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"6(3) Any Officer in charge of police station when required by the Competent Authority, shall take all steps, including inquiry, investigation or survey in respect of any person, place, property, documents, books of account, etc., for the purpose of tracing and identifying the properties."

28. Steps taken under Criminal law for bringing the offender to book is an action in personam and steps taken to appropriate the properties of an offender is an action in rem. Section 5 of the TNPID Act describes the "offence" and the "punishment". Section 3 of TNPID Act provides for a procedure, similar to the one provided under Criminal Law Amendment Ordinance, 1944 for attaching the properties of a financial institution that had defaulted in repaying the depositors. A Competent Authority is appointed by the Government for safeguarding the financial interests of the depositors. If the argument of the learned counsel for the accused is accepted, in a given case, if a financial establishment does not have any assets for the Government to proceed under Sections 3 and 4, the result will be that, the offender will have to be left scot-free. This will defeat the very purpose of the TNPID Act. Section 6(3) of the Rule merely casts a duty on the Police to assist the Competent Authority for the purpose of identifying the properties stashed by the offender. To say that, only the Competent Authority will have power to conduct investigation and prosecute the offender, would mean conferring police powers on a Revenue Official for which there is no provision either in the Act or in the Code. Section 5 of TNPID Act creates an offence made punishable upto 10 years. TNPID Act will fall within Classification II of the First Schedule of the Code of Criminal Procedure, 1973 and the offence under Section 5 will be cognizable and non-bailable, thereby empowering the Police by virtue of Sections 4 and 5 the Code of Criminal Procedure, 1973 to take up the investigation and register FIR under Section 154 of the Code. Hence, this contention is rejected.

31. Mr.Nithyaesh, learned counsel placed heavy reliance upon the non obstante clause used in Section 74(1)(a) of the Companies Act to drive home the point that, if a Company defaults in repaying the depositors, only the provisions of Section 74 can be invoked and not the TNPID Act. Section 74(1)(a) permits a Company to prepare a Scheme for repayment and the non obstante clause used therein would mean that, if any other law prescribes such a Scheme of repayment, then the provisions of Section 74 will supersede that law. Section 5 of the TNPID Act does not envisage preparation of any Scheme of repayment. It simply states that, if the financial establishment defaults in repaying a depositor, the offence is made out without anything more. No mens rea is even required. May be it is draconian, but nevertheless, its constitutional validity has been upheld by a Full Bench of this Court and the Supreme Court and it is too late in the day to challenge the vires of the Act. The Supreme Court, in K.K.Baskaran vs. State of Tamil Nadu [(2011) 3 SCC 793], New Horizon Sugar Mills Limited v. Government of Pondicherry [(2012) 10 SCC 575] and Soma Suresh Kumar vs. Government of Andhra Pradesh [(2013) 10 SCC 677] have dealt with all these issues which cannot be re-opened now. The Companies Act is a Central Legislation and it applies throughout India. There are several States where no Act similar to TNPID is available. Though Companies Act also provides for a mechanism for repayment of deposits, provisions of the TNPID Act are in addition to the mechanism provided by the Companies Act, because TNPID Act was introduced from the stand point of protecting the interest of depositors and to instil fear in the mind of fly-by-night financial establishments. Therefore, the provisions of the Companies Act and the provisions of the TNPID Act operate in two different fields.

33. The contention of Helios is that, they are not into the business of finance, and that they are into the Information Technology Sector.

34. The learned Advocate General and Mr.Sankar Narayanan, learned Amicus Curiae took a stand that TNPID Act would apply to any Company that refuses to pay back its depositor. This argument was strongly refuted by Mr.Ramakrishnan, learned Amicus Curiae and the learned counsel for the accused. The learned Advocate General and Mr.Sankar Narayanan brought to the notice of this Court the changes that were effected to the TNPID Act by the 2003 amendments. They contended that, when the Act was originally passed in 1997, it clearly excluded a Company registered under the Companies Act, 1956 and also a Non-Banking Financial Company as defined in Section (f) of Section 45-I of Reserve Bank of India Act, 1934, but whereas, by the 2003 amendment, a Company registered under the Companies Act, 1956 has been included and the specific exclusion of Non-Banking Financial Companies in the 1997 Act has been left out by the 2003 amendment. Therefore, it is their contention that, if the legislature had wanted to exclude incorporated Companies from the purview of the TNPID Act, they would have excluded it specifically and would have included Non-banking Financial Companies specifically. It is true that when TNPID Act was passed in 1997, it specifically excluded Companies incorporated under the Companies Act, 1956 and Non-Banking Financial Companies. The bad experience of the Government showed that, fly-by-night operators floated incorporated Companies for their finance business in order to get out of the net of the TNPID Act. In order to curb that, TNPID was amended in the year 2003. Companies incorporated under the Companies Act were included and the specific exclusion of Non-Banking Financial Companies was deleted, because, NBFCs, by their very nature of business, will fall within the definition of the word 'Financial Establishment'. Non-Banking Financial Establishments/Institutions can be proprietorship or partnership or incorporated Companies. Their very nature of business is to receive deposits and earn profits through the deposits. Had there been no reference to Incorporated Companies and Non-Banking Financial Companies in the definition of the word 'Financial Establishment' as in the Pondicherry Act, both of them would have automatically come within the purview of the TNPID Act, if the former (Incorporated Company) is in the business of receiving deposits as held by the Supreme Court in New Horizon Sugar Mills Ltd. v. Govt. of Pondicherry [(2012) 10 SCC 575]. Though superficially New Horizon Sugar Mills Ltd. case may appear to be bringing even an ordinary Sugar Mill incorporated as a Company within the net of TNPID Act and Pondicherry Act, yet, on a closer scrutiny of the facts in that case, it can be seen that there was a nexus between M/s PNL Nidhi Ltd. and New Horizon Sugar Mills Ltd. on account of which New Horizon Sugar Mills Ltd. was brought into the net of Pondicherry Act.

"45-I(f)"non-banking financial company" mean--
(i) a financial institution which is a Company;
(ii) a non-banking institution which is a company and which has as its principal business the receiving of deposits, under any scheme or arrangement or in any other manner, or lending in any manner;
(iii) such other non-banking institution or class of such institutions, as the Bank may, with the previous approval of the Central Government and by notification in the Official Gazette, specify."

42. In Section 45-I(f), the expression "which has as its principal business the receiving of deposits, under any scheme or arrangement or in any other manner" is somewhat similar to the definition of the word "Financial Establishment" in TNPID Act. One difference is, the word "principal" is not there before the word "business" in Section 2(3) of TNPID Act. From an analysis of these two Sections, it is clear that, the Legislature wanted to bring into the net of TNPID both Non-Banking Financial Companies and incorporated Companies which are into the business of receiving deposits within the purview of TNPID Act. It is not necessary that an incorporated Company should be a Non-Banking Financial Company for being in the business of receiving deposits. An incorporated Company can still do the business of receiving deposits without getting registered as a Non-Banking Financial Company with the Reserve Bank of India. Hence, such contentions will no doubt be covered by TNPID Act. As stated earlier, Non-Banking Financial Companies by their very nature of business will fall within the purview of TNPID Act after it was specifically excluded in 2003. However, it should not be misconstrued that if the major business activity of an incorporated Company is manufacturing, but a minuscule activity is also into finance, they would fall out of the purview of TNPID Act. Even if a small part of their activity is into the business of receiving deposits and generating profits through deposits directly immaterial of the fact that the Company's major activity is something else, yet, such a Company will fall within the definition of the word "Financial Establishment" in Section 3 of the TNPID Act.