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Companies
Act 2013
Clause Gist of Provision Remarks Action Points
Other fields to be prescribed in Police, Cyber Forensic Experts,
Rules Data Analysts, Statistician,
Economists, Financial Analysts
etc may be specified with room
for flexibility
• Terms and conditions of service While specifying Term & conditions for experts, •Rules to be framed
of Director, Experts, other officers provision to be made for hiring consultants on •Structure of SFIO, Creation of
and employees to be prescribed contract basis for skill sets not available within the Permanent Cadre, New
government, Empanelment of CA/FA firm, Recruitment Rules, policy of
Appointment of Company/Public Prosecutors, encadrement to be specified
Legal Counsels •Delegation of power to
Director, SFIO to hire consultants
to be considered
Claus Gist of Provision Remarks Action Points
e
212(1) CG considers that A new notification to be prepared
investigation to be done with a fresh mandate for SFIO
by SFIO on the basis of
following:
• On receipt of report of
Registrar or Inspector u/s
208
• Passing of a special *A mechanism would be required
resolution by the company to facilitate this provision
• In public Interest *Public Interest has to be defined
• Any request from any *A coordination mechanism
Department of CG, State would be required to facilitate this
Government provision
CG assigns case to SFIO by an
order and Director, SFIO
designate Inspectors
Clause Gist of Provision Remarks/ Action Points
212(2) Once a case assigned to SFIO, Since Fraud now is comprehensively
no other agency of the defined only under the Companies Act,
Central or State Govt. shall no other agency will conduct
investigation relating to fraud defined
proceed in respect of any under the Companies Act
offence under this Act
Concerned agency shall transfer *A mechanism would be required to
relevant documents and records facilitate this provision. Coordination
to SFIO unit within SFIO to be set up
SFIO will submit a report to CG • MCA’s order assigning cases to SFIO
within such period specified in must mention the possibility of
the order extension.
• Will require a check list for MCA in
respect of procedural changes provided
for in the Act
Director, SFIO shall cause the • Concept of I O introduced
affairs to be investigated by an • IO will have the power of Inspector
Investigating Officer (IO) specified u/s 217
Clause Gist of Provision Remarks/Action Points
212 (6) Offences covered under sub‐sections (5) • Interplay between 447 and 212(6) is
and (6) of section 7, section 34, section 36,
subsection (1) of section 38, sub‐sections
significant
(5) of section 46, sub‐section(7) of
section56 sub‐section (10) of section 66, •Explanatory Note would be required
sub‐section (5) of section 140,, sub‐section
(4) of section 206, section 213, section
229, sub‐section (1) of section 251, sub‐
•Other Agencies/different authorities
section (3) of section 339 and section 448 within MCA involved in implementing
which attract the punishment for fraud some of these sections
provided in section 447 of this Act shall be
cognizable
Offences covered u/s 447 are the Offences covered are during the entire
following:
7(5) • furnishing any false or incorrect
life‐cycle of a corporation from
particulars of any information in any of the incorporation to winding up
documents filed with the Registrar in
relation to the registration of a company
7(6) • Furnishing any false or incorrect
information or representation or by
suppressing any material fact or
information in any of the documents or
declaration filed or made for incorporating
34 such company, or by any fraudulent action
• Misstatement in Prospectus
Clause Gist of Provision Remarks/Action Points
212 (6) Other offences covered u/s 447 are
the following:
•Knowingly, recklessly making any
36 statement, promise or forecast which
is false, deceptive or misleading,
deliberately concealing material facts
to induce another person to enter into
(a) agreement for acquiring, disposing,
subscribing, underwriting of securities
(b) agreement to secure profit from
yield of securities © agreement for
obtaining credit facilities from banks,
financial institutions
38(1) • Making application in fictitious name
for acquiring or subscribing to
securities, making multiple
applications, inducing companies to
allot, register or transfer securities
• Issuance of duplicate shares with an
46(5) intent to defraud
56(7) • depository or depository participant,
transferring shares with an intention to
defraud
Clause Gist of Provision Remarks/Action Points
212 (6) Other offences covered u/s 447 are
the following:
66(10) •Officer of a company (a) knowingly
concealing the name of any creditor
entitled to object to reduction of
capital;
(b) knowingly misrepresenting the
nature or amount of the debt or claim
of any creditor; or
(c) abets or is privy to any such
concealment or misrepresentation
140(5) • Auditor of a company against whom
final order has been passed by the
Tribunal for acting in a fraudulent
manner or abetted or colluded in any
fraud by, or in relation to, the
company or its directors or officers,
directly or indirectly
206(4) • where business of a company has
been or is being carried on for a
fraudulent or unlawful purpose
• Post investigation when ordered by
213 the Tribunal, if found that company
was formed with a fraudulent or
unlawful purpose, business conducted
to defraud creditors, any other person
Clause Gist of Provision Remarks/Action Points
Notwithstanding anything contained in this Act or While preparing the investigation report provisions
212(15) in any other law for the time being in force, the
investigation report filed withthe Special Court for of section 173 Cr.Pc. are to be complied .
framing of charges shall be deemed to be a report
filed by a police officer under section 173 of the
Code of Criminal Procedure, 1973.
Clause Provision Implementation
Notwithstanding anything contained in this Act or
217 (11) in the Code of Criminal Procedure, 1973 if, in the
•SFIO may be designated as Nodal Agency by MCA in
course of an investigation into the affairs of the relations to Corporate Frauds.
company, an application is made to the competent •Standard Proforma to be devised.
court in India by the inspector stating that evidence
is, or may be, available in a country or place
•MCA to enter into Agreements with the Government
outside India, such court may issue a letter of of Foreign States for reciprocal arrangements
request to a court or an authority in such country •Inter‐agency coordination with other nodal agencies
or place, competent to deal with such request, to
examine orally, or otherwise, any person, supposed like, CBI, ED to be worked out
to be acquainted with the facts and circumstances
of the case, to record his statement made in the
course of such examination and also to require
such person or any other person to produce any
document or thing, which may be in his possession
pertaining to the case, and to forward all the
evidence so taken or collected or the authenticated
copies thereof or the things so collected to the
court in India which had issued such letter of
request:
Provided that the letter of request shall be
transmitted in such manner as the Central
Government may specify in this behalf:
Provided further that every statement recorded or
document or thing received under this sub-section
shall be deemed to be the evidence collected
during the course of investigation
Clause Provision Implementation
220. (1) Where in the course of an investigation under The word ‘search’ is missing, which may cause
220 this Chapter, the inspector has reasonable grounds to
believe that the books and papers of, or relating to, any operational difficulties and may lead to litigation.
company or other body corporate (b) seize
books and papers as he considers necessary after
allowing the company to take copies of, or extracts from,
This section can’t be invoked in case of Company
such books and papers at its cost for the purposes of his Secretary, Auditors, Key Managerial Personnel,
investigation. though it can be invoked under section 209.
The authority to issue Search and Seizure warrant has
not been specified.
Clause Gist of Provision Remarks
447 any person who is found to be guilty of fraud, Any person found to be guilty of fraud as
shall be punishable with imprisonment
for a term which shall not be less than defined in this section is liable for
six months but which may extend to punishment
ten years and shall also be liable to fine
which shall not be less than the amount
involved in the fraud, but which may SFIO has to quantify amount involved in
extend to three times the amount Fraud so that fine can be determined
involved in the fraud: