This article has been written by Kumar Rajiv Ranjan, pursuing a Diploma in General Corporate Practices from LawSikho. The article has been edited by Amitabh Ranjan (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho)
While scrolling on social media, I came across a hilarious but thought-provoking message of Stand Up Comedian “Raju Srivastava”. The Quote was “I wish to lead a life of an anonymous person. Just waiting for my bank loan to get approved”. A bit satirical but there cannot be a more apt description of what is happening around us today and the helplessness of a common man. Bank frauds, siphoning out money through loans and subsequent default by corporate, online frauds and complete helplessness of authorities to make the recoveries effective or punishing the guilty persons is what we are witnessing every day.
Bank frauds have now become such a routine feature today that many banks are fast losing the confidence of the people as the most secure way of storing money. YES BANK case, PNB case or Nirav Modi Case, Vijay Mallya case are some of the glittering examples. And the case which has as recently as in August 2021 rocked our economy yet again is another plus 1000 crore embezzlement of funds by VMC Systems Limited and Punjab National Bank [PNB] is again at the central stage. The situation is day by day becoming gloomier and we do wonder whether there is any light at the end of a long drawn-out tunnel.
The RBI Annual Report 2019-20, has painted a very grim picture of the Indian Economy’s current state. It has been stated that despite the best efforts by the Government, the amount involved in frauds has gone up by a whopping figure of 159%. The RBI report further stated that during Financial Year 2019-20, banking sectors reported 8707 frauds involving a total of Rs 1.85 Trillion as against 6799 cases during 2017-18 involving 71543 Crores. The situation only slightly improved in 2020-21 as the value of the fraud was reported to be at Rs. 81901 Crores as per RBI Annual Report 2020-21.
But the corporate frauds with active connivance of banking personnel are just one mode of embezzlement of funds. With the banking operations becoming more and more digital, and physical forms of banking transactions getting substituted by digital and electronics mode, the fraudsters are every day devising new methodologies for siphoning out precious public money/hard-earned money of common people.
We are witnessing ATM frauds through the cloning of ATM Cards. Fraudsters are often successful in deciphering the PIN or SECURITY CODE. System hacking has become too frequent and if what is happening today is not arrested, soon the banking structure may collapse and the entire economy shall be doomed. We have already witnessed how YES BANK has failed and also witnessed how PNB is struggling. Today we are sitting atop a volcano, uncontrolled siphoning of money shall have a catastrophic effect and it may be sooner than later.
To analyze what is happening around us, let us first analyze what changes have been brought into the banking system in the new digital world.
Evolution of banking structure: from physical to digital
The entire banking system has undergone sea changes during the last twenty years. Gone are the days of long queues at bank counters, cumbersome processes, physical transactions etc. Our banking system has quite successfully and most efficiently embraced the digital world. In the era of e-banking, new modes of transactions like RTGS [ Real-time gross settlement],NEFT [National electronic fund Transfer], ECS [Electronic cleaning services], EFT [ Electronic Fund Transfer] have emerged. Bank passbooks have now been replaced by NET BANKING. Physical cheque books have now been replaced by e-cheques.
Bills of exchange, promissory notes being a significant instrument of money transfer under Negotiable Instruments Act are fast becoming obsolete. Fund transfer has now become fully electronic with modes like POS transactions, online transactions, Debit and Credit Cards, ECS mandate, transfer through ATM channels embracing the banking system. With the fast development in electronics and computer hardware as well as software, various user-friendly apps like SBI YONO, PAYTM ,BHIM UPI have been embraced by the Banking Sector. Banking transactions have become fast beyond imagination. Now the entire world has come under your fingertips with USER ID and PASSWORD mode of banking transactions becoming our everyday routine.
But the more technologies we are embracing, we are also witnessing its abuses in the digital world with the fraudsters developing more and more skills and technologies for duping banks as well as our hard-earned money. Events of ATM Cloning, deciphering PIN and passwords, phishing or fraudulently influencing customers to give their own information and thereafter duping money from their account is happening almost every day. These frauds are still more individual-centric and do not have much impact on the economy as a whole.
However, more organized and systemic banking frauds, that we are witnessing, are in the corporate world with the active connivance of the banking personnel which is eating into our economic systems like white ants and cancers and required to be paid more attention to. Hacking of the system is another big challenge that is required to be addressed considering the fact that Artificial Intelligence [AI] is fast becoming the new watchword in the digital world and we are required to equip ourselves accordingly otherwise the concerned banking sector may go the NOKIA WAY. Not long ago, NOKIA was the most prestigious brand in the mobile world but they were not receptive to the changes taking place in the electronics world and soon they were outsmarted and outscored by APPLE, Samsung and scores of Chinese mobile companies with highly advanced systems and highly user-friendly interface.
As a result, NOKIA went out of the market. So, in the fast-changing electronics and computer world, the banking sector management should be highly receptive to the changes taking place around them and exhibit sufficient flexibility to survive, adopt the new technologies and remain competitive. However, any mega banking fraud due to hacking of the system or use of Artificial Intelligence has not been reported as yet.
Non-corporate banking frauds in digital world: an analysis
As stated in the preceding paragraph, banking frauds in the digital world today may be categorized into two heads:
- Non-corporate e-banking frauds
- Corporate banking frauds
Non-corporate e-banking frauds are not as dangerous as far as their impact on the economy of the country is concerned. It is more individual-centric. For the persons, however, suffering such damages at the hands of the fraudsters, the impact may be catastrophic. Considering the criminality of such acts, these are required to be also handled strongly as per applicable criminal laws to send a strong message. Some types of e-banking frauds which do occur regularly in our everyday life are being enlisted below:
1. Stolen or lost credit/debit card and its abuse by fraudsters.
2. Cloning of debit/credit cards.
3. Phishing or fraudulently influencing customers to give their own information and thereafter duping money from their account.
4. Stolen PIN numbers and banking passwords
5. Hacked accounts and mobile apps
6. Stolen CVV and OTP number.
7. Online shopping frauds. In such cases, fraudsters set up fake online shopping platforms.
8. Luring people to share their confidential information like AADHAR details, ATM PIN, Account password e.t.c. in the name of some attractive gifts or lottery and duping money thereafter.
But, as I have stated above, the impact of these frauds are not as heavily felt as in cases of fraudulence by body corporate as in the cases listed above, mostly the impact is individual-centric and the amount involved is not as big as in cases of corporate frauds and corporate defaults.
Corporate banking frauds in digital world: an analysis
As I have stated in the preceding paragraphs, it is the Corporate Banking frauds that are more challenging as their impact on our economy and banking system is catastrophic. The collapse of YES BANK is one such example. Normally such frauds do happen in the form of bank loans or abuse of banking instrumentalities with the active connivance of some insiders in the banking systems. For such frauds, the Corporates use their guile and professional expertise as they present before the banking authorities highly inflated financial statements which are accepted by the banking authorities on its face value without much verification.
The Satyam case and misdeeds of its CEO B Ramalinga Raju is a big example of how an organization’s financial statements can be altered to present a very rosy picture while the actual scenario was much different and this case is a big blot on corporate governance in India. I would also consider some big names in the world of financial sectors, Chartered Accountants, Cost Accountants, Company Secretaries equally responsible as all these financial statements are duly audited and signed by them.
These inflated statements are used to obtain Loans running into multi-crores of Rupees or some other banking instrumentalities like BG [Bank guarantee], LoC [Letter of Credit/Letter of Comforts] e.t.c. which are abused by such corporate houses for furthering their business goal and at the same time, they easily become defaulters sending the lending bank into a deep mess as they are left with not much grounds to recover.
Mostly, it is the Public Sector Banks [with an exception to Axis Bank and Yes Bank in few cases] which found itself at the receiving end and thereafter, the battle in the form of filing of FIRs, investigation by CBI, long extended battle in courtrooms begins while the fraudster Corporates peacefully enjoy their time, mostly in some other country of their choice and ably assisted by a team of high profile lawyers and financial experts in court room’s battles.
To understand the modus operandi of these corporations, let us examine a few cases in detail.
Case study no.1 : the case of VMC systems limited, Hyderabad
The corporate world was rocked in early August 2021 when a news item appeared that the Enforcement Directorate arrested Vuppalapati Hima Bindu, Managing Director of VMC Systems Limited, Hyderabad in connection with the 1700 crores Punjab National Bank [PNB] loan fraud case. This case was also a classic example of bureaucratic latches and delays as it was in September 2018 when CBI registered an FIR against the company and V Hima Bindu, Rama Rao and Ramana charging them with criminal conspiracy, cheating and forgery but the first arrest of Hima Bindu was made nearly three years later in Aug’2021.
VMC systems Limited, Hyderabad is a telecom equipment manufacturing company based in Hyderabad which was incorporated in February 1997 with an authorized share capital of Rs 65 Crores and paid-up capital of Rs 50 Crore. In 2018, when the case was registered, it had pending dues of Rs.33 Crores only which was to be received from BSNL but the Company declared this figure at 262 Crores which was accepted by PNB authorities without proper verification.
The company had claimed certain receivables from other private companies also were found out to be false. These inflated and false financial figures were used by VMC Systems Limited to secure loans from PNB and a consortium of some other banks. At the time of filing of the charge sheet by CBI, VMC Systems owed Rs. 539 crores to PNB and 1207 Crores to a combination of State Bank of India, Andhra Bank and JM Financial assets Reconstruction Company. VMC Systems defaulted on repayment of loans and the outstanding liability has now swelled to Rs.3316 Crores which is to be paid by the defaulting Company to the consortium of Public Sector Banks.
CBI enquiries further revealed that VMC circulated loans to various related entities to inflate its books e.g., PISL, a related entity was given 3% commission from all receipts from BSNL even though it did not have any role in state run’s BSNL tenders.
It was also found that VMC had obtained various letters of credits [LoCs] worth Rs. 692 Crores in the name of fake/dummy entities which were subsequently transferred and passed over to other entities. The Company had also created false/exaggerated operational revenues by generating fake sales/ purchase invoices through companies controlled by their Directors/family members to dodge the banks. A part of the proceeds was also remitted by V Hima Bindu to overseas entities controlled by her family members.
The investigation still continues.
Case study no.2: the case of Nirav Modi and Mehul Choksi: PNB scam 2018
Nirav Modi, once a big name in the Diamond business, is a fugitive businessman today charged by Interpol and the Government of India for criminal conspiracy, criminal breach of trust, cheating, dishonesty, money laundering, and breach of contract. The fraudulent manner in which Punjab National Bank [hereinafter referred to as PNB] was cheated rocked the nation in 2018 and today the fraud is estimated at over USD 2 Billion. This PNB Scam is related to the issuance of fake Letters of Undertaking [LoU] by the Bankers at PNB’s Brady House Branch in Fort, Mumbai. These LoUs were opened in favor of branches of Indian Banks in overseas destinations for the import of pearls and other costlier stones for a period of One Year even though the RBI had prescribed a total time period of 90 days only from the date of shipment. But these guidelines were bypassed by the overseas branches of Indian Bank and they did not even share what documents/ records were made available to them by the diamond merchant/his firms at the time of availing credit guarantee from them.
These loopholes in the working of the Banking System were wonderfully exploited by Nirav Modi, his uncle Mehul Choksi & their team as they successfully obtained a total of 1212 LoUs within a period of 74 months from his first fraudulent guarantee which he obtained from PNB on March 10, 2011.
For the purpose of this fraud, PNB employees, who had joined hands with Nirav Modi, had abused the international banking financial communication system SWIFT from PNB banking network to send messages to overseas branches of other Indian banks, including Allahabad Bank, Union Bank of India and Axis Bank on fund requirements for which the banking personnel used their allotted SWIFT Password but the transactions were never recorded in the core system of the Bank. As a result, the top management of PNB remained oblivious of what was going on.
Further, Nirav Modi obtained LoUs mostly in favour of dummy firms that were operating from the British Virgina Island and the fund received through fraudulent LoUs was transferred into their account.
Somehow, the fraudulent manner of fund withdrawal came to the notice of top management of PNB and they filed a formal FIR with CBI on 29th January 2018 admitting a bank fraud worth Rs 2.8 Billion making Nirav Modi, Ami Modi, Nishal Modi and Mehul Choksi, all partners of M/s Diamond R US, M/s Solar Exports and M/s Stellar Diamond, as the Prime accused.
The matter is under investigation by CBI, ED and also by INTERPOL and through subsequent investigation, the value of the scam has now ballooned to over Rs. 14000 crores.
Mr Nirav Modi is still evading his arrest and we are in the middle of a long extended legal battle for his extradition to India.
Case study no. 3: the case of Vijay Mallya
Vijay Mallaya, once a ROCKSTAR business Tycoon is today a fugitive businessman charged with a bank loan default case of over 9000 Crores which involved his now-defunct Kingfisher Airlines. This is rather a simpler case where a consortium of Banks, led by the Public Sector giant, State Bank of India, kept on extending loans without the exercise of due diligence as a result of which the loan amount swelled to over 9000 Crores and Vijay Mallya’s UB group [ United Breweries Holding Limited] become a defaulter. The problem compounded with the failure of Kingfisher airlines and finally the Consortium of Banks filed a criminal case against Vijay Mallya.
The lack of wisdom by Banking authorities reflected from the fact that the news of business failures of Vijay Mallya kept appearing in newspapers since early 2000 but, the Banks, a total of 17 in number, kept lending loans to him to meet his need of extravagant business expansion. From the loans obtained, he bought Deccan Airlines and merged it with Kingfisher Airlines but the Project turned out into a misadventure. At one point in time, the company ran out of cash and was not able to even pay salaries to its employees.
His Company Kingfisher also held back service tax as realized from passengers, PF recovered from the employees, Income Tax recoveries made at source as it was left with no money to deposit the same either with IT Department or with PF authorities. At one point in time, SBI declared Kingfisher Group Bankrupt but other Banks kept extending Loans to him and one attributable reason according to many Financial Observers is the fact that he was also a two times Member of Parliament in the upper House and had very close connections with the power centres in the government, both in his state in Karnataka as well as at centre in New Delhi.
This case is also being investigated by CBI and ED but Vijay Mallya himself fled to the UK. In June’21, ED issued a statement stating therein that the Banks had recovered Rs 1357 Crores by the sale of the shares which were attached under the Prevention of Money Laundering Act [PMLA] by ED. Like Nirav Modi, he is also facing an extradition case in the UK.
Case study no.4: Yes Bank fraud case and DHLF
The rise and fall of Yes Bank is a perfect example to demonstrate what damages the deadly tentacles of mismanagement and banking frauds may cause to the Banking Sector. It is yet again almost the same story. Uncontrolled extension of loans which became bad loans, the parties becoming defaulters very coolly and the banking system collapsing as it failed to garner sufficient capital for its retrieval. The Yes Bank was incorporated in November 2003 and it started its operation in August 2004. Very soon, it became one of the leading Private Sector Banks. From its very inception, it started extending corporate loans lending aggressively to the corporate houses by compromising on prudence.
This aggressive lending policy led to NPA [Non Performing assets] stress from as early as 2015 with the majority of the loans extended becoming BAD LOANS as the Corporate debtors started defaulting. Major debtors like Reliance Group led by Anil Ambani have now become bankrupt, Cox and Kings failed and DHLF, which has a lion share of the Bad Loan, became serious defaulters. As per the reports of the ED, YES BANK disbursed nearly Rs.20000 Crores of Bank Loans to Corporates without following the RBI Guidelines. The Bank bought debentures from DHLF worth Rs.3700 crores and in return thereto, DHLF booked loans to a Company owned by the daughter of Bank’s owner Rana Kapoor against a mortgage worth Rs 40 Crores. This has been considered by CBI as bribery given by DHLF to Rana Kapoor and his family on a quid pro quo basis and a case was registered by CBI in 2020 for alleged cheating, fraud, criminal conspiracy in sanctioning of loans by YES Bank in exchange for receiving bribes from DHLF promoters Dheeraj and Kapil Badhwan.
All this suspicious dealing finally caused the exit of Mr. Rana Kapoor from YES Bank at RBI instructions in 2019. Presently, all operations of YES BANK are under serious restrictions as imposed by RBI.
And the list goes on and on and on as there are many such cases.
Defining fraud from a legal angle
Now, to find out the legal remedies, first of all, we shall have to understand what banking fraud means. Such frauds are an outcome of transactions wherein one party by fraudulent and dishonest means wrongfully gains and the other party wrongfully loses. It is different from misappropriation or embezzlement. In the case of the State of Maharashtra through CBI Vs Vikaram Anantrai Doshi & others,it was observed that banking frauds cannot be put in the same bracket as an individual or personal wrong rather it is a social wrong. The Indian Penal Code, 1860 does not define the term “fraud” exclusively however certain provisions of the said Code are always applied while handling bank frauds. The Indian Contract Act, 1872 handles the subject of Agreements and Contracts and its Section-16 coined the term of “influence in contracts” which can be considered as a lesser degree of fraud but in an extension of very high valued bank loans to big corporate personalities like Vijay Mallya, influence and political clout play a very important role.
In Oriental Bank Corporation Vs John Fleming, the Court categorically analyzed the concept of constructive fraud. Surprisingly, the Banking Regulation Act, 1949 does not deal with banking frauds directly which is a big deficiency of the act and the fraudsters are taking advantage of these big loopholes. The Information Technology Act, 2000 introduced a new domain of technology-related offences and Section 94, of the Act also amended certain provisions of RBI Act, 1934 and the concept of digital forgery, unauthorized access to the computer networks, data alteration, skimming and online identity theft and impersonation were included. Payment and Settlement Systems Act 2007 was also introduced for controlling and curbing online transactions frauds.
Conclusion and suggestions
In India, the e-banking mode of transactions is maturing slowly but steadily. It is also cost-saving and time-saving. The banks are obliged to maintain the secrecy of customers’ accounts and RBI also provides regulations and guidelines for reducing the risks of hacking but many a time, these guidelines are not taken seriously, thus resulting in fraud. The general public deposits their money for security purposes and this trust is broken whenever such fraud occurs. However, as I have repeatedly stated, the dimension and impact of individual-centric e-banking frauds are not as catastrophic. Except, some personal losses, it shall not affect the Indian economy much. Still, it is a criminal offense that is required to be dealt with strongly as per the criminal laws to control and curb this growing menace. Both Banks and the individual concerned are required to be extremely cautious and conscious not to fall prey to such fraudsters. Banks shall be also required to regularly update their security control system to check any unauthorized entry into their systems. The customers and general public shall be also required to keep altering their security password at regular intervals and in no case, it shall be shared with any outsider.
However, despite all precautions and taking recourse to different online security systems, if someone still suffers a banking transaction fraud at the hands of the fraudster, the matter should be forthwith reported to the Bank as well as the cyber cell of the police so that appropriate action for nabbing the fraudster may be taken by the Police and Banking Authorities should also work towards improving the existing securities.
But, the bigger menace is the corporate banking frauds which are extremely damaging as the value of a single fraud alone may be around 1000 Crores. In 2021 alone, 13 bank frauds, each of a value of more than 500 Crores, were reported by the State run Banks to have taken place up to June’21 itself as per a written reply tendered by Union Minister for Finance before Rajya Sabha [ Upper House]. It was further stated in the reply that such types of cases were 79 in 2019-20 and 73 during 2020-21.
In all these frauds, almost similar methodology is adopted; that is forged financial statements, use of forged instruments, manipulated books of accounts, borrowing of funds against fictitious accounts, unauthorized credit facilities, fraudulent foreign exchange transactions and managerial failures at the stage of credit sanctions/disbursement. Considering all these, some preventive measures, tightening of administrative setup, enactment of new rules e.t.c. would be required and a few suggestions are recorded herein below:
1. For handling e-banking frauds of smaller magnitude and for handling online transaction offences, there are now separate provisions under the Payment and Settlement Systems Act-2007 but to expedite the settlement process with legal force, it is suggested that Section-25 of Payment and Settlement Systems Act-2007 may be linked with Section-138 of NI Act which handles cheque bounce cases. Additional provisions may be included allowing electronic mode of communication of demand notice by Payee/Holder in due course to the Drawer, electronic filing of complaints before the competent court in cases of failure of payment by the drawer to the payee either in physical or electronic mode. Appeal against conviction may be filed in electronic mode and Court proceedings may be also conducted electronically with provisions for online tracking by complainant/ defendant through the case and individual-specific password.
2. Better professional management and appointment of professional experts to handle business transactions of high values may be given a thought.
3. There are also shifts in focus from social banking to profit-making leading to more and more corporate business financing but as our experience of YES BANK speaks, such uncontrolled lending is required to be handled with care and some prudence is needed.
4. There must also be an upper limit of lending linked with paid-up share capital and free reserve of the company to avoid the loan becoming non-recoverable in the event of default by the debtors. The provisions of the Companies Act, 2013, RBI Guidelines may be accordingly modified thereby putting a cap on external borrowing.
5. The legal system is also required to be made more robust to handle bank fraud cases. There are a large number of legislations but still not a single legislation to handle bank fraud cases alone. The parliamentarian should pay attention to this aspect.
6. The Vigilance System has to be strengthened as it has been observed that a number of bank fraud cases have taken place due to the involvement of internal employees. Penal provisions and penalties are required to be made more stringent.
7. The institution of Independent Directors may be strengthened with appointment only from the Data Bank of Registered Professionals maintained by IICA [ Indian Institute of Corporate affairs.
8. Penal actions provisions may be included in our existing laws for taking actions against Auditors/ Auditing Firms/Chartered Accountancy firms/Company Secretaries/Financial Experts who play a major role in presenting inflated and fraudulent Financial Statements of the Companies owned by Corporates enabling them to borrow from the outside market including Banks an unreasonable amount without having the capacity to repay. This uncontrolled borrowing and lending have to be controlled very strictly.
9. Compulsory auditing at the bank level also of the financial statements submitted by the Prospecting Debtors before any loan is extended. Guidelines in this regard have been issued by RBI/Govt of India after PNB fraud was unearthed in 2018.
10. Examination of every NPA valued at more than 25 Crores and the report to be kept as a reference point before extending a second credit/ loan to the Corporate Houses.
11. Completely banning LoC [ Letter of Comfort/letter of Credit] and LoU[ Letter of Undertaking]
12. Revision in the Companies Act, 2013, issuance of Fresh SEBI Regulations and other measures by the Government of India making the Penal Provisions stringent.
13. In every insolvency proceedings before NCLT, the recovery of the Principal amount has to be considered paramount by the Judicial System to lend support to our banking system.
14. Other Statutory Measures. Introduction of Fugitive Economic Offender Act, 2018 was a welcome step as this Act was introduced to deter economic offenders from evading the process of law by remaining outside the jurisdiction of Indian Courts as we are witnessing in the cases of Nirav Modi and Vijay Mallya etc.
15. Development of a scientific system for early detection of fraud cases. In the annual reports of RBI, it has been stated that the average lag between the date of occurrence of frauds and their detection by banks and financial institutions was 24 months during 2019-20. This lag time was even more in cases involving a huge amount of money which is a matter of huge concern.
These are some of the suggestions to curb and control the menace of Corporate Bank Frauds which is fast eating up into our economy and the collapse of YES Bank, the failure of Kingfisher Airlines and the woes suffered by their employees are just a few examples of howdamaging it could be if the entire banking sector collapses due to cash crunch as most of the loans extended to Corporate houses are fast becoming NPA[ Non-performing Assets].
1. RBI Report 2019-20 as published in Business standards by Subrata Panda & Anup Roy.
2. RBI Report 2020-21 as e-published in livemint.com
3. VMC Systems Case and arrest of its MD Hima Bindu by ED
as published in Indian Express dated 06th Aug’2021
4. PNB Scam and Nirav Modi: From Business Standard and Wikipedia
5. Vijay Mallya Case: As published in Business Standard
6. YES BANK SCAM: As published in online Law Journal NJLRII
7. 13 fraud Cases over 500 Crores each reported by Govt Banks
till June’21:Says Finance Minister- A digital News published in
ET Now Digital dated 28th July’21.
8. The SATYAM SCANDAL: A Case Study as e-published in Lexforti
Legal News Network dated April 23’ 2020
9. “Why did NOKIA Fail…….” By Brand Minds as published in Magazine MULTIPLIER
10. Oriental Bank Corporation Vs John Fleming: A case study by Arun Kumar
published by Lawkaran Consultancy
11. State of Maharashtra through CBI Vs Vikram Anantrai Doshi
& others: From Indiankanoon.org
12. The Contract Act, 1872
13. Negotiable Instruments Act, 1881
14. India Penal Code, 1860
15. RBI Act, 1934
16. Banking Regulation Act, 1949
17. Information Technology Act, 2000
18. Fugitive Economic Offender Act 2018
19. The Companies Act, 2013 & some other references not quoted.
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