Memorandum of Advice

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Memorandum of Advice (Ref No: 1433)

 

From:

To: Director of the Serious Fraud Office

Date: 20-Mar-2016

Subject: deliberate failure in a financial transaction to disclose information.

MEMORANDUM OF ADVICE

Summary of Memorandum

This memorandum revolves around the analysis of weaknesses in the English Law that may allow “deliberate failure in a financial transaction to disclose information”. The memorandum focuses on a particular case of fraud in a financial transaction and analyses it deeply with respect to the law and regulations. The fraud by several parties and their consequences in the light of law are discussed in this memorandum.

Summary of Case

In a business deal, a purchaser issued a crossed cheque in favour of the seller. The seller deposited the cheque in his account for realization. The bank of the seller forwarded the crossed cheque to the bank of the issuer for clearance, memorandum of advice but the cheque was returned with the report that there was no sufficient amount in the account of the person issuing the cheque. Thinking that perhaps the account holder might deposit the requisite amount after some time, the seller again deposited the cheque after an interval of one month, but again the cheque was returned with the same report.

The depositor approached the concerned police station where a case was registered under the relevant law. During the investigation, police went to the branch of the bank from where the copy of national identity card was obtained. The address of the person was of a far village about 700 kilometres. A police party went to the destination. The police party reached to the person. Surprisingly he was an illiterate person and told that he had never seen any bank from inside, as

In the record of the bank, a photocopy of the National Identity card of this person was used, the card was bearing the signatures of the cardholder and from the signatures it was clearly indicated that the signatory had signed the card in very illiterate manner while the signatures on account opening form and on the cheques were very stylish and modern. This point indicated that the person who had signed the cheques is well educated having a well-established and beautiful handwriting.

After some meetings with that person, the head of the police party reached the conclusion that this man was quite innocent. However, the police party continued the investigation. The person told that about one year prior he went to that city where the bank was situated. There he tried to get a job of the labourer and for that purpose, he gave a photocopy of his National identity card.  The police officer decided to leave the culprit as he had got no any criminal intent.

Criminal Intent

According to R V Mohan, the criminal intent is defined as “the decision to bring about prohibited consequence”. In criminal law, many words are being used around the world for the mental position of a person going to commit an offence will-fully. The mental situation known as Men’s Rea can be expressed as malice aforethought. Whereas, the interpretations of malice mean willfully and maliciously strongly vary between recklessness and pure intent and is dependent upon the jurisdiction where ever the offence has been committed and on the seriousness of the crime.

A person intends to get consequences of foreseen continuous acts or omissions and desires to happen it. A serious level of culpability which could be able to justify the quantum of punishment can be achieved whenever both these components are present in the mind of the accused (It may be a subjective test). Any person who has some plans in his mind to commit an offence, wrongly or rightly be considered a great danger for the population than an accused who dares to act spontaneously because of less chance of being caught. If an accused finds an opportunity to commit an offence or due to anger and sudden provocation then it might be taken with another angle while comparing with the criminal intent. The person whose identity was stolen by means of using his national identity card was not found guilty during investigations carried by the local police as well as by the Federal Investigating agency…