Thursday, August 28, 2014
Wednesday, August 27, 2014
Dhananjay Mahapatra, TNN | Aug 9, 2014, 02.30AM IST
NEW DELHI: Recovering money if a cheque bounces will now be a lot more tedious and costly.
In a landmark judgment, the Supreme Court has changed the ground rule under Section 138 of Negotiable Instruments Act to prosecute a person who had presented the cheque which bounced for insufficiency of funds.
Earlier, a case under Section 138 could be initiated by the holder of the cheque at his place of business or residence. But, a bench of justices TS Thakur, Vikramjit Sen and C Nagappan ruled that the case has to be initiated at the place where the branch of the bank on which the cheque was drawn is located.
This means, if a man from Delhi gave a cheque drawn on a Delhi bank for buying something in Chennai and it bounced for insufficiency of funds, then the aggrieved person will have to travel all the way from Chennai to Delhi to initiate prosecution under Section 138.
And the judgment would apply retrospectively. This means, lakhs of cases pending in various courts across the country would witness a interstate transfer of cheque bouncing cases.
Writing the judgment for the 3-judge bench, Justice Sen said: "We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country." However, the court said that in those cases where recording of evidence has started after issuance of summons to the accused, would continue to be tried at the place they were instituted.
"To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured," the bench said.
The bench said: "In this analysis, we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located."
"An interpretation should not be imparted to Section 138 which will render it as a device of harassment, that is, by sending notices (about the bouncing of cheque under Section 138) from a place which has no casual connection with the transaction itself, and/or by presenting cheques at any of the banks where the payee may have an account," the bench said.
"It is also now manifest that traders and businessmen have become reckless and incautious in extending credit where they would heretofore have been extremely hesitant, solely because of the availability of redress by criminal proceedings," the bench said referring to the rapid increase in institution of cases under Section 138 of NI Act after it was made a criminal offence.
"Today's reality is that every magistracy is inundated with prosecutions under Section 138 of the NI Act, so much so that the burden is becoming unbearable and detrimental to the disposal of other equally pressing litigation," the court said.
The court said for filing a criminal case under Section 138 NI Act, the holder of the cheque must have to travel to the place where the branch of the bank on which the cheque was drawn is located. In the alternative, he could institute a case under Section 420 (cheating) at the place of his residence or where he ordinarily carries out business.
"If the payee succeeds in establishing that the inducement for accepting a cheque which subsequently bounced had occurred where he resides or ordinarily transacts business, he will not have to suffer the travails of journeying to the place where the cheque has been dishonoured," it said.
"All remedies under the IPC and Crpc are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 of NI Act. And of course, he can file a suit for recovery wherever the cause of action arises dependent on his choosing," the court said.
Tuesday, August 26, 2014
தி இந்து:செவ்வாய், ஆகஸ்ட் 26, 2014
வங்கிகளின் மொத்த வாராக் கடனில் 36 சதவீதம் 6 துறைகளால் ஏற்பட்டுள்ளது என்று ரிசர்வ் வங்கி வெளியிட்ட ஆண்டறிக்கையில் குறிப்பிடப்பட்டுள்ளது. கட்டமைப்பு, உலோகம், ஜவுளி, ரசாயனம், பொறியியல் மற்றும் சுரங்கத் தொழில் ஆகியவை வாராக் கடன் அளவு உயர காரணமாக இருந்துள்ளதாக தகவல்கள் தெரிவிக்கின்றன.
வாராக் கடன் அளவு 4.1 சதவீதமாக உயர்ந்துள்ளது. முந்தைய ஆண்டில் இது 3.4 சதவீதமாக இருந்தது. முன்னுரிமை தொழில்களுக்கு அளிக்கப்பட்ட கடன் தொகையில் வாராக் கடன் அளவு முந்தைய ஆண்டுடன் கடந்த நிதி ஆண்டில் குறைந்துள்ளதாக அறிக்கை தெரிவிக்கிறது.. கடன் வழங்குவதற்காக ஒதுக்கப்பட்ட அளவில் இத்துறைக்கு 30 சதவீதம் வழங்கப்பட்டுள்ளது.
கடந்த சில ஆண்டுகளாக முன்னுரிமை அல்லாத துறைகள் வங்கிகளில் கடன் பெற்றுவிட்டு செலுத்தாத நிலை தொடர்கிறது. வங்கிகளின் செயல்பாட்டு அமைப்பையே இது சிதைக்கும் வகையில் உள்ளது என்று ஆர்பிஐ அறிக்கை குறிப்பிடுகிறது.
வங்கிகளின் சொத்து விற்பனை மூலம் மார்ச் காலாண்டில் திரட்டப்பட்ட தொகை ரூ12,710 கோடியாகும். முந்தைய காலாண்டில் இது ரூ. 3,570 கோடியாக இருந்தது. வெளிநாட்டு வங்கிகளின் வாராக் கடன் அளவும் 3 சதவீதத்திலிருந்து 3.9 சதவீதமாக உயர்ந்துள்ளதாக ஆர்பிஐ வெளியிட்ட அறிக்கையில் குறிப்பிடப்பட்டுள்ளது.
FBZ 23 Aug 2014
In its biggest-ever crackdown on a large-scale illicit money pooling scheme estimated at nearly Rs 50,000 crore, regulator Sebi today ordered immediate closure of unauthorised collective investment schemes run by PACL Ltd and refund of investors' money within three months.
Besides, the capital markets regulator also said it is initiating further proceedings against the company and its nine promoters and directors for fraudulent and unfair trade practices, as also for violation of Sebi's CIS Regulations, among others, as per a direction from the Supreme Court.
As per Sebi's 92-page order, the total amount mobilised by the company, "by its own admission" comes to a whopping Rs 49,100 crore and "this figure could have been even more if PACL would have provided the details of the funds mobilized during the period of April 1, 2012 to February 25, 2013".
The number of customers through which the money could have been collected is estimated at around 5.85 crore, which includes the customers who said to have been allotted land and who are yet to be allotted the land, Sebi said.
This is the biggest ever amount, as also the largest number of investors, so far involved in a case found to be unauthorised 'collective investment scheme' by regulator Sebi.
Among others, PACL and its top executives, including Nirmal Singh Bhangoo, are being probed by CBI as well.
Besides, this is is also one of the longest-running cases under the scanner of Sebi, which had first intimated PACL more than 16 years ago way back in February 1998, that it could "neither launch any new schemes nor continue raising funds under its existing schemes."
While the company maintained that it was not running any illicit scheme and was in fact engaged in the business of sale and purchase of land, Sebi issued a notice in November 1999 to PACL, alleging that it "was operating CIS, wherein the funds of the investors were pooled and utilized towards the cost of
land, registration expenses, developmental charges and other incidental expenses."
land, registration expenses, developmental charges and other incidental expenses."
The case later went to courts, while the Supreme Court passed an order in February last year directing Sebi to determine whether the business of PACL fell within the purview of CIS or not, and accordingly take further action in accordance with the law.
Promoters and directors of PACL Ltd have been involved with Pearls Group and PGF Group, among others.
FBZ 26 Aug 2014
So another Ponzi scheme has been busted.
The Securities and Exchange Board of India(Sebi) in an order issued on August 23, 2014, banned Delhi based PACL, from collecting any more money from investors. Sebi also asked PACL to refund the money to investors over the next three months.
A Ponzi scheme is essentially a fraudulent investment scheme in which money brought in by new investors is used to redeem the payment that is due to existing investors. The instrument in which the money collected is invested appears to be a genuine investment opportunity but at the same time it is obscure enough, to prevent any scrutiny by the investors.
In case of PACL, the money collected was supposedly invested in “ agricultural land”. As the Sebi order on the company written by Whole Time Member Prashant Saran points out “According to PACL, it mainly deals in the sale and purchase of agricultural land and development of the land...PACL's business model is not limited to simple trading in barren agricultural land but to provide significant value addition to such low value barren land by developing it into productive agricultural land.”
This land bought by PACL after collecting money from the investors wasn't handed over to them. As the Sebi order points out “PACL has also submitted that only symbolic possession of plots are handed over to the customers as fragmentation of land/ plot into smaller sizes may not be practical or permissible under the applicable revenue laws.”
The Sebi order goes on to inform that till March 31, 2012, Rs 44,736 crore was invested in PACL schemes. The company further informed Sebi that Rs 4,364.78 crore was collected by it between February 26, 2013 and June 15, 2014. Hence, the total amount collected amounts to a whopping Rs 49,100 crore. “This figure could have been even more if PACL would have provided the details of the funds mobilized during the period of April 01, 2012 to February 25, 2013,” the Sebi order points out.
The order goes on to note that “from the available records, it is also noted that since inception till 2012, PACL has allotted land to about 1.22 crore customers.” PACL also informed Sebi that the company has more than 4.63 crore customers to whom land hasn't been allotted. Hence, “the total number of the customer of PACL comes to around 5.85 crore.”
To summarize, the company has close to 5.85 crore customers who have invested around Rs 50,000 crore with it. This is the basic back story of PACL, which has been put together brilliantly by Saran in the Sebi order. So what are the holes in this story?
First and foremost if the company has Rs 50,000 crore invested with it, it must have used that money to buy “agricultural land” worth a similar value. But the Sebi order clearly points out that PACL hasn't done so. “The company has only lands worth Rs 11,706.96 crore [i.e. agricultural lands (Rs 7,322.11 crores) and commercial lands (Rs 4,384.84 crores)] out of which it has not only to satisfy the claim of 4.63 crore customers who have deposited Rs 29,420 crore with it but also to satisfy 1.22 crore customers to whom the land has been allotted but sale deeds have not been executed.”
PACL claims to have more land but hasn't been able to share those details with Sebi “In view of the above, the proposal does not appear to be serious and reasonable,” writes Saran of Sebi. This throws up several questions? If the company has land worth Rs 11,706.96 crore only, where is the remaining money that it has raised from its customers? Why hasn't it been invested?
Further, how does it plan to repay the customers at the end of the tenure of their investment? The customers have been promised a certain rate of return. And that return can be paid only when the land which PACL claims to invest in grows in value. But without the company investing money in land, that isn't going to happen.
Also, at the end of the tenure of his investment, the investor either has the option of taking land or money. Saran of Sebi had asked PACL to provide him a sample of 500 customers. From this sample, 421 customers had taken their money back. The question is how were these customers repaid if the money being raised is not being invested totally?
In fact, in a news report published in The Economic Times in June 2011 PACL director S Bhattacharya had said that “about 80% of customers opt to take the money at the end of the plan term instead of the plot of land they supposedly paid for.” So the remaining 20% must be taking on the land, they had originally invested in, is a fair conclusion that one can draw. But as the Sebi order also points out “Not a single applicant out of the 500 samples selected has registered a sale deed of the land he had proceeded to purchase in the first instance...These facts raise serious doubt the real estate business that PACL claims to carry out.”
In fact, the situation gets even more intriguing when one considers the total number of investors in the scheme. As summarised earlier nearly 5.85 crore investors have invested around Rs 50,000 crore in the scheme. But interestingly Bhattacharya had told The Economic Times in 2011 that the “the company has no more than 50 lakh customers”. So how did the number go from 50 lakh to 5.85 crore in just over three years? Or like Sahara, PACL does not really know how many customers does it really have?
All these lacunae lead Saran to conclude that “the lack of maintenance of proper records/ data is a clear indication that the activities of PACL are in the nature of ponzi scheme.” Hence, like most Ponzi schemes which run for a while, the company over the years has managed to build in the minds of its customers some sort of a façade of a business model, where they make money by buying and selling agricultural land.
But the available data does not lead to that conclusion. What the company seems to have been doing is to take money from new investors and hand it over to the investors whose investment had been maturing. That was all it did. It did not have a business model. It was an out and out Ponzi scheme.
(Vivek Kaul is the author of the Easy Money trilogy. He tweets @kaul_vivek)