Flexing its muscles

On the face of it, the Securities and Exchange Board of India’s decision to slap a penalty of ₹7,269 crore, its highest ever, on PACL Ltd and its directors for mobilising funds under an illegal collective investment scheme (CIS) may appear harsh. This is in addition to an earlier disgorgement order which directed the firm to refund ₹49,100 crore collected from investors. But PACL seems like a fit case for SEBI to levy deterrent penalties, given its long-running crusade against Ponzi operators who target the most vulnerable section of small savers. Over the last couple of years, SEBI has unearthed over 200 money-pooling schemes that hadn’t registered with it, in violation of its CIS regulations. But PACL has been the largest and most blatant repeat offender under this law. The group is estimated to have raised ₹49,100 crore from over 5.85 crore investors, making it larger in scope than the Sahara scam.

PACL’s modus operandi was to collect upfront payments from small investors in the villages of Rajasthan and Uttar Pradesh for a scheme to ‘develop’ barren agricultural land situated in farflung States. Investigations revealed that the scheme had all the hallmarks of a classic Ponzi operation. For one, though they were ostensibly buying land, PACL’s investors had no say either in the location or the development of the plots they bought. Two, plots across different regions were sold for identical prices, on the promise of fabulous returns. Worst of all, PACL did not even own 80 per cent of the land that it sold. As these facts came to light, SEBI issued its first cease-and-desist notice to PACL in 1998. But for the 16 years that followed, PACL adopted various dilatory tactics to stymie the regulator by refusing to comply with directives, failing to appear for hearings and filing counter-claims in the high court, even as it continued to mobilise new money. Along the way, thanks to the somewhat ambiguous definition of a CIS under the original regulations, it even secured a favourable ruling from the Rajasthan High Court. It is only when this ruling was set aside by the Supreme Court last year that SEBI was able to proceed against PACL in full measure. Thankfully, the definition of a CIS has since been tightened, with any money-pooling involving a corpus of ₹100 crore or more, now requiring registration.

In imposing this penalty on PACL, SEBI has used its newly won powers under the Prevention of Fraudulent and Unfair Trade Practices Regulations, which specify a fine of up to three times the illegal profits made by perpetrators of a fraud. Having imposed this mammoth disgorgement order and penalty though, the critical task ahead for SEBI would be to identify the actual small investors in PACL, so that the monies disgorged can be refunded to them. Little progress on this front has been made in the Sahara case. But a sound mechanism for restitution of lost money is a must-have, if victims of financial fraud are to regain their faith in the system.

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