Uncovering The Truth: Exploring Forensic Audit Under The Companies Act, 2013

INTRODUCTION

India's remarkable economic growth and global recognition are a result of the government's reform efforts in the realm of good governance. The principles of effective, efficient, easy, empower, and equity form the foundation of contemporary good governance, aiming for a transparent and accountable welfare state. India's collaborative approach addresses challenges like fraud and financial misplacement, which hinder inclusive growth. Fraud, in particular, poses a significant threat not only to corporate organizations but also to the entire economy, with both short-term and long-term consequences. Therefore, combating fraud has always been a priority for growing economies like India, seeking to detect, prevent, and regulate this menace in the nation's best interest.

In this pursuit of timely detection, prevention, and regulation of corporate fraud, forensic audit plays a crucial role in assisting corporations in maintaining efficiency and integrity. By combining accounting and investigative techniques, forensic audit serves all the five principles of good governance, enabling corporations to grow and develop effectively, efficiently, easily, with empowerment and equity as guiding values.

DEFINITIONS

Forensic Audit is a specialized field within finance that involves the integration of detective skills and financial expertise. Forensic audit professionals undertake in-depth investigations of financial reports to uncover and understand various financial transactions. Their primary objective is to determine the truth behind any fraudulent activities that may have occurred within a company. By carefully analysing financial data, these professionals identify the individuals or parties responsible for the fraud, shedding light on the actual events that transpired. The process involves meticulous examination, data analysis, and the application of forensic techniques to ensure accuracy and uncover the truth.

Forensic Audit encompasses various areas and serves multiple purposes beyond the detection of criminal activities. Some of the key areas and applications include:

• Frauds Finding: Forensic auditors are skilled at identifying and uncovering fraudulent activities within companies. They use their expertise to examine financial records and transactions to identify any discrepancies or irregularities.
• Fraud detection and prevention techniques: Forensic auditors employ specialized techniques and tools to detect and prevent fraud. They develop strategies and procedures to identify potentially fraudulent activities and implement controls to mitigate the risks.
• Fraud-related auditing: Forensic auditors conduct audits specifically focused on detecting and investigating fraud. They examine financial statements, records, and transactions to assess the accuracy and integrity of the financial information.
• Investigation and analysis of financial evidence: Forensic auditors thoroughly analyse financial evidence to reconstruct events and determine the extent of any fraudulent activities. They utilize investigative techniques to gather and analyse data, identify patterns, and trace financial transactions.
• Development of computerized applications: Forensic auditors utilize technology to aid in the analysis and presentation of financial evidence. They develop computerized applications and tools to facilitate data analysis, create visual representations, and support the presentation of findings.
• Communication of findings: Forensic auditors compile their findings and present them in the form of reports, exhibits, and collections of documents. They provide clear and concise summaries of their investigations, including the evidence gathered and the conclusions drawn.

Assistance in legal proceedings: Forensic auditors play a vital role in legal proceedings related to financial fraud. They may testify in court as expert witnesses, providing their professional opinion and presenting the evidence they have gathered. They also prepare visual aids and supporting materials to present the evidence effectively during trials.

Forensic audit is not limited to criminal investigations but also plays a crucial role in scenarios such as business turnarounds or takeovers. In such cases, forensic audit provides a comprehensive understanding of the financial position of the target company and helps establish connections between financial data and related communications.

Fraud, in general, involves intentional deception or manipulation with the aim of obtaining personal or financial gain while causing loss to others. It encompasses acts of wrongful concealment, omission, or perversion of truth. Fraud can be characterized by gaining unlawful advantages, inducing others to part with valuable items or surrender legal rights, or inflicting harm in some manner.

Wilful fraud is considered a criminal offense and is subject to severe penalties, with no statute of limitations. However, incompetence, negligence, or reckless use of a business's assets, such as speculative activities in the stock market, do not constitute fraud but can still lead to legal liabilities. In cases where financial loss to a business or manipulation of the stock market is attempted with a clear intention to deceive, it can be categorized as financial fraud. Legally, fraud is defined as deliberate deception aimed at securing unfair or unlawful gain or depriving a victim of their legal rights. It can be pursued as a civil wrong, allowing the victim to sue the perpetrator for compensation or to void the fraudulent act. It can also be treated as a criminal offense, leading to prosecution and imprisonment by governmental authorities. Additionally, fraud can be an element of other civil or criminal wrongs, even if it does not directly cause financial loss or deprivation of rights.

The underlying objective of fraud can vary, ranging from monetary gain to obtaining false documents or qualifications. It encompasses a wide range of deceptive techniques, cunning, and unfair practices employed by one individual to gain an advantage over another by misleading or withholding the truth.

Fraud is commonly observed in various transactions involving the buying or selling of property, including real estate, personal belongings, and intangible assets like stocks, bonds, and copyrights. In India, fraud is criminalized under different statutes; however, not all cases necessarily qualify as criminal offenses. Prosecutors have discretion in determining which cases to pursue criminally. Victims also have the option to seek redress in civil court, particularly when the fraud's impact is limited to a specific company without significantly affecting the broader economy. In such cases, victims may seek relief through civil remedies. However, if the fraud committed within a company has far-reaching implications that affect the entire economy, the appropriate course of action is criminal prosecution under various criminal law statutes, including the Indian Penal Code, 1860. In such cases, it becomes crucial not only to punish the accused but also to recover the ill-gotten gains from fraudulent transactions. Fraud is universally recognized as an act of deceit that is subject to both criminal and civil legal action in most jurisdictions, including India. Therefore, it is important to delve into the specific definitions and meanings of fraud under laws such as the Companies Act, 2013, to gain a comprehensive understanding of its implications and the legal framework surrounding it.

COMPANIES ACT, 2013

As per the explanation to Sec 447 of Chapter XXIX, “fraud” in relation to affairs of a company or any body corporate, includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of, the company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss. In line with the provided definition, corporate fraud refers to fraudulent activities concerning the affairs of a company or any corporate body, as defined in the explanations of Section 447 of the Companies Act, 2013. It encompasses various actions or omissions, as well as the concealment of facts or abuse of position, committed by an individual or in collusion with others. These actions are carried out with the intent to deceive, gain undue advantage, or cause harm to the company, its shareholders, creditors, or any other person involved. It is important to note that corporate fraud can occur irrespective of whether there is any wrongful gain or loss involved.

Corporate fraud can take various forms, and here are several examples:

• Personal purchases: An employee diverts company funds to make personal purchases by approving their own expense reports or supplier invoices. This typically requires a senior position to exert influence over other employees involved.
• Ghost employees: Payroll staff create fictitious employees and direct payments to their own bank accounts. Inadequate controls over employee payments make this type of fraud more likely.
• Skimming: Incoming funds are intercepted before being recorded in the company's accounting system. This often occurs when a person is responsible for both opening mail and recording transactions.
• Tax avoidance: Companies manipulate their tax returns to understate taxable income, resulting in lower tax payments. Senior management is typically involved in approving the manipulated tax returns.
• Asset theft: Employees steal company assets, such as cash or fixed assets, for personal gain. Weak controls and lack of oversight can contribute to such theft.
• Unauthorized use: Employees misuse company assets, such as using company vehicles or properties for personal purposes. Although the assets are not stolen, their value diminishes over time due to unauthorized usage.
• Financial statement falsification: Organizations manipulate their financial statements to present better financial performance. These falsified statements can be used to obtain loans or attract investors. The manipulation can occur within the accounting department or be enforced by management.

These examples highlight different ways in which a corporation can commit fraud, emphasizing the importance of robust internal controls, oversight, and ethical practices to prevent and detect fraudulent activities.

FORENSIC AUDIT

An audit is a systematic and independent process of examining the books, accounts, statutory records, documents, and vouchers of an organization. The primary objective of an audit is to determine the extent to which financial statements and non-financial disclosures provide a true and fair view of the company's affairs. Audits also aim to verify that the organization's books of accounts are being maintained properly, adhering to legal requirements and accounting standards. Through the audit process, professional auditors assess the accuracy, completeness, and reliability of financial information, ensuring its compliance with applicable laws and regulations. Overall, an audit serves as an essential tool to provide assurance to stakeholders, including shareholders, investors, creditors, and regulatory authorities, regarding the reliability and credibility of an organization's financial statements and its compliance with relevant laws and regulations.

Forensic audit involves the examination and analysis of evidence related to a specific assertion or claim. The purpose is to determine the extent to which the evidence aligns with established criteria, such as legal requirements, regulatory standards, or contractual obligations. Forensic auditors perform their work in a manner that is suitable for presentation in a court of law, as their findings and conclusions may be used as evidence in legal proceedings. Forensic audit typically goes beyond traditional financial auditing and involves a more in-depth investigation of financial records, transactions, and supporting documentation. It may also involve interviews, data analysis, forensic techniques, and other investigative procedures to uncover potential fraud, misappropriation of assets, or other irregularities. The primary goal of a forensic audit is to gather and evaluate evidence in order to provide a clear and unbiased understanding of the facts and circumstances surrounding a particular situation. This information can be crucial in legal disputes, dispute resolution, or other scenarios where the accuracy and integrity of financial information are essential.

Forensic audit provides several key benefits, including:

• Detection and Responsibility of Corruption: By investigating fraud, forensic auditors can identify conflicts of interest, bribery, and extortion, helping determine the responsible individuals and holding them accountable.
• Detection of Asset Misappropriation: Forensic audit helps uncover fraudulent activities such as cash misappropriation, fake invoices, and theft of assets or inventory.
• Detection of Financial Statement Fraud: Forensic auditors can identify fraudulent practices aimed at misrepresenting a company's financial performance, such as falsifying accounting records, omitting transactions, or non-disclosure of relevant details.
• Fraud Identification and Prevention: Forensic accounting helps analyse whether accounting policies are followed and transactions are accurately recorded, enabling the identification of fraud and implementation of preventive measures.
• Making Sound Investment Decisions: Forensic audit provides insight into a company's financial standing and weaknesses, guiding investors to make informed investment decisions by avoiding fraudulent companies.
• Formulation of Economic Policies: Cases uncovered through forensic analysis serve as references for governments to develop improved economic policies, strengthening the economy and preventing fraudulent activities.
• Rewarding Career Opportunity: Forensic auditing offers a rewarding career path with opportunities for high demand, higher salaries, and acceptance of reports in legal proceedings, distinguishing forensic auditors from other accountants.

CONCLUSION

In conclusion, forensic audit plays a vital role in uncovering fraud, ensuring accountability, and promoting good governance within organizations. By detecting corruption, asset misappropriation, and financial statement fraud, forensic auditors help protect the interests of companies, shareholders, and stakeholders. Moreover, forensic audit aids in fraud identification and prevention, allowing businesses to strengthen their internal controls and mitigate risks. The insights provided by forensic auditors also assist investors in making sound investment decisions and guide governments in formulating effective economic policies. With its significant impact on detecting and preventing fraudulent activities, forensic audit offers a rewarding career path for professionals seeking a dynamic and impactful role in the field of finance. Overall, the benefits of forensic audit extend beyond financial investigations, contributing to the integrity and stability of businesses and economies.