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CS Professional · Environmental, Social and Governance (ESG) - Principles and Practice · Business Ethics, Code of Conduct and Anti-Bribery

In a prosecution of Kaveri Infra LLP under section 9 of the Prevention of Corruption Act, 1988, who bears the burden of showing that adequate procedures existed?

The commercial organisation carries the burden. The proviso to section 9(1) makes it a defence for the organisation to prove that it had adequate procedures, in compliance with the prescribed guidelines, to prevent associated persons from bribery. The prosecution does not have to disprove adequacy, and a mere code does not create a presumption.

  1. AThe prosecution must prove that procedures were inadequate before the LLP is called upon to answer
  2. BThe court presumes adequacy once the LLP has a written code of conduct
  3. CThe commercial organisation must prove that it had adequate procedures in placeCorrect
  4. DThe public servant who received the advantage must prove it

Explanation

The proviso to section 9(1) says it shall be a defence for the commercial organisation to prove it had adequate procedures. The burden of proving the defence therefore lies on the organisation. A written code alone does not create a presumption, and the public servant has no such role.

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