registered with SEBI u/s 12 of the SEBI Act. The guidelines have been framed under Rule 5 of PMLA Rules for maintenance of information in respect of transactions with its client referred to in rule 3 of PMLA Rules.
SEBI and RBI are actively working and issuing guidelines, Circulars for the required amendmends and modifications from time to time to prevent the country from the adversity caused due to Money-laundering .
SEBI and RBI are covering issues related to Know Your Client (KYC) norms, Anti- Money Laundering (AML), Client Due Diligence (CDD) and Combating Financing of Terrorism (CFT). The directives lay down the minimum requirements and it is emphasized that the intermediaries may, according to their requirements, specify additional disclosures to be made by clients to address concerns of money laundering and suspicious transactions undertaken by clients.
The Active Work of SBI and RBI has not limited the country to follow and recognize a “one-size- fits-all” approach as it may not be appropriate for all type industry in India, Every concerned Industries should consider the specific nature of its business, organizational structure, type of customers and transactions, etc. when implementing the suggested measures and procedures to ensure that they are effectively applied. The overriding principle is that the said industries should be able to satisfy themselves that the measures taken by them are adequate, appropriate and follow the spirit of the measures and the requirements as enshrined in the Prevention of Money Laundering Act, 2002 (PMLA).
Organisation/Industry & Management Systems of working in Consistency with Prevention of Money Laundering Act, 2002
In light of the said Prevention of Money Laundering Act, 2002 and various circulars, Amendmends and Guidlelines issued from time to time, the Industries and its representatives shall adopt appropriate policies and procedures for the prevention of money laundering and terrorist financing and ensure their effectiveness and compliance with all relevant legal and regulatory requirements. The Board of the Directors of the said Insudtries or any other person or a group of persons as may be asked by the Board will:
- ensure that the content of these Guidelines are understood by all staff members
- regularly review the policies and procedures on prevention of money laundering and terrorist financing to ensure their effectiveness
- adopt customer acceptance policies and procedures which are sensitive to the risk of money laundering and terrorist financing
- undertake customer due diligence (“CDD”) measures to an extent that is sensitive to the risk of money laundering and terrorist financing depending on the type of customer, business relationship or transaction; and
- develop staff members’ awareness and vigilance to guard against money laundering and terrorist financing.
In my views apart from the aforesaid discussions the organisation/ Industries should always focus on EMPLOYEES’ HIRING, Hiring should be done having adequate screening procedures to ensure high standards when hiring employees. They shall 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.
In addition to the Employees Hiring, EDUCATION / TRAINING OF EMPLOYEES should be done on the regular basis, organisation/ Industries should educate employees at their offices in relation to changes brought about in the Money Laundering Act, 2002.The Company shall forward to its employees a copy of the Policy together with the PMLA Act for their knowledge and reference on time to time basis.
The said organisation/ Industries should always conduct training programme so that the employees are adequately trained in various procedures related to the Prevention of Money Laundering. Training requirements should have specific focuses for frontline staff, back office staff, compliance staff, risk management staff and staff dealing with new clients. It is crucial that all those concerned fully understand the rationale behind these directives, obligations and requirements, implement them consistently and are sensitive to the risks of their systems being misused by unscrupulous elements.
According to me one of the most important Point that should be nation wide followed is conducting INVESTORS EDUCATION. Implementation of Anti Money Laundering (AML) measures requires certain information from investors which may be of personal nature. Such information may include documents evidencing source of funds/income tax returns/bank records etc. This can sometimes lead to raising of questions by the client with regard to the motive and purpose of collecting such information. In such cases Organisations/ Industries are required to educate the Clients as and when required for, with the objectives of the AML programme adopted by the said Organisations/ Industries.
So, In my view there should be a better framework, that can make the above said process easier, The infromations required by the organisations should be procured in a transparent manner, more predictable so that the root cause of money laundering can be removed. The Organisations should be smart enough to lay down procedures and policies to avoid unfair practices which weaknes the economy for the present and future generations.