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Shardul Amarchand Mangaldas & Co

AMARCHAND TOWERS, 216 OKHLA INDUSTRIAL ESTATE, PHASE 3, NEW DELHI 110 020, INDIA
Tel:
Work +91 11 4159 0700
Fax:
Fax +91 11 2692 4900
Email:
Web:
www.amsshardul.com
Ahmedabad, Bangalore, Chennai, Gurugram, Kolkata, Mumbai and 1 more

Lawyer rankings

Anuj Berry

Tel:
Work + 91 11 4159 0700
Email:
Web:
www.amsshardul.com
Shardul Amarchand Mangaldas & Co

Work Department

Litigation, Dispute Resolution, White Collar Defense Group

Position

Anuj joined Shardul Amarchand Mangaldas in 2006 and is a Partner with the Firm’s Litigation, Dispute Resolution and White Collar Defence Group. Anuj specialises in all issues of national and international white collar crime, fraud, corruption and regulatory enforcement investigations. He specialises in internal investigations as also investigations by federal anti-corruption and anti-money laundering authorities. Anuj has recently been ranked as ‘Leading Individual’ for White Collar Crime by The Legal 500 Asia Pacific Guide 2019.

Anuj has represented multi-national corporations in large and politically sensitive anti-corruption and anti-money laundering investigations having a cross border element. His work involves assisting clients and senior management in all aspects of the investigation, guiding defence strategy and representation before Courts or in investigations before regulatory and government bodies. He also assists in internal trainings and advisory on the area of white collar crimes, both for management and personnel.

His key work experience on White Collar Defence matters is as under:

  1. Representing a large US based foreign retailer in investigations and court related action concerning the first investigation initiated against a private company by the Central Vigilance Commission in India. The investigations in India relate to an ongoing FCPA investigation in the United States of America.
  2. Advising a French defence manufacturer with regard to Indian enforcement action arising out of alleged corruption allegations in the supply of advanced fighter jets to the Indian Air Force.
  3. Advising an American multinational conglomerate company on an internal investigation arising out of a whistle blower complaint raising allegations of payment of bribes and kickbacks to vendors
  4. Representing the Chairman Emeritus of a large Indian multinational conglomerate in proceedings concerning quashing of criminal proceedings arising out of the Copyright Act
  5. Representing the principal shareholder of a low-cost airline in India on allegations of fraudulent transactions engaged in by the ex-CEO of the airline and investigations initiated by the federal anti-corruption investigating authority, money laundering authority connected litigation.
  6. Representing a leading American software company with regard to prosecution launched by the federal anti-corruption investigation authority against its employees concerning alleged favours extended to a government official in lieu of awarding contracts.
  7. Representing a leading IT company facing CBI investigation in relation to supply of components to an eminent PSU airline.
  8. Advising the principal shareholder of an Indian e-commerce company on an internal investigation pursuant to an ethics complaint concerning allegations of improper payments to local unions of unorganised workers in an Indian state
  9. Advising a leading audit firm on issues concerning reporting of fraud discovered during the audit process in connection with a large non-banking finance company
  10. Advising a global alcohol beverages company on multiple internal investigations concerning allegations of payment of bribes, vendor kickbacks and improper sale of alcohol
  11. Advised a leading professional services company in relation to a complaint by a whistle-blower regarding the company’s hiring practices.
  12. Advised a leading telecom distributor for vendor kickbacks and allegations of internal financial reporting manipulations.
  13. Advising a leading international investment bank with regard to an investigation by the federal anti-corruption investigating authority on allegations of cheating, corruption against an erstwhile airline company and its promoters.
  14. Advised a leading renewables energy company for allegations of bribery and vendor favouritism.
  15. Represented the principal shareholder of a joint venture in the defense sector in investigations before the federal anti-corruption investigating authority
  16. Represented a Malaysian media group in investigations before the federal anti-corruption investigating authority, money laundering authority, and the Special Court set up by the Supreme Court of India to conduct the trial of cases pertaining to the ‘2G Spectrum’ scam (India’s largest telecom industry-related scams). The work extends to representation in court, advising on issues relating to extradition, execution of letters rogatory and other overseas aspects of the investigation.
  17. Represented the Indian subsidiary of a United Kingdom-based telecom company in proceedings before  the Special Court set up by the Supreme Court of India to conduct the trial of cases pertaining to the ‘2G Spectrum’ scam, which led to their discharge from the proceedings.
  18. Represented the Indian subsidiary of a French transport company in investigations before the federal anti-corruption investigating authority concerning alleged bribery allegations initiated at the instance of the United Kingdom Serious Frauds Investigation Office
  19. Advised a former Chief Minister of an Indian state in proceedings before the concerned local authorities concerning allegations of corruption.
  20. Advised a leading Information Technology MNC on an internal investigation concerning leak of price sensitive information to the press
  21. Advised the principal shareholder of an Indian e-commerce company on legal issues concerning sexual harassment allegations raised by a former employee against a senior member of the company
  22. Advised a leading international airline company with regard to an investigation by the federal anti-corruption investigation agency into improper payments made to a lobbyist for obtaining preferential rights to fly to

Anuj actively contributes articles in global publications. Mentioning a few as under:

  • “Making Section 482 CrPC the sole remedy – Case Study of Madras High Court's judgment in K.Raghupathy v The Commissioner of Police”, Mondaq (September 2017).
  • “Supreme Court On Admissibility Of Electronic Records As Secondary Evidence”, Mondaq (July 2017).
  • “The Consumer Is Paramount – National Consumer Commission's Assertion Of Its Jurisdiction”, Mondaq (July 2017).
  • “Retrospective application of Prevention of Money Laundering Act”, ILO (July 2017).

Career

Anuj joined Shardul Amarchand Mangaldas in 2006. He worked with the Firm till 2009 when he took a sabbatical to pursue Bachelor of Civil Laws (BCL) at the University of Oxford and then re-joined the firm in 2010. While at Oxford, he undertook academic and practical training in International Dispute Settlement. He gained his LLB from National University of Juridical Sciences, Kolkata.

Languages

English, Hindi

Member

Bar Council of Delhi

Education

B.A., LL.B (Hons.), National University of Juridical Sciences, Kolkata, BCL (Oxon)


India

White-collar crime

Within: Leading individuals

Anuj Berry - Shardul Amarchand Mangaldas & Co

Within: White-collar crime

Pallavi Shroff heads the practice at Shardul Amarchand Mangaldas & Co, which has significant experience in advising a broad spectrum of clients on Indian laws relating to bribery, data theft, corporate fraud, money laundering, and anti-corruption. Recent work includes assisting AirAsia India with an investigation into allegations of bribery. The 'thoughtful and strategicAnuj Berry is the other key name to note.

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IHL Briefings

If your firm wishes to publish IHL Briefings or articles, please contact Antony Dine on +44 (0) 207 396 9315 or antony.dine@legalease.co.uk

 

An overview of the Anti-Bribery Law in India: Key takeaways for Commercial Organizations

May 2019. By Anuj Berry

Introduction The Prevention of Corruption Act, 1988 (“PC Act ”) is the principal anti-bribery legislation in India. The PC Act criminalizes the following acts: Accepting or obtaining or attempting to accept or obtain an undue advantage by a public servant with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; Accepting or obtaining or attempting to accept or obtain an undue advantage by a person from another person as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly; Giving or promising to give an undue advantage by one person to another person with an intention (a) to induce a public servant to perform improperly a public duty or (b) to reward such public servant for the improper performance of a public duty; Giving or promising to give an undue advantage by a person associated with a commercial organisation to a public servant with an intention to obtain or retain business for such commercial organisation or any advantage in the conduct of the business for such organization. The ‘bribing of a public servant’ was introduced as a direct offence by way of the amendment to the PC Act with effect from July 2018. Specific to, commercial organizations, a new offence of ‘bribing of a public servant by a commercial organisation’ was recently introduced ( Section 9, PC Act ). These are discussed in detail in this note. Key takeaways for commercial organizations under the PC Act Firstly, a ‘commercial organization’ is defined to mean: A body incorporated in India and which carries on business in India or outside India; Any body incorporated outside India but which carries on a business or a part of the business in any part of India; A partnership or association of persons formed in India or such partnerships or association formed outside India but which carries on a business or a part of a business in any part of India. As indicated above, bribing a public servant by a commercial organization is now a direct offence. Equally, if any person ‘associated with a commercial organization ’ also gives or promises to give any undue advantage to a public servant intending to (a) obtain or retain business for such organization or (b) to obtain or retain an advantage in the conduct of business of such organization, then such commercial organization shall be punishable with fine. A person ‘associated with a commercial organization ’ has been defined to mean any person performing services for or on behalf of such organization including an employee, agent or subsidiary. Thus, there is now a wide net cast on commercial organizations in terms of potential liability that can be attracted should it directly or through persons associated engage in conduct criminalized by the anti-bribery legislation. Attribution of liability to a commercial organization or its officers/ directors Under general principles of Indian law, the general principles of criminal liability in relation to a company can broadly be understood in the following manner: • the liability of a company for the acts of its officers / employees (i.e. by application of the doctrine of attribution) and the liability of the directors for the acts of the company (i.e. by application of the principle of vicarious liability of the directors). In terms of the accepted principles of attribution, the company can be made liable for the acts of its officers/ employees who are the ‘alter ego’ / directing mind and will of the company. Companies can be made liable for statutory or common law offences involving ‘mens rea’ and a corporation cannot escape criminal liability merely because the punishment prescribed for such specific offence envisages imprisonment. Separately, insofar as the criminal liability of the officers/ directors for the acts of the company are concerned, under general principles of Indian law, there is no automatic vicarious liability of the directors or the officers of the company for the acts or omissions of the company. So as to make a director or an officer of the company vicariously liable for the acts of the company, the statute must explicitly provide for such vicarious liability of the directors or persons responsible for the management of the company, should the company be held guilty of an offence under such statute. No person, by merely holding the office of a director or officer of a company, can be made criminally liable for the offences committed by such company. However, in circumstances where it can be established that such director or officer of the company was complicit and/or abetted the commission of such offence by the company, he may be proceeded against for the abetment and/or the commission of such an offence. Some of these general principles now stand altered basis recent amendments made to the PC Act. The PC Act now recognizes a form of vicarious liability, in as much as, a person in charge of a commercial organization is made liable for the acts of such commercial organization upon proof that such an act was committed with the consent or connivance of such person in charge. Need for bribery prevention procedures Given the wide net cast on commercial organizations that can accrue basis acts of persons associated with such organization, the PC Act now enables a commercial organization to raise a defence and prove that it had adequate procedures in place to prevent persons associated with it from undertaking such conduct and accordingly, it can avoid any liability in terms of the PC Act. In the absence of adequate bribery prevention procedures, the commercial organisation may be exposed to liability for all such acts of such associated persons. Post these recent amendments, the Indian law now is substantially similar to the United Kingdom Bribery Act 2010 (“UKBA ”) on this aspect. While as of now there are no prescriptive guidelines in respect of the anti-bribery procedures to be adopted by commercial organisations that would pass the muster of Indian law, commercial organisations exposed to operations in should relook at their existing policies or in the absence of policies adopt such polices or standards as may be proportionate to the nature or scope of their business, so as to avail the benefit of the defence should there arise a situation to do so. Penalties for violation of PC Act Commercial organizations facing a prosecution / conviction under the anti-bribery law in India would face the likelihood of imposition of fines should they be convicted of an offence of paying a bribe. It is pertinent to note that there are no sentencing guidelines pertaining to imposition of fines in India. The courts typically arrive at the fines by considering factors such as the gravity of the offence and the amount of money or the value of the property involved in the commission of the offence. In sentencing fines, the courts typically target the deterrence of the commission of such offence and endeavour to ensure that no person benefits from his/her wrongdoing. As per the PC Act, the quantum of fine is to be ascertained basis the amount or property the accused had obtained or the property the accused person is unable to satisfactorily account for. Further, where it is proved that the offence had been committed with the consent or connivance of any director, manager, secretary or other officer of a commercial organization, such person shall be guilty of the offence and shall be liable for punishment for 3-7 years and shall also be liable to fine. The following table briefly captures the changes effected to the PC Act in so far as the liability of the commercial organisations and/or its officers is concerned:   Pre Amendment Act (Prior to July, 2018) Post Amendment Act (Post July, 2018) Offence of giving or promising to give bribe No direct liability Direct liability Liability of a commercial organisation Abetment of the commission of the offence and offence by a public official under the PC Act or conspiring with the public official for the commission of an offence under the PC Act Direct liability for giving or promising to give bribe or liability under for the acts by persons associated with the commercial organization Liability could be attributed to the commercial organization if the offence was committed only by directing mind such organization Liability is incurred for all the acts of any person associated with such organization, including its employees, agents, contractors, subsidiaries etc. Vicarious liability of the officers of the commercial organisation  No automatic vicarious liability Officials      of      the      commercial organization are vicariously liable [Continue Reading]

Nikesh Tarachand Shah v. Union of India Constitutionality of the pre-bail conditions provid

June 2018. By Anuj Berry

Introduction The question “Bail or Jail ?” at the pre-trail stage, as famously pointed out by the famous Indian jurist, Hon’ble V R Krishna Iyer, shall always belong to the “blurred area of the criminal justice system ” [1] . The Indian courts, in line with the Eight Amendment of the US Constitution, have acknowledged that ‘bail, not jail, is the norm’ [2] but at the same time have also evolved principles such as “collective interest of the community and the safety of the nation ” [3] , to carefully balance the interest of the state and the rights of the accused while deciding bail applications made by accused persons. [Continue Reading]

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