Contracts

33.  (1) It shall be an implied condition in any contract that, where, by virtue  of this Act, the permission or consent of the bank is at the time of the contract required for the performance of any term thereof, that term shall not be performed except in so far as the permission or consent is given or is not required; 

Provided that the preceding provisions of this subsection shall not apply to that term in so far as the application of those provisions to that term is inconsistent with the intention of the parties to that contract, whether by reason of their having contemplated the performance of that term in despite of the provisions of this Act or for any other reason. 

(2)  Notwithstanding anything in the bills of Exchange Ordinance, neither the provisions of this Act nor any condition,  whether express or to be implied having regard to those provisions, that any payment shall not be made without the permission of the bank under this Act, shall be deemed to prevent any instrument being a bill of exchange or promissory note. 

Obligation under other written leave

34.  Where any provision of any other written law imposes an obligation in respect of the doing of any act and the  permission or consent of the bank is, by virtue of this Act  required for the discharge of the obligation, it shall be an implied condition of the Obligation that it shall not be discharged except in so far as the permission or consent is given or is not required. 

Legal proceedings etc

35.  (1) The provisions of Part II of this Act shall apply to sums required to be paid by any judgement or order of any court or by any award as they apply in relation to other sums, and it shall be implied in any judgement or order of any court in Sri Lanka, and in any award given under the law of Sri Lanka, that any sum required to be paid by the judgement, order or award (whether as a debt, as damages or otherwise) to which those provisions apply shall not be paid except with the permission of the bank. 

(2)  Nothing in this Act shall be construed as preventing the payment by any person of  any sum into any court in Sri Lanka, but the provisions of Part II of this Act shall apply to the payment of any sum out of court, whether under an order of the court or otherwise, to or for the credit of any person resident outside Sri Lanka. 

(3)  In any insolvency proceedings, winding up of a company, or administration of the  estate of a deceased person, carried on under the law of Sri Lanka, a claim for a sum not payable without the permission of the bank shall, notwithstanding that the permission has  not been given or has been revoked, be admitted to proof as if the permission had been given and had not been revoked: 

Provided that nothing in the preceding provision of this subsection shall be construed as affecting the application of the provisions of Part II of this Act to payments by the  assignee of the insolvent’s estate, or by the liquidator, or by the executor  of the last will, or administrator  of the estate, of the deceased, or by any other person in such insolvency proceedings, or winding up, or administration. 

(4)  The provisions of this Act restricting the making of settlements shall not apply to any deed of arrangement made for the benefit of creditors generally, and the provisions of  subsection (3) shall apply in relation to proceedings under any deed of arrangement as they apply in relation to insolvency  proceedings. 

(5)  Where the permission of the bank is required under this Act for the payment of a debt the amount of which is sufficient  under section 18 of the Insolvency Ordinance, to enable  the creditor to petition for the sequestration of the estate of the debtor if the debtor commits an act of insolvency, the debt may, notwithstanding  the aforesaid requirement, be allowed to be a good  petitioning creditor’s debt, if and to the extent that the debt can be satisfied either  by a payment into court or by a payment to a blocked account. 

Persons having Sri Lanka

36.  Where a person resident in Sri Lanka leaves Sri Lanka, the bank may, before, at or after the time he leaves Sri Lanka, 
direct that, for such period as may be specified in the direction, payments by him or on his behalf and to him or to his credit and transactions in or in relation to Treasury Bills, securities or secondary securities in which he is in any way concerned shall, whether or not he continues  to be resident in Sri Lanka, be subject to such restrictios as may be specified in the direction. 

Determination of residence

37.(1) Where any question arises as to the territory in which a person is or is not resident, the territory in which such person shall, for the purposes of this Act, be treated as resident or not resident, as the case may be, shall be determined in accordance with such general or  special directions as may be given in that behalf by the Minister. 

(2)  For the purposes of this Act, the executor of the last will or the administrator of the estate of a deceased person shall, unless the Minister otherwise directs, be treated in respect of any matters in which such executor or administrator is concerned solely in his capacity as such, as resident- 

(a)  if directions given under subsection (1) apply in the case of such deceased person in the territory in which he is required by such directions to be treated as having been resident ; or 

(b)  in any other case, in the territory where at the time of his death the deceased person was resident. 

Directions to bankers, authorised dealer, etc.

38.  The bank may give- 

(a)  to bankers and to persons who are concerned with the keeping of any register in Sri Lanka or are entrusted with the  payment of capital moneys, dividends or interest in Sri Lanka, directions as respects the exercise of any functions exercisable by them by virtue of, or by virtue of anything done under, any provision of the Act, and 

(b)  to authorised dealers- 
(i)  such directions as aforesaid, or 

(ii)  directions as to the terms on which they are to accept gold or foreign currency, or 

(iii)  directions requiring them to offer their gold or specified foreign exchange for sale to the Central Bank on such terms as may be set out in the directions. 

Furnishing of information and production of documents

39 (1) Without prejudice to any other provisions of this Act, the bank may give to person in, or resident in Sri, Lanka directions requiring him- 

(a)  to furnish, within such time and in such manner as may be specified in such directions, to the bank or to any person designated in such directions as a person authorised to required it, any information in his possession which the bank or the person so authorised, as the case may be, may require for the purpose  of securing compliance with, or detecting evasion of, the provisions of this Act, or where such person does not have the information in his possession, to obtain such information in his possession, to obtain such information from any such person in Sri Lanka in abroad as may be specified in such directions and to furnish such information to the bank or to the person authorised; or 

(b)  to attend in person before any officer specified in such direction at such place, at such date and at such time as may be specified therein so that he may be examined on any such matter or matters as may be specified in such directions. 

(1A) Any person examined under the provisions of subsection (1) (b) shall answer truly all questions put to him by the officer examining him. 

(2)  A person required by the directions given under subsection (1) to furnish information shall also produce such books, accounts or other documents in his possession or control as may be required, for the purpose referred to in 
subsection (1), by the bank or by the person authorised to require the information, as the case may be. 

(3)  Nothing in the preceding provisions of this section shall be taken to require any person who has acted as counsel or proctor for any person to disclose any privileged communication made to him in that capacity. 

(4)  Where a person is convicted for failing to give information or produce any books, accounts or other document when  required so to do under this section, the court may make an order requiring the offender, within such period as may be specified in the order, to comply with the requirements to give the information or produce the books, accounts or other documents. 

(5) In this section, “bank” includes any officer of the Department of Inland 
Revenue Department of Customs generally or specially authorised by the Monetary Board to exercise the powers conferred by this section. 

Search of premises

40.(1) If the Head of the Department of Exchange Control or any such offer 
Who is designated as an Assistant to him or any such public offer not below 
the rank of Assistant to the Head of Department of Government, as may be authorised by the Head of the Department of Exchange Control to act for the purposes of this section is satisfied- 

(a)  that there is reasonable ground for suspecting that an offence under this Act has been or is being committed and that evidence of the commission of the offence is to be found at any premises or any vessel, vehicle or aircraft or with 
any person; or 

(b)  that any books, accounts or other documents which ought to have been produced under section 39 and have not been so  produced are to be found at such premises or in any such vehicle, vessel or aircraft or with such person; or 

(c) that any foreign currency is to be found at any such premises or in any such vehicle, vessel or aircraft or with any such person, the Head of  the Department of Exchange Control or such officer may enter such premises or, as the case may be, any premises upon which the vehicle, vessel or aircraft or person may be, and search such premises or, as the case may be, such vehicle, vessel or aircraft or person. 

(2)  The Head of the Department of Exchange Control or such officer, as the case may be, may seize any article which is  found in the premises or in the vehicle, vessel or aircraft or with the person and which he has reasonable grounds for  believing to be evidence of the commission of any offence under this Act, or  any books, accounts or documents which he has reasonable grounds for believing ought to have been produced under section  39: 

Provided that no female shall, in pursuance of a search under this section, be  searched except by a female. 

(3)  Where by virtue of this section a person has any power to enter into any premises, he may use such force as is  reasonably necessary for the purpose of exercising that power. 

Where by virtue of this section, an officer has power to search a person, such officer may examine such person, and such person shall answer truly all questions put to him by the officer examining him. 

(4)  No person shall obstruct  any other person in the exercise of any powers conferred on that other person by virtue of the preceding provisions of this section. 

(5)  Any person empowered to do any act under this section may, if the thinks fit so to do, obtain the assistance of a peace  officer for doing such act. 

Restriction of select articles

41.  (1) Any article seized by any authority under or by virtue of this Act which  the authority has reasonable ground for  believing to be evidence of the Commission of an offence against this Act may be retained for a period of three 
months or, if within that period there are commenced legal proceedings in respect of such an offence in which the article is, or can properly be, adduced in evidence, until the final determination of those proceedings. 

(2)  The powers conferred by this section in relation to any article shall be in addition to, and not in derogation of, any  powers otherwise exercisable  in relation thereto. 

Destruction, etc., of documents and false statement 

42.  No person in or resident in Sri Lanka Shall- 
 
(a)  With intent to evade the provisions of this Act, destroy, mutilate, deface, secrete or remove any books, accounts or other documents, or 

(b)  in furnishing any information for any of the purposes of this Act make any statement which he knows to be false in a  material particular, or recklessly make any statement which is false in a material particular. 

Application to State

43.  This Act shall bind the State and shall apply to transaction by a Government  Department or any person acting on behalf of the State. 

Exemptions

44.  Any provision of this Act imposing any obligation or prohibition shall have Effect subject to such exemptions as may be granted by order of the Minister, and any such  exemption may be either absolute or conditional. 

Decisions of Bank

45.  Every decision of the bank to grant or refuse any permission under this Act  Or to revoke any permission which has been  so granted, or to rescind, add to or vary any conditions or to extend or reduce any time limit to which the permission granted is subject, shall be communicated in writing  by the bank to the person by whom application for the permission was made or, as the case may be , to whom the permission was granted. 

Appeals 

46.  A person in regard to whom the bank makes a decision under this Act may, If he is dissatisfied with that decision, make a written appeal against the decision to the Minister within ten days after that decision is communicated to him. 

Finality of decisions

47.  A decision of the bank against which an appeal is not made in accordance. with the provisions of section 46, and a  decision of the Minister on an appeal made in accordance with those provisions, shall be final and conclusive and 
shall not be subject to review or be called in question in any court. 

Provisions relating to permission consent or authority

Any permission, consent or authority granted under this Act may be- 

(a)  general or special, 
(b)  absolute or conditional 
(c)  limited so as to expire on a specified date, unless renewed, and 
(d)  varied or revoked 

Burden of proof of permission

49.  In any prosecution of a person for an offence against this Act, the burden  or proving that he had obtained the permission or consent of the bank for doing  the act or making the omission which constitutes the offence shall be on him. 

Presumption relating to foreign currency

49A. In any prosecution for the offence of contravening any of the provision  of this Act in relation to foreign currency, it shall be presumed, until the contrary is proved, that the currency in respect of which the offence is  alleged to have been committed is genuine. 

Admissibility of certain documents

49B. In any legal proceedings in respect of any offence under this Act, any  of the following documents may be produced in court and given in evidence 
Against any accused and shall be prima facie evidence of the matters, 
transactions or accounts therein contained:- 

(a)  a certified copy of a banker’s book or of any extract thereof obtained from the manager or principal accountant of the bank; 

(b)  a certified copy of any book or other record required by law to be maintained by a company or a certified copy of any extract thereof, obtained from a director or secretary of the company; and 

(c)  a certified copy of any document or of an extract thereof in the proper custody of an officer of a foreign Government,  and obtained from such officer. 

Indemnity for sets done in good faith

50.  No person shall be liable in any suit or other legal proceeding for any act done, or purporting to be done, in good faith in pursuance of the powers Conferred by or under this Act,  or for the purpose of carrying out the provisions of this Act. 

Duty of officers and servants to maintain secrecy

50A. (1) Except in the performance of his duties under this Act, every officer or servant of the Department of Exchange Control of the Central Bank shall Preserve, and aid in preserving, secrecy with regard to all matters that may  come to his knowledge in the performance of his duties under this Act; and any such officer or servant who communicates any such officer or servant  who communicates any such matter to any person other than- 

(a)  the person to whom that matter relates or his authorised representative, or 
(b)  the Monetary Board, or 
(c)  the Governor of the Central Bank or an officer of the Central Bank authorised by such Governor to obtain information regarding that matter, or 
(d)  the Secretary to the Ministry of  Finance, or 
(e)  a public officer authorised by the Minister to obtain information regarding that matter, or 
(f)  a person to whom it is necessary to communicate that matter for the purpose of securing compliance  with or detecting evasion of, any provision of this Act, or of any other written law, 

or suffers or permits any unauthorised person to have access to any books, papers or records of the aforesaid department or in the possession or custody, or under the control, of the head of that department, shall be guilty of an offence. 

(2)  No officer or servant of the Department of Exchange Control shall, in any legal proceedings to which the Monetary  Board is not a party, be compellable, except by order of the court, to produce any book or document or to divulge or 
communicate any mater coming under his notice in the performance of his duties under this Act. 

(2)  No officer or servant of the Department of Exchange Control shall, in any legal proceedings to which the Monetary  Board is not a party,  be compellable, except by order of the court, to produce any book or document or to divulge or communicate any matter coming under his notice in the performance of his duties under this Act. 

(3)  For the purposes of this section any officer authorised by the Monetary 
Board under subsection (5) of section 39 shall be deemed to be an officer of the Department of Exchange Control of the Central Bank. 

Offences

51.(1) Any person in or resident in Sri Lanka who contravenes any provision 
of this Act or of any regulation made under this Act or fails to comply with 
any direction given or condition or requirement imposed under this Act  shall be guilty or an offence, notwithstanding that the offence may, by virtue of Part IV of this Act, be also punishable under the provisions of the customs Ordinance. 

(2)  Any person who attempts  to commit an offence against this Act shall be guilty of an offence. 

(3)  Where an offence against this Act is committed by a body corporate, any person who at the time of the commission of  the offence was a director, general manager, secretary or other similar officer of the body corporate, or was 
purporting to act in any such capacity, shall be deemed  to be guilty of that offence, unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances. 

(4)  Any person who commits an offence under this Act shall-
(a)  On conviction after summary trial before a Magistrate, be liable to imprisonment of either description for a term not  exceeding eighteen months, or to both such imprisonment and a fine; or 
(b)  on conviction before the High Court, be liable to imprisonment of either description for a term not exceeding five years, or to both such imprisonment and a fine; and where the offence is concerned with any gold, currency, security goods or other property, the court may, if it thinks fit so to do, order the gold, currency, security, goods, or property to be forfeited; and any gold  currency, security, goods or property forfeited under this subsection shall be dealt with or disposed of in such manner as the Minister may direct. 

(5)  Except in the case of a body corporate, the maximum fine which may be imposed for an offence against this Act shall be fifteen thousand rupees so, however, that where the offence is concerned with any gold, currency, security, payment, goods or other property, and does not consist only of a failure to  give information or produce books, accounts or other documents with respect thereto when required so to do under section 39, a larger fine may be imposed not exceeding three times the amount or value of the gold, currency, security, payment, goods or property. 

(6)  A Magistrate before whom a prosecution is instituted against any person for an offence against this Act may,  notwithstanding anything in the Code of  Criminal Procedure Act, No. 15 of 1979, decide whether  he will try that 
person summarily or take non summary proceedings in respect of that offence; 

Provided that the preceding  provisions of this subsection shall not affect or prejudice any right or power of the Attorney-General under the aforesaid code of  Criminal Procedure Act. 

(7)  No prosecution in respect of any offence under this act may be commenced ($ 13, Law 39 of 1973) except at the instance of, or with the sanction of , the bank: 

Provided that this subsection shall not apply to a prosecution commenced by, or at the instance of, the Attorney - General. 

(8)  All offences under this Act shall be cognizable offences for the purposes of ($ 13, Law 39 of 1973) the application of the provisions of the code of Criminal procedure Act, notwithstanding anything contained in the First Schedule to that Act. 

(9)  Notwithstanding anything in any other law any offence under this Act ($ 13, Law 39 of 1973) committed outside Sri Lanka may be tried before a Magistrate having jurisdiction in the division of Colombo or before the High Court holden in  the judicial zone of Colombo. 

Imposition of penalties by the bank 

52.  (1) Before the commencement of a prosecution under this Act, the bank may in writing require any person who in its opinion has committed a offence under this Act to pay as a penalty a sum not exceeding two thousand rupees, ($ 14, Law 39 of 1973) within such period as may be specified in the notification of such requirement. 

(2)  Where the offence referred to in subsection (1) is concerned with any gold, currency, security, payment, goods or other property, and is not only a failure to give information or produce books, accounts or other documents with respect thereto when required so to do under section 39,- 

(a)  the bank may be writing require such person to pay as a penalty within such period as may be specified in the notification of such requirement an additional sum not exceeding three times the amount or value of the gold, 
currency, security, payment, goods or property; and 

(b)  the bank may, if it thinks it fit so to do, in writing require gold, currency, security goods or property  to be delivered to the bank. 

(3)  Every requirement for delivery to the bank made under subsection (2) (b) shall be communicates to the person in whose possession the gold currency, security, goods or property required to be delivered is, and such person shall, upon receipt of such communication, deliver to the bank such gold, currency, security, goods or property. 

(4)  Any gold, currency, goods or property delivered to the bank under this section shall be dealt with or disposed of in such manner as the Minister  may direct. 

(5)  Any sum of money imposed as penalty under this section shall be  disposed of in the following manner:- 

(a)  One-half of that sum shall be forwarded to the Secretary to the Treasury to be credit to the Consolidated Fund; and 

(b)  the other half of such sum may be divided among any informer or informers who, in the opinion of the bank, supplied such information as led to the detection of the offence referred to in subsection (1) , or may be credited to the Consolidated Fund. 

(6)  No person against whom a requirement is made by the bank under this section shall except with the permission of the bank, sell, hypothecate, alienate, transfer or dispose of in any manner whatsoever any immovable property or securities belonging to him until such requirement is complied with or until the expiry of a  period of two months from the end of the period specified in such order, whichever is earlier: 

Provided, however, that where on the failure of such person to comply with such requirement, any action is instituted against such person in respect of the offence committed by him in any court before the expiry of the aforesaid period of two months, the court may direct that the prohibition on disposal of property referred to in the preceding provisions of this subsection shall continue for such further period as the court may determine. 

(7)  Any person against whom a requirement is made by the bank under this section may, within twenty one days after the notification of the requirement to him, appeal therefrom in writing to the Minister.  The appeal shall state the grounds of objection to the requirement. 

(8)  On an appeal made under subsection (7), the Minister may confirm, reduce, increase or annul the penalty imposed, or issue such directions in respect of the gold, currency, security, goods or  property required to be  delivered to the bank as he may think fit. 

(9) Where any person pays to the bank the penalty imposed under this section, or pays the penalty and delivers to the bank the gold, currency, security, goods or property required to be delivered to the bank under this section, as the case may be, such person shall not be liable to a prosecution for the offence in respect of which the penalty was imposed or the requirement made. 

Regulations, forms etc. 

53.  (1) The Minister may make such regulations as may be necessary for carrying out the principles and provisions of  this Act. 

(2)  No regulation made under subsection(1) shall have effect unless it is approved by Parliament and is published in the Gazette. 

(3)  All applications, returns and other documents made or furnished under this Act shall be in such form as the bank may from time to time specify or provide for the purpose. 

Interpretation 

54.  (1) In this Act, unless the context otherwise requires- “authorized dealer” means, in relations to gold or any foreign currency, a commercial bank for the time being authorized under section 4 to act for the purposes of this Act as an authorized dealer in relation to gold or that foreign currency;“bank” or “Central Bank” means the Central Bank of Sri Lanka established by the Monetary Law 

“banker’s book” includes any ledger, day book cash book, account book and ($ 15, Law 39 of 1973) any other book used in the ordinary business of a bank; 

“banking company” has the same meaning as in the Companies Act;($ 15, Law 39 of 1973) 

“bearer certificate” means a certificate of title to securities by the delivery of which(with or without endorsement) the title to the securities is transferable; 

“blocked account” has the meaning assigned to it by section 31 (7); 

“Certificate of  title to securities” means any document of title whereby a person recognizes the title of any other person to securities issued or to be issued by the  first mentioned person, and in the case of any such document with coupons (whether attached or on separate coupon  sheets) includes any coupons which have not been detached; 

“certified copy” of any book, record, extract or document, means a copy of the  ($ 15, Law 39 of 1973) 
book, record, extract or document, together with a certificate written at the foot of such copy that it is a true copy of such book, record, extract or document; and that such book, record, extract or document is still in proper custody, such certificate being dated and subscribed by the person in whose custody it is, with his name and official title; 

“company” means a company registered under the enactments relating to ($ 15, Law 39 of 1973) companies from time to time in force in Sri Lanka or any other country; 

“coupon” means a coupon representing dividends or interest on a security; 

“currency” includes coins, currency notes, bank notes, postal orders, ($ 5, Law 17 of 1971) money orders, cheques, drafts, travellers’ cheques, letters of credit, bills of exchange and promissory notes; 

“foreign assets” means any movable or immovable property outside ($ 5, Law 17 of 1971) Sri Lanka of any class or description whatsoever and without prejudice  to the generality of the preceding provisions of this definition includes foreign exchange, foreign currency, gold and securities; 

“foreign currency” means any currency other than Sri Lanka currency ($ 5, Law 17 of 1971) and includes any currency payable by a foreign Government or institution to a person in, or resident in, Sri Lanka in respect of his pension or other gratuities due to him; 

“foreign exchange” means foreign currency and includes all deposits,credit and balances payable in any foreign currency, and any such drafts, travellers’ cheques, letters of credit and bills of exchange as are expressed or drawn in Sri Lanka currency but payable in any foreign currency; 

“gold” means gold coin or gold bullion; 
“Minister” means the Minister in charge of the subject of Finance; 
“Monetary Board” means the Monetary Board of the Central Bank; 
“Policy of assurance” means any policy securing the payment of a  capital sum or annuity on the occurrence of a specified event which is certain to happen and includes- 

(a)  any policy by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life and 
(b)  any policy securing the payment of an immediate annuity; 

and the reference in this definition to the occurrence of a specified event which is certain to happen shall include the occurrence, which is certain to happen, of one of specified events none of which by itself is certain to happen; 

“prescribed” means prescribed by the Minister by Order published in the Gazette. 
“rupees” means Sri Lanka rupees; 
“secondary securities” has the meaning assigned to it by section 19; 
“securities” means shares, stock, bonds, capital in any partnership, notes (other than promissory notes), debentures, debenture stock, units under a unit trust scheme and shares in an oil royalty; 

“specified foreign exchange” has the meaning assigned to it by section 6; 
“Sri Lanka currency” means currency which is expressed or drawn in Sri Lanka rupees; 
“tourist, airline or shipping service” means service of any class or ($ 15, Law 39 of 1973) description prescribed to be a tourist, airline or shipping service for the purposes of this Act; 
“unit trust scheme” means any arrangements made for the purpose, or  having the effect, of providing for persons having funds available for investment, facilities for the participation by them, as beneficiaries under a trust, in profits or income arising from the acquisition, holding, management or disposal of any property whatsoever; 
“unit” means in relation to a unit trust scheme, a right or interest (whether  described as a unit, as a sub unit or otherwise) which may be acquired under that scheme. 

(2)  Any provision of this Act (however worded) the effect of which is to prohibit the doing of any act where a person to or by whom the act is to be done or who stands in a specified relation to any property possesses any specified attribute as to residence or otherwise shall, where the act is done to or by two  or more persons, or, as the case may be, where two or more person stand jointly in that relation to the property operate to prohibit the doing of that act if any of those persons possess that attribute; and any provision of this Act imposing an obligation on any person to do an act if he possesses any specified attribute as to residence or otherwise shall, in relation to any act which can only be done by two or more persons jointly- 

(a)  where all those persons possess that attribute, operate to impose a joint obligation on all of them to do the act, and 
(b)  where some only of them possess that attribute, operate to impose a separate obligation on each one of them who possesses that attribute to do all he can to secure the doing of the act. 

(3) Any power conferred by this Act to require declaration which are to be furnished on any occasion shall include a power to require that the declarations shall be made by specified persons and shall be verified in a special manner. 

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