Why Banking Frauds Are So Frequent At PSU Banks

The terrain that is Indian banking turns tricky when government’s shareholder action in PSU banks starts impinging on RBI’s regulatory regime

It’s difficult not to detect a sense of déjà vu in the Nirav Modi scam, especially in all the hand-wringing and ex post facto zeal in setting up committees and investigations. Scams are a recurring motif in Indian banking, and the Punjab National Bank (PNB) case fits into the broad template of all previous stings.

In the search for solutions, a steady crescendo of drum-beats has been advocating whole-scale privatization of public sector (PSU) banks as a cure-all panacea. Implicit in the suggestion is the assumption that scams are the exclusive preserve of PSU banks. While it is true that the extent of scams and corruption is highest in PSU banks, data shows Indian private banks are not entirely immune.

The history of Indian banking over the past 50 years is littered with examples of failed private banks that were forcibly merged with stronger public sector banks (and with even stronger private banks recently—such as Bank of Rajasthan with ICICI Bank Ltd). This was done to safeguard depositors’ monies and to avoid systemic disruption. Here are a few random examples: Bank of Bihar was merged with State Bank of India in 1969; Hindustan Commercial Bank with PNB in 1986; Bari Doab Bank Ltd with Oriental Bank of Commerce in 1997; Kolkata-based United Industrial Bank merged with Allahabad Bank in 1989-90; Bank of Karad with Bank of India in 1994. The word merger has a volitional ring to it, but truth be told, there was nothing voluntary about these mergers.

Private banks have no special genes making them immune to scams and frauds. Global Trust Bank had to be merged with Oriental Bank of Commerce after its net worth was wiped out due to systemic fraud perpetrated by insiders. Even voluntary mergers in the post-reforms era are designed to escape distress and seek shelter with a stronger bank.

On balance, though, the larger proportion of scams in PSU banks does beg the question: why do they recur? One immediate reason could be the blurred lines of control and command. The government is the owner of PSU banks and exercises its shareholder rights capriciously: random appointments and transfers of chief executives, influencing appointment of board members, rationing out capital allocation in the name of fostering efficiency are some of the arbitrary control levers. The terrain turns tricky when government’s shareholder action starts impinging on Reserve Bank of India’s (RBI’s) regulatory regime. Bank senior executives, politically seasoned in picking up conflicting signals, reflexively align with the government even if it means contravening RBI’s regulatory framework.

For example, in the PNB fraud case, the bank’s core banking system (CBS) was not linked to its SWIFT system, thereby allowing officers to clandestinely issue letters of undertaking to Modi’s companies and confirming them with counter-party banks overseas through the SWIFT system.

This is despite RBI exhorting banks to link CBS with SWIFT; yet, PNB chose to violate these orders. It is, therefore, odd that none of the members of PNB’s governance troika—board, RBI or its all-powerful shareholder—pulled up the management or even sought an action taken report.

Former RBI governor Raghuram Rajan writes in his book, I Do What I Do: “Today, a variety of authorities…monitor the performance of public sector banks… It is important that we streamline and reduce the overlaps between the jurisdictions of the authorities, and specify clear triggers or situations where one authority’s oversight is invoked.”

RBI is tasked with detecting infirmities, but has no authority to enforce its own orders, administer remedial measures or even deliver swift punitive action. The central investigative agencies are tasked with following up on investigations and pursuing legal recourse. The political pulls and pressures on these agencies, as well as the Indian legal system’s long-drawn processes, provides swindlers with enough escape routes (pun intended), and is never a deterrent.

There is a likelihood that diminished incentives to regulate and supervise could be leading to weakened supervision and vigilance: most of it has become detection (after the event investigation) rather than prevention, which is to create systems and processes that raise alarms before the event or while transactions are taking place.

Flawed risk-mitigation design, which puts excessive focus on credit or market risks, has taken away attention from operation risk, leaving it susceptible to breaches. In addition, there is excessive dependence on manual supervision, at both external and internal levels. The sheer volume of transactions makes it impossible to manually control and supervise.

In the end, no matter what the design, somebody will always attempt to finesse the system. Blame corrupt politicians and bureaucrats, or the steadily disintegrating moral fibre of Indian businessmen, bankers and other white-collar professionals (as pointed out in this article), but scams are here to stay. The trick will be to construct a process design that prohibits anybody taking advantage of the system for sustained periods. And that will require dismantling some of the entitlement rights of the majority shareholder.

The above article was originally published in Mint newspaper and can also be read here

Fault Lines in the Indian Banking Industry

Both the PNB fraud and the Rotomac case underline how fund diversions were overlooked, but what’s distressing is how no alarm bells were sounded, no red flags were raised

Two things occur with metronomic regularity in the Indian banking sector: scams and committee reports. One, perhaps, follows from the other.

The Indian banking story, whether pre- or post-nationalization, has been an unfortunate hostage to a long catalogue of scams and frauds. The discovery of each scam is usually followed up with a flurry of committees and reports, rule reversals and a systems overhaul. A few years lapse in all this frenetic activity, a sharp light is focused on the scam area and just about when everybody starts getting complacent, another scam hits the industry. The entire round-robin league is replayed all over again.

The modus vivendi is common: exploit the system’s weakest link. There is another common thread in all the scams: diversion of funds. Both the Punjab National Bank (PNB) and Bank of Baroda (BoB) scams—the Nirav Modi and Rotomac cases, respectively—underline how fund diversions were overlooked; what’s distressing is how no alarm bells were sounded, nor red flags raised, despite an obvious piling up of operational, human and market risks that have debilitated two of India’s stronger public sector banks. Unfortunately, this seems to have become the default template for Indian banking scams, underscoring wide gaps in the regulatory framework. A cursory glance at scams since 1990 show how each episode methodically leveraged regulatory and supervision gaps.

The Harshad Mehta scam coincided with the dawn of India’s economic reforms. Mehta exploited the manual and antiquated settlement systems in trading of government securities. Taking advantage of a few pliant bank officers, Mehta conducted gilts trade between different banks using forged documents and diverted proceeds to prop up untenable equities positions. The scam-tainted large public sector banks (State Bank of India), foreign banks (Standard Chartered), small private banks (Bank of Karad, now extinct), corporate behemoths and sundry securities markets intermediaries.

A decade later, Ketan Parekh—ironically Harshad Mehta’s protégé—replicated almost the same methods: divert funds from the banking system through fraudulent methods to sustain equity market positions. KP would obtain pay-orders from Ahmedabad-based Madhavpura Mercantile Cooperative Bank without providing sufficient collateral. He would discount these pay-orders with Bank of India in Mumbai and use the proceeds to ramp up shares. The house of cards eventually collapsed when bear traders hammered KP’s favourite stocks and Madhavpura’s outstanding pay-orders exceeded its ability to repay Bank of India.

Here’s another familiar story: Sanjay Agarwal, former CEO of Lloyds Brokerage, created portal Home Trade in 2000 but was forced to go on the run a year later. Agarwal had inserted himself into the world of cooperative banks, promising to invest in gilts on their behalf and delivering lucrative trading returns. Instead, he diverted the money without delivering the securities or providing the promised returns. The charade continued till one of the cooperative banks complained about not receiving the promised securities.

In recent times, Winsome Diamonds and Jewellery Ltd allegedly used standby letters of credit to divert Rs7,000 crore. Winsome Group promoter Jatin Mehta shares another common strain with Nirav Modi: both have ostensibly become citizens of Saint Kitts and Nevis islands in the Caribbean, which does not have an extradition treaty with India.

Many more similar banking scams have occurred and gone undetected for long periods till the final moment of denouement. One trend is unmistakeable: money is diverted out of the banking system with the active connivance of either the bank’s senior management or a couple of rogue officers. This is what makes both the PNB and BoB cases incredulous: with Reserve Bank of India (RBI) putting so much emphasis on anti-money laundering mechanisms, and with an increasing number of prosecutions against either money laundering or diversion of bank funds, it is indeed curious how both the banks persisted with lax risk mitigation and supervision frameworks.

This also then begs the question: how is it that so many similar scams occur with such frequency, especially when RBI is such a hands-on regulator and supervisor? Every small action needs RBI approval, be it a CEO’s annual bonus, bank management’s decision to nominate a senior executive to the board or to open a branch in a city. Yet, copycat scams continue with ineluctable monotony.

Each time a scam occurs, committees are set up and numerous studies take place. Even now, post the PNB scandal, RBI has set up a committee under chartered accountant Yezdi H. Malegam to examine the increasing number of frauds in the banking system, the measures that will be needed to prevent them (including technological solutions), the role and efficacy of various audits currently conducted in banks to mitigate such frauds and the growing divergence between RBI and bank assessments on asset quality.

Many similar committees were set up earlier and voluminous reports submitted; yet, sadly, they are never enough to prevent future scams.

Next episode: what could be the probable reasons for the recurrence of such scams.

The above article was originally published in Mint newspaper and can be read here

Hierarchy Of Rights: Citizens vs Institutions

The state, its myriad institutions and the corporate sector—both in private and state-owned spaces—have been provided a hierarchical status greater than citizens

The large hole discovered recently in Punjab National Bank (PNB) has got people asking: How did a diamantaire take out so much money from the banking system, so easily, when ordinary customers are made to jump through several hoops or provide copious documentation for a simple transaction?

The incident has once again highlighted the asymmetrical and uneasy relation between institutions and ordinary Indian individuals, in which the dice seems to be loaded against ordinary citizens. As examples later illustrate, this unequal relationship is not restricted to a few isolated cases but is endemic and, in some senses, also epitomizes the mistrust between state and citizen.

On paper, all Indians are created equal but inequalities have been stitched into the nation’s variegated relationships and transactions, such as deep-rooted gender inequalities or caste-based social discriminations. In particular, the state, its myriad institutions and the corporate sector—both in private and state-owned spaces—have been provided a hierarchical status greater than citizens. It seems the Indian republic, with its all modernist aspirations, is unable to shake off its feudal legacy and provide an equitable balance between institutions and individuals. The state’s role as a patron (or mai-baap) seems to rub off easily on various other institutions.

The mistrust is underscored every time there is a fraud, anywhere and by anybody, in the banking system. The Reserve Bank of India (RBI) insists all banks re-initiate the know-your-customer (KYC) process afresh, forcing all customers to compulsorily re-submit identity documents. Past submissions of same documents are disregarded. This process seems to indicate all citizens are guilty till they provide KYC papers repeatedly. The tyranny of Aadhaar, unleashed by all financial sector participants, has magnified the state of wariness. Hopefully, champions of Financial Resolution and Deposit Insurance (FRDI) Bill, specifically using depositors’ funds to bail out shaky banks, will now have occasion to rethink their position.

The unequal relation between state and individual is extreme in taxation. Tax notices routinely sent out by the income tax department start with the premise that the individual assessee is guilty and leave no room for doubt that the department could be mistaken; the tenor of these notices is intimidating, and the onus for proving oneself innocent lies with individual assessees. Even the redressal mechanism is loaded against the individual and mainly designed to deal with large corporates.

Apart from the PNB incident, examples abound of how such inequalities have become institutionalized. Assume a customer owes the electricity company money for consuming power. There is a tariff structure for consumers that is decided between power supplier and power regulator. If for some reason the consumer is unable to pay for one month, the power company’s representative arrives at the door and demands immediate payment or threatens disconnection. Logic and economic sense suggests that user charges must be paid. Otherwise, utilities cannot function. But, what happens when the same power company (or any other company) defaults on bank loans? In the language of RBI, the loan is recognized as overdue only when “interest and/or instalment of principal remain overdue for a period of more than 90 days”. Which means any company can afford not to repay its loans for 90 days without getting penalized. The question begs itself: if companies can avoid repaying loans for 90 days, why are ordinary citizens hounded at the end of 30 days?

A citizen’s helplessness is best manifested through the healthcare system. A division bench of the Bombay high court recently instructed the Maharashtra government to balance the rights of patients with the rights of hospitals and doctors while bringing in legislation to regulate clinical establishments. The court was hearing a 2014 petition, which it has converted into a public interest litigation, on hospitals detaining patients over disputed bills. As mentioned in earlier instalments of this column, public-private-partnerships in healthcare have benefited mostly the private entrepreneur, with active connivance of the state, and squeezed individuals.

On occasion, the regulator has had to step in to correct an inconsistency. Credit bureaus till recently did not allow citizens to access their own credit records without paying a fee. Credit card issuers and all other economic agents submit data on a citizen’s creditworthiness to credit information companies and could access the same before granting a loan or a credit card. But the individual could neither access the submitted data nor dispute the data, without paying a fee. In September 2016, RBI decreed that all credit information companies had to provide a free full credit report to individuals once a year. But the process remains cumbersome.

Globalization’s annual summit has over the past couple of years focused on social themes—from inequality to this year’s “creating a shared future in a fractured world”. Last year, discussions on how to eradicate inequality ranged from higher taxes on the rich to universal basic income; the World Economic Forum piped in with its own solution: “Move away the focus from plain wealth creation towards accomplishing a combination of other goals, producing more inclusive development.” Next year’s theme should be on redrawing the balance of power between individuals and all institutions.

The above article was originally published in Mint newspaper and can also be read here

Feels Like Scam Season Once Again

The belated discovery of a moon-size crater inside Punjab National Bank (PNB) opens up many fronts and leaves multiple questions unanswered. What’s more, the extent of damages is still evolving and could multiply as individual strands of the multi-layered transactions are extricated.

The overall outlook is also not that encouraging: the spaghetti bowl of interconnected transactions could result in a number of tangled legal disputes that could take some time to unravel. India’s largest commercial bank, the public sector State Bank of India, has just disclosed it has a $212 million exposure. In all, it feels like scam season once again!

The PNB episode seems to replicate all the steps observed in previous bank scams and carries echoes of similar collusions and cover-ups; what remains to be seen now is whether there is a flurry of post-scam reports from Reserve Bank of India (RBI) or Joint Parliament Committees, reminiscent of the Harshad Mehta scam.

To be sure, there will be much hand-wringing and chest-beating, new rounds of regulatory measures, additional layers of risk management processes and documentation followed through with an endless stream of circulars, guidelines and rules. And yet, all this will be secondary to human ingenuity which will always find a way through this thicket of paperwork and red tape.

The PNB incident highlights the problems of over-reliance on systems, processes and paperwork, indicating that if somehow some boxes are ticked, the problems will go away. While it might be too early to conclude that senior management was involved in the scam, it is clear that there were multiple failures at various levels. It might be informative to try and disentangle this skein of multiple threads.

First, and most baffling, how did the senior management members, the board directors and the auditors (external and internal) miss something of this size? Agreed that the liability was contingent but the liability was over `11,340 crore; that is over 25 per cent of the bank’s total capital. Any contingent liability of this size to one client or single entity should have set alarm bells ringing. At the least, it should have merited an examination of the account.

It also transpires from documents filed by PNB officials with CBI and with stock exchanges that Nirav Modi’s diamond firms—Diamonds R Us, Solar Exports, Stellar Diamonds—were caught out on 16 January 2018, when they went to seek buyer’s credit to make payments to overseas suppliers. Their calculations did not include the possibility of having to deal with a new set of bank managers.

The company management apparently bristled when the new manager asked them to provide 100 per cent cash margin for availing the facility because they did not have a sanctioned limit with the bank. In simple language, the new manager wanted Nirav Modi & Co to keep cash equivalent to the loan amount since they had not gone through the usual process of submitting to due diligence from the bank’s credit appraisal team.

This raises two questions. One: How did they manage for so long without obtaining a formal sanctioned facility with the bank? But more importantly, how did they manage to raise so many loans in foreign currency for so long without providing any security? Many institutions are known to provide a one-off facility based on business judgement and yield calculations. But Nirav Modi’s companies seemingly had unfettered access to the bank’s facilities. This does indicate some level of senior acquiescence.

Second, the ignorance is all the more appalling because Nirav Modi used PNB’s instruments to construct a web of multi-layered liabilities. This again could not have been possible without somebody up and down the chain noticing it. The notion that the PNB officers colluding with Nirav Modi kept the deals off the books also seems difficult to swallow since the counter-party banks on which the Letters of Undertaking (LoUs) were raised (Allahabad Bank or Axis Bank in Hong Kong) would have sent multiple deal stubs back to various parts of PNB’s risk management matrix—front, middle or back offices—for settlement and reconciliation. Even if we discount the possibility of complicity, it is a colossal systemic failure, one that has ripple effects across the industry.

In its letter to the stock exchanges, PNB claims: “The bank liability is contingent only. The liability shall be decided based on the law of land.” In other words, the liability is not known till there is legal clarity on who owes how much to whom. This seems to indicate that PNB senses a long-drawn legal battle ahead. But a cursory look at PNB’s website seems to indicate it’s business as usual—it is difficult to find PNB’s own press releases, the MD’s message to assuage investors and customers, or even the reports filed with stock exchanges. It is perhaps this lack of communication within the institution that kept the scam going undetected for so long.

But when all is done and dusted, two crucial questions remain unanswered. One, how all those accused of money laundering—Vijay Mallya, Nirav Modi, arms dealer Sanjay Bhandari—are able to leave the country just before a first information report is filed, or the enforcement directorate carries out raids on their homes and offices? Second, and this has national security implications: if Nirav Modi was not accompanying PM Narendra Modi to Davos as part of his official delegation as the government said, how did he photobomb a group portrait? He is standing an arm’s length away from Modi; is the PM’s security so lax that anybody hanging around in the vicinity can be allowed to stand in an official group photograph with him?

This article was originally published in New Indian Express newspaper. You can also read it here