India’s System of Cracking Down on Corporate Fraud is Designed to be Self-Defeating

There is a clear pattern in the way corrupt businessmen and pliant auditors are allowed to go scot free.

Will we ever see the services of some top bankers being terminated and some promoters, auditors, consultants being sent to jail in India? Credit: Wikimedia Commons

We should all be thankful to Punjab National Bank (PNB). It has finally made the elephant dance. While there are attempts to shift the blame to mid-level employees and the Reserve Bank of India (RBI), this is largely a part of the bigger game plan for the business to continue as usual while some noise is made in the short-run to allay the public’s fears and concerns.

This is a good time to remember that some statistics are more frightening than the size of the PNB scam.

In India, every four hours, one bank staffer is held for fraud. Between April 2013 and December 2016, all commercial banks, including private ones, lost Rs 66,066 crore on account of 17,504 frauds. Between January 2015 and March 2017, 5,200 bank staffers were punished for fraud. The biggest public sector bank (PSB), State Bank of India, can pat itself on the back. It has the dubious distinction of coming first here with a share of 30%.

If these statistics don’t scare you, just multiply them by a factor of 2. It’s a safe assumption that not more than 50% of fraud cases have been detected.

More frightening is the pattern that is emerging. The PNB and Nirav Modi-Mehul Choksi scam went undetected for seven long years. It came to light only when one of the key players involved in the scandal retired.

This is similar to another scam that has faded from public memory. Satyam, the largest accounting scam in the history of corporate India, also continued unabated for almost eight years till the founder chairman confessed in 2009.

Similarly, funds of more than Rs 1,200 crore were allegedly diverted from United Spirits between October 2010 and July 2014 and it came to light only much later when a team from PricewaterhouseCoopers, the UK, did a forensic audit. That for part of this period the audit was done by PriceWaterhouse, India, should not be missed.

Clearly, all the gatekeepers, be they the auditors, regulators like the RBI, the Institute of Chartered Accountants of India or market regulator SEBI, were blissfully or intentionally unaware of the fraudulent acts. Deloitte was the auditor to Modi’s holding firm Firestar International Pvt Ltd (FIPL) for two years and signed off the accounts for financial years ended March 2016 and March 2017. The audit reports for the past two years could not detect any scam at FIPL.

Whether the auditor was guilty of professional misconduct and negligence would be known only after the Serious Fraud Investigation office (SFIO) completes its investigations. The SFIO has currently been ordered by the Ministry of Corporate Affairs to investigate around 110 companies, including some listed ones, and about ten LLPs (limited liability partnerships) linked to Modi and Choksi.

Does SFIO have the necessary wherewithal? When is it likely to finish massive investigation? It’s not for nothing that Modi’s lawyer Vijay Aggarwal has already gone on record to state that probe agencies will not be able to prove charges against the jeweller in a court of law and that “like 2G Scam and Bofors matter, this case will also collapse”.

Giving Satyam and Modi-Choksi good company is the alleged diversion of funds from Fortis and Religare. It took a New York-based investor, Siguler Guff & Co, which has a 6% stake in Religare Finvest to allege that the promoters indulged in “diversion and siphoning” of $300 million (Rs 1,850 crore) to clear their personal debts.

The latest allegations are that the Singh brothers, promoters of Fortis Healthcare, a listed company, took away Rs 473 crore without board approval. The government has done the expected. The case has been referred to the SFIO, which was set up in 2003 to investigate major fraud cases. Until March 2017, the office has filed 1,237 cases in various forms. How many of them have resulted in convictions is anyone’s guess.

The government believes that SFIO is the panacea for all corporate evils and yet it does not itself take the agency seriously. Consider how alleged fraudsters were allowed to get away in the Satyam case despite being found guilty by SFIO and other regulators. The first case that it investigated was in respect of Chennai-based DSQ software. SFIO found DSQ software and its auditors, Lovelock and Lewes, an audit firm of the PriceWaterhouse network in India, guilty of manipulating share prices and falsification of accounts.

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In 2009 again, SFIO found two PriceWaterhouse partners guilty in the Satyam scam. Satyam and DSQ Software had one common audit signing partner – S. Gopalakrishnan. In the Satyam scam, besides the SFIO, the CBI and a special CBI court had found the auditors guilty and sentenced them to seven years in jail in 2015. Within a month, their sentence was suspended by a session court. CBI has not filed an appeal till date. Is this likely to serve as a deterrent for anyone?

PwC’s case is more curious on another account. A few months ago, Justice A. P. Shah, retired Chief Justice of Delhi high court, and chairman of the Citizens Whistle Blowers Forum wrote to the finance minister, prime minister and others highlighting various scams in which PwC was found guilty.

Amongst the many violations, including falsification of its own books of accounts, was a case of a benami transaction done by PwC which coincided with the time when the Satyam scam came to public light. Violations of the foreign direct investment (FDI) policy, Foreign Exchange Management Act, running into hundreds of crores, were also highlighted along with documentary evidence. Yet, no action has been taken. To add salt to the wound, it continues to be rewarded with government contracts even where there is a direct conflict of interest.

There is a clear pattern in the way the Lalit Modis, Vijay Mallyas and PwCs are allowed to go scot free. Perfunctory investigations are started against them when there is a huge public outcry. But the system is designed to eventually beat itself. The RBI is now being held accountable for the systemic defaults at PNB. And yet, the post of central bank deputy governor in charge of handling supervision of banks has been lying vacant for seven months.

PwC, which allegedly made a mockery of the controls in the banking system to flout FEMA regulations, had earlier been empaneled by RBI to conduct an audit of its information systems.

The Enforcement Directorate works with about 45% of its sanctioned workforce and keeps jumping from one case to another.  The findings of SFIO in other cases have not fructified in any sentencing by the courts so far. As public memory fades, so do the investigations and it is back to ‘business as usual’. One can only hope the SFIO investigation into the Modi and Choksi case does not meet the same fate.

Clearly, in India, deterrence is also not strong enough. Perhaps a cue can be taken from what Wells Fargo, one of the largest banks in the US, did. In September 2016, it announced that its CEO John Stumpf would forfeit outstanding stock awards worth about $41 million (Rs 250 crore) in response to the scandal involving unauthorised customer accounts. Stumpf had to also forego his salary.

Additionally, the bank announced that the former retail banking head Carrie Tolstedt had left the company and is forfeiting outstanding stock awards worth about $19 million (Rs 120 crore). It is noteworthy that these stiff measures were taken when there was no financial manipulation and the charges were yet to be proved.

Scams are not possible without the active connivance of the higher-ups. Will we ever see the services of some top bankers being terminated and some promoters, auditors, consultants being sent to jail in India?

The least we can do is not fool ourselves with such unrealistic expectations.

Sarvesh Mathur is a senior finance professional. He has earlier worked as the Chief Finance Officer of Tata Telecom Limited, PricewaterhouseCoopers (India).

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