 bill no xiii of 2012 the prevention of bribery in private sector bill, 2012 a billto establish bribery as a criminal offence and to promote effective practices to prevent bribery in private sector and for matters connected therewith or incidental theretobe it enacted by parliament in the sixty-third year of the republic of india as follows:—1 (1)  this act may be called the prevention of bribery in private sector act, 2012 (2) it extends to the whole of indiashort title, extent and commencement(3) it shall come into force on such date as the central government may, by notification, in the official gazette, appoint52 in this act, unless the context otherwise requires,—definitions(a) "bribe" means and includes facilitation payments, directly or through third parties, gift, hospitality and expenses whenever they could or perceived to affect the outcome of business transactions, which are not reasonable and bonafide:10explanation—the term 'bribe' shall become extortion when the demand of bribe isaccompanied by threats that endanger the personal integrity or the life of the person involved, or forced payment of bribe to protect legitimate right or the speed money, for expediting approvals and for providing or not withholding services;(b) "commercial entity" means—(i) a body incorporated under the laws of india which carries on business in india or elsewhere; or(ii) any other body corporate, wherever incorporated, which carries on business, or part of a business, in india; or5(iii) a partnership formed under the law in india which carries on business in india or elsewhere; or(iv) any other partnership, wherever formed, which carries on business, or part of a business, in india:10explanation—the term 'business' includes any trade, profession, commerce or manufacture(c) 'confiscation', means the permanent deprivation of property by order of a court or other competent authority and also includes forfeiture;15(d) 'foreign public official' means any person holding a legislative, executive, administrative or judicial office of a foreign country, whether appointed or elected as permanent or temporary, paid or unpaid or any person performing a public function or a public service for a foreign country;2021 of 1860 2 of 1982(e) 'non-governmental organisation' means a body incorporated under the laws in india or any other body corporate, wherever incorporated which carries on its charitable or religious activities in india, any society registered under the societies registration act, 1860; a trust registered under the indian trusts act, 1882 or association of persons which carries on its charitable or religious activities in india and includes community based organisations;2543 of 1961explanation—the term 'charitable or religious activities' means activities as defined in sub-section (15) of section 2 of the income tax act, 1961:(f) 'person' shall be construed to mean and include—(i)an individual(ii)a company(iii)a firm(iv)a society30(v)a trust(vi)a hindu undivided family (huf)(vii) an association of persons or a body of individuals, whetherincorporated or not(viii) limited liability partnership35(ix)every artificial juridical person not falling within any of the preceding sub-clauses; and(x)any agency, office or branch owned or controlled by such person(g) 'prescribed' means prescribed by rules made under this act;40(h) 'proceeds of crime' means any property derived or obtained, directly or indirectly through the commission of offence under this act;(i) 'property' means assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interest in such assetsbribery in the private sector53 (1) a person shall be guilty of an offence of giving bribe, when committed intentionally in the course of economic, financial or commercial activities when it is established that there is a promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a commercial entity, for the person himself or for another person, in order that he in breach of his duties, acts or refrains from acting in certain matters10(2) a person shall be guilty of an offence of receiving bribe, when committed intentionally in the course of economic, financial or commercial activities when it is established that there is solicitation or acceptance, directly or indirectly, of an undue advantage by any person who directs or works, in any capacity, for a commercial entity, for the person himself or for another person, in order that he in breach of his duties, acts or refrains from acting in certain matters15offence of bribery of foreign public officials4 a person shall be guilty of an offence of bribery of foreign public officials, when committed intentionally in the conduct of international business, when it is established that there is an offer, promise or giving any undue pecuniary or other advantage, whether directly or through an intermediary, to a foreign public official, for that official or for a third party, in order that the official acts or refrains from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage:20explanation—for the purpose of this section, offence of bribery of foreign public officials shall also include complicity, incitement, aiding, abetting and authorization of an act of bribery of a foreign public official or an attempt and conspiracy to bribe a foreign public official255 (1) any person who participates in any capacity such as an accomplice, aid or instigator in any offence under sections 3 or 4 shall be considered as guilty of offence under that sectionparticipation or attempt to participate in act of bribery(2) any person who makes an attempt to commit an offence under section 3 or 4 shall be considered as guilty of offence under that section6 a commercial entity shall be guilty of an offence under this section if a person associated with it, bribes another person intending—failure of commercial entity to prevent bribery(i) to obtain or retain business for the commercial entity, or30(ii) to obtain or retain an advantage in the conduct of business for the commercialentity:provided that the commercial entity may in defence prove that it has in place adequate procedures, as may be prescribed, designed to prevent persons associated with it from undertaking such conduct357 a non-governmental organisation shall be guilty of an offence under this section if a person associated with it, bribes another person intending—failure of non governmental organisation to prevent bribery(i) to obtain or retain assets, grants for the non-governmental organization; or (ii) to obtain or retain an advantage in the conduct of its charitable activities:40provided that the commercial entity may in defence prove that it has in place adequateprocedures, as may be prescribed, designed to prevent persons associated with it from undertaking such conductcontravention by companies458 (1) where a person committing a contravention of any provisions of the act, or of any rule is a company, every person who, at the time when contravention was committed, was in charge of or was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of offence and to be punished accordingly:provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised due diligence to prevent such contravention5(2) notwithstanding anything contained in sub-section (1), where any contravention has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of committing contravention and shall be liable to be proceeded against and punished accordingly10explanation—for the purposes of this section,—(i) 'company' means any body corporate and includes a firm, society, trust, limited liability partnership or other association of persons; and(ii) 'director' in relation to a firm means a partner of the firm and in relation to a trust means trustee of the trust|                                                                                            |    |   penalties | 15                                                                                     ||--------------------------------------------------------------------------------------------|----|--------------|----------------------------------------------------------------------------------------|| 9                                                                                         | (  |            1 | ) an individual guilty of an offence under section 3 or 4 shall be liable on the first || offence, for imprisonment for a term not exceeding five years or to a fine not exceeding   |    |              |                                                                                        || rupees two lakh or both and for second or subsequent contravention, for imprisonment for a |    |              |                                                                                        || term not exceeding fourteen years or to a fine not less than rupees five lakh or both     |    |              |                                                                                        || 20                                                                                         |    |              |                                                                                        |(2) any other person guilty of an offence under sections 3 or 4 shall be liable on the first offence, to a fine not exceeding rupees one lakh and for second or subsequent contravention, to a fine not less than rupees five lakh(3) a person guilty of an offence under section 5 is liable on conviction to a fine not more than rupees two lakh25confiscation of proceeds of crime10 (1) on conviction of a person the proceeds of crime derived from or involved inoffences under sections 3 or 4, or the property the value of which corresponds to that of such proceeds shall be confiscated(2) if proceeds of crime have been transformed or converted, by the person in part or in full, into other property, such property shall be liable to be confiscated30(3) if proceeds of crime have been intermingled by the person with property acquired from legitimate sources, such property shall be liable to confiscated up to the assessed value of the intermingled proceeds(4) income or other benefits derived by any person from such proceeds of crime, from property into which such proceeds of crime have been transformed or converted or from property with which such proceeds of crime have been intermingled shall also be liable to be confiscated in the same manner and to the same extent as proceeds of crime35(5) for the purpose of this section, notwithstanding any rights or privilege provided through any other act or by an agreement between the parties, the adjudicating authority shall have authority to order any bank, financial institution, financial intermediary or commercial entity to provide information, seize or produce records, freeze accounts and remit the proceeds of crime to the designated account40(6) the proceeds of crime confiscated under this act shall vest in the central government11 (1) the central government, may, by notification in the official gazette, appoint as many special judges as may be necessary to try the offences punishable under this actpower to appoint special judges452 of 1974(2) a person shall not be qualified for appointment as a special judge under this act unless he is or has been a sessions judge or an additional session judge under the code of criminal procedures, 1973(3) a special judge shall follow the procedure prescribed by the code of criminal procedure, 1973 for the trial5(4) a special judge, while trying an offence punishable under this act shall exercise all the powers and functions exercisable by a district judge under the criminal law amendment ordinance, 1944ord 38 of 1944appeal and revision2 of 197412 subject to the provisions of this act, the high court may exercise, so far as applicable, all the powers of appeal and revision conferred by the code of criminal procedure, 1973 on a high court as if the court of special judge was a court of session trying cases within the local limits of the high court1013 (1) the central government shall take appropriate steps to provide effectiveprotection from potential retaliation or intimidation to witnesses, reporting persons and experts who give testimony concerning offences established under the act and to their relativesprotection of witnesses and reporting persons15(2) the central government shall establish procedures for the physical protection of such witnesses and reporting persons and for non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons(3) the provisions of the sub-sections (1) and (2) shall also apply to victims in so far as they are witnesses(4) in cases of extortionist bribe, if the bribe giver files a complaint, he shall be protected under this clause as a whistle blower:20provided that this protection shall not be made available in case of speed money| 14                                                                      ||--------------------------------------------------------------------------|| designed to prevent persons associated with it from undertaking bribery || prevention of                                                            || bribery by                                                               || commercial                                                               || entity                                                                  |25(2) the procedures shall provide for commercial entities to establish and ensure the effectiveness of internal controls, ethics and compliance measures for preventing and detecting bribery and shall inter alia, include,—(i) a clearly articulated and visible policy prohibiting bribery; (ii) instructions for strict compliance with the policy at all levels of the entity; (iii) appropriate disciplinary procedures to address violation of the proceduresat all levels of the entity;(iv) setting up independent monitoring body;30(v) oversight of ethics and compliance measures and reporting to the independentmonitoring body;35(vi) ensuring applicability of the policy and procedures to third parties such asagents, intermediaries, consultants, representatives, distributors, partners, contractors, advisors, suppliers, associates, subsidiaries and joint venture partners and seeking commitment from such third parties to adhere to policy prohibiting bribery;(vii) measures for periodic communication and training at all levels of the entityof laws against bribery and entity's policy against bribery; and40(viii) putting in place an appropriate whistle blower mechanism including rewardsfor reporting and protection of the whistle blowers15 (1) the banks, financial institutions and other financial intermediaries shall be required to take reasonable steps to determine the identity of beneficial owners of funds deposited into the accounts of such customers in such manner as may be prescribedprevention and detection of proceeds of crime45(2) the banks, financial institutions and other financial intermediaries shall be required to maintain record of beneficial owners under sub-section (1) and shall provide such information as and when required by the adjudication authorities16 the provisions of this act shall be in addition to and not in derogation of any other law for the time being in forceapplication of other laws not barredpower to make rules17 the central government shall, by notification in the official gazette make rulesto carry out the provisions of this act statement of objects and reasonscorruption and black money have many dimensions it is highly noticeable that the vices of the market tend to seek advantage of the weaknesses of the competitive democratic set up like oursthe situation has reached to alarming levels and more so in the wake of lack of effective legal mechanism to deal with the menace the traditional anti-corruption laws are losing their teeth against the new threat from private sector the united nations convention against corruption (uncac) has also identified certain gaps in our present anti-corruption mechanism we don't have any act dealing with prevention of bribery in the private sector and non-governmental organisations (ngos) our provisions also lack with regards to mispricing and valuation of contract and licenses etc, gratification and bribery through third party, lobbying and influencing through public policy debate, rules, regulation and guidelines to be implemented by private sector to check and control bribery and the bribing by foreign nationals to tackle these issues effectively, specific legal provisions in the form of  a bill, namely, 'the prevention of bribery in private sector bill, 2012' clearly defining all these terms and issues is being movedhence, this billprakash javadekar memorandum regarding delegated legislationclause 17 of the bill empowers the central government to make rules for carrying out the purposes of this billsince the rules will relate to matters of details only, the delegation of legislation power is of a normal character———— a billto establish bribery as a criminal offence and to promote effective practices to prevent bribery in private sector and for matters connected therewith or incidental thereto—————(shri prakash javadekar, mp)gmgipmrnd—443rs—(s3)—27042012