Finance Business Act 2011 · As enacted · Part VII · Action Against Persons Carrying on Finance Business or Accepting Deposits Without Authority
42. Investigation
Official English translation. Where it differs from the Sinhala or Tamil text, the Act itself says which text prevails.
Official translationFrom Department of Government Printing, unchanged
For the purpose of ascertaining whether any person has carried on or is carrying on finance business or has accepted or is accepting deposits from the public in contravention of the provisions of section 2, the Director or any officer of the Central Bank authorized on that behalf by the Director may conduct an investigation and for that purpose may do one or more of the following –
require such person or a director, partner, member, secretary, manager, employee, agent, contractor or auditor of such person to furnish him within such period and in such manner or form as he may specify, such information as he may consider necessary;
require such person or a director, partner, member, manager, secretary, employee, agent, contractor or auditor of such person to produce for inspection books, records, files, registers and such other documents, maintained in print, electronic or any other form, relating to the business and corporate affairs of such person at such place as specified and to provide authenticated copies in any form as required, of such books, records, files, registers and such other documents;
at any time enter or authorize any other person whose services have been obtained by the Director for such purpose, to enter the premises or storage area of such person or any vehicle of such person or of any director, partner, member, secretary, manager, employee, agent, contractor or auditor of such person which is at the premises of such person and notwithstanding anything to the contrary in any other written law examine or cause to be examined such premises or storage area or vehicles and books, records, files, registers and such other documents, maintained in print, electronic or any other form, found in such premises, storage area or vehicle relating to the business and corporate affairs of such person and if necessary obtain copies, authenticated or otherwise, in any form as required, of such books, records, files, registers and such other documents, and take account of currency, bills of exchange, corporate and government securities found in such premises or storage area or vehicle or which may be kept in safe custody in such premises or storage area:
Provided further that, if the Director receives reasonable information that the books, records, files, registers and such other documents, maintained in print, electronic or any other form, relating to the business and corporate affairs of such person are kept at any place other than the premises or storage area of such person or any vehicle of such person or of any director, partner, member, secretary, manager, employee, agent, contractor or auditor of such person which is at the premises of such person, the Director or any person authorized by the Director shall have the power to enter and examine such place or vehicle and examine the books, records, files, registers and such other documents, and if necessary obtain copies, authenticated or otherwise, thereof in any form as required and take account of currency, bills of exchange, corporate and government securities found at such place.
question and record statements of or if necessary direct such person or a director, partner, member, secretary, manager, employee, agent, auditor or contractor of such person or any other person who may be acquainted with or aware of or in possession of information regarding the business or corporate affairs of such person to submit answers to the questions raised by way of an affidavit or if necessary administer oath or affirmation in accordance with the Oaths or Affirmations
Ordinance (Chapter 17) and cause questions to be asked of and record or cause the recording of statements ;
require the holding company, any subsidiary or associate company of such person, or any subsidiary or associate company of the holding company of such person, or any other company that in view of the Director has a substantial financial interest or significant management interest in such person to furnish information as the Director may consider necessary and to produce for inspection the books, records, files, registers and such other documents, maintained in print, electronic or any other form, relating to its business and corporate affairs at such time, date, place and in a manner or form as the
Director may specify and to provide in any form as required, authenticated copies of such books, records, files, registers and such other documents;
call for information by notice in writing from any person who may be acquainted with or is aware of or is in the possession of or appears to have information regarding the business and corporate affairs of such person and if required summon such person for an interview;
take any other action which he may deem necessary for the purpose.
Notwithstanding anything to the contrary in any other written law, the Director may require the Inspector
General of Police or the Deputy Inspector General of Police in charge of the Province or the Division to provide all assistance as may be necessary in the circumstances in order to carry on an investigation for the purposes of subsection (1) and report the findings of such investigation to the
Director in such manner and within such time as he may specify.
The Inspector General of Police or the Deputy
Inspector General of Police in charge of the Province or the
Division may order the Assistant Superintendent of Police of the division or the Officer in Charge of the relevant police station to carry on an investigation for the purposes of subsection (1), and such officer shall, in addition to the powers he may lawfully exercise, have the power to do mutatis mutandis any act specified in paragraphs (a) to (g) of subsection (1).
The Director may request the assistance of any
Divisional Secretary to carry on an investigation for the purposes of subsection (1) and such Divisional Secretary shall assist the Director in such manner and within such time as he may specify.
The Director shall, where he has reasons to believe that a person has carried on or is carrying on finance business, or has accepted or is accepting deposits, report such fact to the Board.
The Board shall, after considering the report of the
Director under subsection (3) and after giving the person in respect of whom the report is submitted an opportunity of being heard, determine whether such person has carried on or is carrying on finance business or has accepted or is accepting deposits in contravention of the provisions of section 2, and shall if determined that such person has carried on or is carrying on finance business or has accepted or is accepting deposits in contravention of the provisions of section 2, notify such determination, in writing, to such person accordingly. Any notice required to be given by the
Board under this section including the notice regarding the hearing, shall be deemed to be served if dispatched by registered post to the last known address of such person.
Where in any prosecution instituted under this Act, any question arises as to whether any person has carried on or is carrying on finance business or has accepted or is accepting deposits, a certified copy of the minutes of the meeting of the Board regarding the determination that such person has carried on or is carrying on finance business or has accepted or is accepting deposits shall be admissible in evidence and shall be prima facie evidence of the facts stated therein.
The Board may along with or after the notification of its determination under subsection (4) issue to such person directions as it considers necessary, including directions to divest the business of such person to a person specified by the Board or to repay the deposit liabilities or to make an application within a specified period of time to a competent court for winding up and it shall be the duty of such person to comply with such directions.
In the event of issuing directions under subsection (6) to divest the business of such person, the Board may notwithstanding provisions to the contrary in any other written law -
review any contract entered into by a depositor with such person and may vary the terms of such contract, including the terms relating to repayment, interest rates and charges where it considers that such contract has been entered into without due regard to the interests of depositors or other creditors of such person or without due regard to prudent commercial practice;
review any agreement or contract entered into by such person with any other person and upon such review, if it appears to the Board that the agreement or contract has been entered into without due regard to the interest of the depositors and other creditors of such person or without due regard to prudent commercial practice, vary the terms of such agreement or contract.
Where such person fails to comply with the directions issued under subsection (6), the Board may take such steps as it considers necessary including the winding up of such person or to take action to declare such person as insolvent by a court.
In the event of winding up of a company, the provisions of section 32 other than the provisions of subsection (3)
thereof shall mutatis mutandis apply.
In the event of winding up of a body of persons other than a company, the provisions of section 32 other than the provisions of subsections (2) and (3) thereof shall mutatis mutandis apply and the value of the assets and liabilities of such body of persons shall be ascertained in such manner and upon such basis as the liquidator thinks fit. The competent Court may at any time after making a winding up order authorize the liquidator to realize all assets and may require any person to pay, deliver, convey, surrender or transfer forthwith or within a specified time to the liquidator any money, property or books and other documents in his hands to which such body of persons is entitled. A scheme for the purpose of winding up of such body of persons shall be prepared by the liquidator and submitted for confirmation to the competent court and the winding up of such body of persons shall be carried out according to the scheme.
The Board may take such steps as it considers necessary to recover the money and property of such person determined in terms of subsection (4) and the provisions of section 51 of this Act shall mutatis mutandis apply in respect of such recovery.
The Board may publish a notice in at least one
Sinhala, Tamil and English daily newspapers circulating in Sri Lanka, that the person referred to in the determination has carried on or is carrying on finance business or has accepted or is accepting deposits in contravention of the provisions of section 2. Where such person is a body of persons, such notice may include, if that body of persons is:-
a body corporate the names and addresses of directors of such body corporate;
a firm the names and addresses of partners of that firm; and
an unincorporate body other than a firm, the names and addresses of members of such body and officers of that body.
It shall be the duty of every person to comply with any requirement imposed on him under this section and any person who-
fails to provide any information or produce for inspection any book, record, file, register or such other document, material or object required under this section;
fails to attend in person when summoned for an interview;
provides false, incomplete or incorrect or misleading information, book, record, file, register or such other document, material or object; or
obstructs the Director or any other person authorized by the Director under subsection (1) or the Inspector General of Police or the Deputy
Inspector General of Police in charge of the Province or the Division or any Divisional Secretary required or requested to assist the Director in carrying out an investigation by him, or any other person authorized by the Inspector General of Police or the Deputy
Inspector General of Police or the Divisional
Secretary, as the case may be, in the performance of any function under subsection (1) of this section, shall be guilty of an offence under this Act.
Part VIII
Offences and Penalties
Part IX