New rules for chit funds and deposit schemes
Taking advantage of low financial literacy and greed of people looking for higher returns on their investments, many fraudulent deposit schemes and chit funds have collected huge amounts of money and vanished. In the last few years, we heard about alleged frauds relating to companies such as Sarada Group, Rose Valley, Gold Sukh, and SpeakAsia; in which many investors lost millions of rupees. Despite these and more, there is still no law that can recover the investors’ money. To curb such fraud deposit and chit funds schemes, the Union cabinet has given its nod to table The Banning of Unregulated Deposit Schemes and Chit Funds (Amendment) Bill, 2018 in the Parliament. Let’s read more about the proposed Bill.
Need for the new Act
In the previous two Union Budget speeches, 2016-17 and 2017-18, the finance minister had stated the need for a comprehensive central legislation to deal with illicit deposit-taking schemes, citing rising instances of fraud involving such companies.
For starters, the Bill clearly defines ‘deposit takers’ of various schemes, to include all possible entities (including individuals) receiving or seeking deposits. At the same time, ‘deposits’ have been defined in a manner that the companies will not be able to say that the deposits collected are a part of their business revenue.
The Bill also contains provisions that prevent deposit takers from promoting, operating, issuing advertisements or accepting deposits in any unregulated deposit scheme (UDS). It proposes three different types of offences here, namely: running of UDS, fraudulent default in a regulated deposit scheme, and wrongful inducement in relation to a UDS. Heavy fines and punishments are also proposed. There is also provisions for repayment of deposits, attachment of properties and assets for repayment to depositors.
Once enacted, “This Act will not only prohibit unregulated deposit-taking activities but will also provide deterrent punishment for promoting or operating a UDS,” said Sangeeta Lakhi, partner, Rajani Associates. Although there are other legislations such as Companies Act, they have their own limitations. “We have seen many companies collect deposits from the public and then refuse to repay, claiming bad market or no funds. Companies and institutions running such schemes exploit existing regulatory gaps and lack of strict administrative measures to dupe poor and gullible people,” said Lakhi. The Bill tackles this by allowing authorities to act before a fraud takes place. “Existing legislations come into play after a fraud has occurred. The proposed law would prohibit Ponzi scheme frauds from occurring by banning all un-regularized deposit-taking schemes,” said Rajesh Narain Gupta, managing partner, SNG & Partners.
Amendments in Chit fund Act
According to the Ministry of Corporate Affairs, Government of India, till 31 October 2014 there were more than 5,000 listed chit fund companies in India. Some have even been running for over 100 years. However, the Chit Fund Act came up only in 1982. Before that, chit funds were not governed by any central law. Now, a chit fund company needs to obtain a certificate of incorporation (CIN) from the Registrar of Companies and then apply for registration with chit fund department of its respective state. You can verify the details of any chit fund company by looking up its CIN in the Ministry of Corporate Affairs’ website at www.mca.gov.in.
A shortcoming of this Act is that it vests the responsibility of framing the rules with the state governments. However, “A few state governments have not framed any rules to implement the central Act,” said Gupta.
There are other flaws in the existing Chit Fund Act. For instance, chit fund companies can collect subscriptions up to 10 times its net worth; it can legally conduct bids even when only two members of a group are present; there is no deposit insurance for investors; and there is no regulator. If a registered chit fund company files for bankruptcy, neither the government nor the Reserve Bank of India can help the investors.
Sometimes, money collected by chit funds is used for other businesses of the company. However, “Many investors are not aware of its risks ...and thus get taken in by promises of higher-than-market returns,” said Gupta.
The proposed Bill aims to overcome these loopholes. While it retains the requirement of at least two members for conducting a draw and preparing the minutes of the meeting, it proposes that the draw of chits must be recorded on video. Also, these two members may now join the proceedings via videoconferencing, and sign the minutes within 2 days, said Gupta. The Bill also proposes that state governments are to designate a competent authority to ensure repayment of deposits, in case of default.
However, some of the consumer activists doubt whether the new laws can check fraudulent deposit taking. “Unless the focus is on implementation without political interference and strengthening the judicial mechanism, any amendment to the law is not going to be of much help to the citizens,” said Jehangir Gai, a Mumbai-based consumer activist.
While there are quite a few financial schemes from registered companies in India, which have been running deposit schemes and chits funds for decades, Mint Money does not recommend investments in them.