WTM/PS/25/ERO/JULY/2015

BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIA

CORAM: PRASHANT SARAN, WHOLE TIME MEMBER

ORDER

Under sections 11, 11(4), 11A and 11B of the Securities and Exchange Board of India Act,
1992, in the matter of Pinnacle Ventures India Limited (PAN: AAFCP8151K) and its
Directors, viz. Shri Rohit Agrawal (DIN: 03342857, PAN: ATUPA6061G), Shri Ram
Kumar (DIN: 03342871, PAN: BTNPK2863G), Shri Ashoke Ghosh (DIN: 06582965,
PAN: AYCPG3437B), Shri Kousik Sarker (DIN: 03352044, PAN: AYUPS9510K), Shri
Anjan Chatterjee (DIN: 03352045, PAN: AFVPC0501L), Shri Tapas Sarkar (DIN:
03467259, PAN: BAQPS7100A), Shri Sulalit Biswas (DIN: 03352064, PAN:
AESPB9580Q) and Shri Tridib Narayan Basu (DIN: 03352080, PAN: AGNPB7551J).
----------------------------------------------------------------------------------------------------------------

1.1

Pinnacle Ventures India Limited ("PVIL"), having its Registered Office at 77A, Sarat
Bose Road Kolkata700029, West Bengal, was incorporated on January 14, 2011, with
the ROC, Kolkata, West Bengal with CIN No. as U70109WB2011PLC157311.

1.2

Securities and Exchange Board of India ("SEBI") received a complaint dated November
21, 2013 (forwarded to SEBI by the Office of the SubDivisional Magistrate, Sadar,
West Tripura, Government of Tripura vide letter dated December 4, 2013), from an
investor alleging nonpayment of maturity amount in respect of preference shares
issued by PVIL.

1.3

On enquiry by SEBI, it was observed that PVIL had issued Preference Shares to 9,305
persons during the period 2011-12 and 2012-13 ("hereafter referred to as Offer of
preference shares") and collected an amount of Rs. 3.85 crore.

2.1

As the above said Offer of preference shares was found prima facie in violation of
respective provisions of the SEBI Act, 1992 ("SEBI Act") and the Companies Act,
1956, SEBI passed an interim order dated August 22, 2014 (hereinafter referred to as
Page 1 of 16

"interim order") and issued directions mentioned therein against PVIL and its Directors,
viz. Shri Rohit Agrawal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik Sarker,
Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan
Basu (hereinafter referred to as 'noticees')
Prima facie findings/allegations: In the said interim order the following prima facie

2.2

findings/allegation were recorded. PVIL made an offer of preference shares as shown

in the following table:Table
Year

2011 12
2012 13

Type of
Security

Date of
Allotment

No. of
securities

11.06.2011
Preference 09.08.2011
07.01.2012
Shares
30.06.2012

59,985
52,494
1,94,493
79,132

1,181
1,362
5,392
1,370

0.6
0.52
1.94
0.79

3,86,104

9,305

3.85

Total

No. of
persons
Allotted

Total
Amount (Rs.
in crores)

The above offer of preference shares and pursuant allotment was a deemed public issue

2.3

of securities under the first proviso to Section 67(3) of the Companies Act, 1956.
Accordingly, the resultant requirement under Section 60, Section 56(1) and 56(3),
Sections 73(1) (2) (3) of the Companies Act, 1956 were not complied with by the
noticees.
In view of the prima facie findings on the violations, the following directions were

2.4

issued in the said interim order dated August 22, 2014 with immediate effect.
i.

PVIL shall not mobilize funds from investors through the Preference Shares Issue or
through the issuance of equity shares or any other securities, to the public and/or
invite subscription, in any manner whatsoever, either directly or indirectly till further
directions;

ii.

PVIL and its Directors, viz. Shri Rohit Agrawal, Shri Ram Kumar, Shri Ashoke
Ghosh, including its past Directors, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri
Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu are prohibited from
issuing prospectus or any offer document or issue advertisement for soliciting money

Page 2 of 16

from the public for the issue of securities, in any manner whatsoever, either directly
or indirectly, till further orders;
iii. PVIL and the abovementioned past and present Directors, are restrained from
accessing the securities market and further prohibited from buying, selling or
otherwise dealing in the securities market, either directly or indirectly, till further
directions;
iv. PVIL shall provide a full inventory of all its assets and properties;
v.

The abovementioned past and present Directors of PVIL shall provide a full
inventory of all their assets and properties;

vi. PVIL and its present Directors shall not dispose of any of the properties or alienate
or encumber any of the assets owned/acquired by that company through the
Preference Shares Issue, without prior permission from SEBI;
vii. PVIL and its present Directors shall not divert any funds raised from public at large
through the Preference Shares Issue, which are kept in bank account(s) and/or in the
custody of PVIL;
viii. PVIL and its present Directors shall, within 21 days from the date of receipt of this
Order, provide SEBI with all relevant and necessary information, as sought vide
SEBI letters dated May 2, 2014 and May 14, 2014.
3.1

Vide the said interim order PVIL and its abovementioned Directors were given the
opportunity to file their reply, within 21 days from the date of receipt of the said interim
Order. The interim order further stated the concerned persons may also indicate
whether they desire to avail themselves an opportunity of personal hearing on a date
and time to be fixed on a specific request made in that regard.

3.2

The copy of the said interim order was sent to the above mentioned entities by letter
dated August 25, 2014. The letters addressed to PVIL (at its registered office
addresses), Shri Rohit Agrawal, Shri Anjan Chatterjee, Shri Ram Kumar and Shri
Ashok Ghosh were returned as undelivered to SEBI with the remark 'Left without
address'. The letter sent to Mr. Koushik Sarkar was also returned undelivered.
However, Mr. Sulalit Biswas, Mr. Kausik Sarkar, Tridib Narayan Basu and Mr. Tapas
Sarkar have replied through their advocate vide letter dated September 10, 2014 stating
they have received the order passed by SEBI.
Page 3 of 16

4.1

Subsequently, vide notification dated April 14, 2015, published in newspaper Ananda
Bazar Patrika, PVIL and the directors were notified that they will be given the final
opportunity of being heard on April 22, 2015 at the time and the venue mentioned
therein.

4.2

Hearing and submissions: Neither PVIL nor the directors of PVIL availed the
opportunity of hearing held on April 22, 2015.

4.3

Mr. Sulalit Biswas and Mr. Kausik Sarkar, Tridib Narayan Basu and Mr. Tapas Sarkar
filed their separate replies dated September 10, 2014. Mr. Sulalit Biswas and Mr.
Kausik Sarkar, Tridib Narayan Basu filed their common reply through their advocate
dated April 17, 2015. Their submissions in brief are as follows:a) As on April 13, 2012, the authorized preference share capital of PVIL was Rs
9,90,00,000 represented by 9,90,000 preference shares at Rs.100 each. Money
was collected and receipts were issued to the investors.
b) The impugned issue of preference shares was not a public issue. Therefore, the
requirements of the public issue need not be complied with.
c) They had resigned as the directors with effect from March 23, 2013 and filed
Form 32 to that effect. They made a public notice of their resignation in Bengali
daily "Ei Samay" and English daily "The Times of India" on April 14, 2014. Mr.
Neelanjan Bhattcharjee, Mr. Sarvesh Agrahari, Mr. Sunny Mukherjee, Mr.
Biswajit Sarkar, Mr. PradyutMitra were appointed as additional directors on
March 20, 2013 and Ms. Chandra Banerjee, Mr. Rajib Bandyopadhyay, Mr.
Kaushik Banerjee, Mr. Surojit Manna and Mr. Pradip Nag were appointed as
additional directors on March 23, 2013.
d) Repayment was made to investors in view of the redemption of maximum
number of preference shares issued at the period of their directorship.
e) Some of the creditors have filed winding up application against PVIL, before
the Hon'ble High Court at Calcutta being C.P. No.144 of 2014 which was
disposed of, by its order dated March 19, 2015 directing the company to be
wound with immediate effect and official liquidator has been appointed with a
direction to take possession forthwith of all the assets and properties of the
PVIL. Under section 446 of the Companies Act,1956, no proceedings should be
initiated, and/or to be continued without the leave of the court which passed the
Page 4 of 16

winding up order. Others did not make any representation.

4.4

Mr. Ashoke Ghosh vide his undated letter received by SEBI on May 6, 2015 submitted
that he is only an additional director and is not involved in day-to-day activities.

5.1

I have considered the allegations, and materials on record including complaint dated
November 21, 2013 and documents downloaded from MCA 21 Portal. On perusal of
the same the following issues arise for consideration. Each question is dealt with
separately under different headings.
1. Whether the company came out with the Offer of Preference Shares
2. If so, whether the said issues are in violation of Section 60, Section 56(1) and
56(3), Sections 73(1) (2) (3), the Companies Act,1956
3. If the findings on question No.2 are found in the affirmative, who are liable for
the violation committed.

6.1

Whether the company came out with the Offer of Preference Shares?: Mr. Sulalit
Biswas, Mr. Kausik Sarkar, Mr. Tapas Sarkar and Tridib Narayan Basu filed their
replies dated September 10, 2014 but did not dispute the said issuance of preference
shares. The company or other directors however, have not filed their replies disputing
the said issuance.

6.2

Instead the noticees, Shri Sulalit Biswas, Shri Tridib Narayan Basu and Shri Kousik
Sarker vide their written representation through their Advocate Mr. Shakti Kumar
Chatterjee, dated April 17, 2015 submitted that, as on April 13, 2012, the authorised
preference share capital of PVIL was Rs, 9,90,00,000 represented by 9,90,000
preference shares at Rs.100 each. The collection of money against money receipts was
also admitted by these noticees.

6.3

I have also perused the documents/ information obtained from the 'MCA 21 Portal' The
perusal of Form 2 filed in respect of allotment dated April 13, 2012, shows that the
company has as on that date was authorized to issue 9,90,000 preference shares at
Rs.100 each representing Rs. 9,90,00,000. On perusal of Form 2 filed for the allotments
dated June 11, 2011, August 9, 2011, January 7, 2012 and June 30, 2012, it is seen that
that the Company had issued preference shares for an amount of Rs. 0.6 crore, Rs. 0.52
crore, Rs.1.94 crore, Rs. 0.79 crore respectively.

7.1

If so, whether the said issues are in violation of Section 60, Section 56(1) and 56(3),
Sections 73(1) (2) (3), the Companies Act,1956: The provisions alleged to have been
Page 5 of 16

violated by the noticees and mentioned in this issue are applicable to the offer made to
the public. Therefore the primary question arises for consideration is whether the issue
of preference shares is public issue. At this juncture, reference may be made to section
67(1) & (3) of the Companies Act, 1956:
"67. (1) Any reference in this Act or in the articles of a company to offering
shares or debentures to the public shall, subject to any provision to the contrary
contained in this Act and subject also to the provisions of sub-sections (3) and
(4), be construed as including a reference to offering them to any section of the
public, whether selected as members or debenture holders of the company
concerned or as clients of the person issuing the prospectus or in any other
manner.
(2)any reference in this Act or in the articles of a company to invitations to the
public to subscribe for shares or debentures shall, subject as aforesaid, be
construed as including a reference to invitations to subscribe for them extended
to any section of the public, whether selected as members or debenture holders
of the company concerned or as clients of the person issuing the prospectus or
in any other manner.
(3) No offer or invitation shall be treated as made to the public by virtue of subsection (1) or sub- section (2), as the case may be, if the offer or invitation can
properly be regarded, in all the circumstances(a) as not being calculated to result, directly or indirectly, in the shares or
debentures becoming available for subscription or purchase by persons other
than those receiving the offer or invitation; or
(b) otherwise as being a domestic concern of the persons making and receiving
the offer or invitation
Provided that nothing contained in this sub-section shall apply in a case where
the offer or invitation to subscribe for shares or debentures is made to fifty
persons or more:
Provided further that nothing contained in the first proviso shall apply to nonbanking financial companies or public financial institutions specified in section
4A of the Companies Act, 1956 (1 of 1956).
7.2

The following observations of the Hon'ble Supreme Court of India in Sahara India
Real Estate Corporation Limited & ORs. vs. SEBI (Civil Appeal no. 9813 and 9833
Page 6 of 16

of 2011)(hereinafter referred to as the 'Sahara Case'), while examining the scope of

Section 67 of the Companies Act, 1956, are worth consideration:"84. Section 67(1) deals with the offer of shares and debentures to the public
and Section 67(2) deals with invitation to the public to subscribe for shares
and debentures and how those expressions are to be

understood, when

reference is made to the Act or in the articles of a company. The emphasis in

Section 67(1) and (2) is on the section of the public. Section 67(3) states
that no offer or invitation shall be treated as made to the public, by virtue of
subsections (1) and (2), that is to any section of the public, if the offer or
invitation is not being calculated to result, directly or indirectly, in the shares
or debentures becoming available for subscription or purchase by persons
other than those receiving the offer or invitation or otherwise as being a
domestic concern of the persons making and receiving the offer or
invitations. Section 67(3) is, therefore, an exception to Sections 67(1) and
(2). If the circumstances mentioned in clauses (1) and (b) of Section 67(3) are
satisfied, then the offer/invitation would not be treated as being made to the
public.
85.

The first proviso to Section 67(3) was inserted by the Companies

(Amendment) Act, 2000 w.e.f. 13.12.2000, which clearly indicates, nothing

contained in Sub-section (3) of Section 67 shall apply in a case where the offer
or invitation to subscribe for shares or debentures is made to fifty persons or
more.

Resultantly, after 13.12.2000, any offer of securities by a public

company to fifty persons or more will be treated as a public issue under the
Companies Act, even if it is of domestic concern or it is proved that the shares
or debentures are not available for subscription or purchase by persons other
than those receiving the offer or invitation....."
7.3

Section 67(3) provides for situations when an offer is not considered as offer to
public. As per the said sub section, if the offer is one which is not calculated to
result, directly or indirectly, in the shares or debentures becoming available for
subscription or purchase by persons other than those receiving the offer or invitation
{(section 67(3)(a)}, or, if the offer is the domestic concern of the persons making
and receiving the offer {(section 67(3)(b)}, the same are not considered as public

Page 7 of 16

offer. Under such circumstances, they are considered as private placement of shares
and debentures. It is noted that as per the first proviso to Section 67(3) Companies
Act, 1956, the public offer and listing requirements contained in that Act would
become automatically applicable to a company making the offer to fifty or more
persons. However, the second proviso to Section 67(3) exempts NBFCs and Public
Financial Institutions from the applicability of the first proviso.
7.4

In the instant case, as shown in the table, since the offer of preference shares and
allotment was made by PVIL, to 1181 persons on June 11, 2011, 1362 person on
August 09, 2011, 5392 persons on January 07, 2012 in the financial year 2011-12
and the offer of preference shares and allotment was made to 1370 persons on June
30, 2012 in the financial year 2012-13, the offer of preference shares falls within
the first proviso of section 67(3) of Companies Act,1956 thereby such issues are
deemed to be public issues and was mandated to comply with the 'public issue'
norms as prescribed under the Companies Act, 1956.

7.5

In terms of section 56(1) of the Companies Act, 1956, every prospectus issued by
or on behalf of a company, shall state the matters specified in Part I and set out the
reports specified in Part II of Schedule II of that Act. Further, as per section 56(3)
of the Companies Act, 1956, no one shall issue any form of application for shares
in a company, unless the form is accompanied by abridged prospectus, containing
disclosures as specified. Section 2(36) of the Companies Act read with section 60
thereof, mandates a company to register its 'prospectus' with the Registrar of
companies before making a public offer/ issuing the 'prospectus'. As per the
aforesaid Section 2(36), prospectus means any document described or issued as
a prospectus and includes any notice, circular, advertisement or other document
inviting deposits from the public or inviting offers from the public for the
subscription or purchase of any shares in, or debentures of, a body corporate.

7.6

The allegation of non-compliance of the above provisions were not denied by the
company or directors other than the replying noticees. In view of the finding that
the issuance of preference shares as discussed above is deemed public issue, the
replying noticees' argument that the issue is private placement and therefore, the
said provisions do not apply, does not hold good. Neither the company nor the
directors produced any record to show that PVIL has issued Prospectus containing
the disclosures mentioned in section 56(1) of the Companies Act, 1956, or filed a
Page 8 of 16

Prospectus with ROC or issued application forms accompanying the abridged

prospectus. Therefore, I find that, PVIL and the persons responsible for the failure
to issue prospectus, has not complied with Section 56(1), 56(3) and 60 of the
Companies Act, 1956.
7.7

Further, by issuing the above discussed preference shares, PVIL had to

compulsorily list such securities in compliance with section 73 of the Companies
Act, 1956. As per section 73(1) and (2) of the Companies Act, 1956, a company is
required to make an application to one or more recognized stock exchanges for
permission for the shares or debentures to be offered to be dealt with in the stock
exchange and if permission has not been applied for or not granted, the company is
required to forthwith repay with interest all moneys received from the applicants.

7.8

Though Mr. Sulalit Biswas and Mr. Kausik Sarkar Mr. Tapas Sarkar, Tridib
Narayan Basu vide their separate replies dated September 10, 2014, submitted that
repayment was made to investors in view of the redemption of maximum number
of preference shares issued at the period of their directorship, neither did they give
any details of payment nor did they provide any proof towards repayment.
Therefore, the same cannot be accepted.

7.9

I further find that no records have been submitted to indicate that it has made an
application seeking listing permission from stock exchange nor refunded the
amounts on account of such failure.

Thus, PVIL has contravened the said

provisions. The noticees have not provided any records to show that the amount
collected by FIIL are kept in a separate bank account. Therefore, I find that PVIL
has also not complied with the provisions of section 73(3) as it has not kept the
amounts received from investors in a separate bank account and failed to repay the
same in accordance with section 73(2) as observed above.
7.10

I note that the jurisdiction of SEBI over various provisions of the Companies Act,
1956 including the above mentioned, in the case of public companies, whether listed
or unlisted, when they issue and transfer securities, flows from the provisions of
Section 55A of the Companies Act, 1956. While examining the scope of Section
55A of the Companies Act, 1956, the Hon'ble Supreme Court of India in Sahara
Case, had observed that:
"We, therefore, hold that, so far as the provisions enumerated in the opening
Page 9 of 16

portion of Section 55A of the Companies Act, so far as they relate to issue and
transfer of securities and non-payment of dividend is concerned, SEBI has the
power to administer in the case of listed public companies and in the case of
those public companies which intend to get their securities listed on a
recognized stock exchange in India."
" SEBI can exercise its jurisdiction under Sections 11(1), 11(4), 11A(1)(b) and
11B of SEBI Act and Regulation 107 of ICDR 2009 over public companies who
have issued shares or debentures to fifty or more, but not complied with the
provisions of Section 73(1) by not listing its securities on a recognized stock
exchange"
7.11

In this regard, it is pertinent to note that by virtue of Section 55A of the Companies
Act, SEBI has to administer Section 67 of that Act, so far as it relates to issue and
transfer of securities, in the case of companies who intend to get their securities
listed.

7.12

In view of the forgoing findings, I am of the view that PVIL is engaged in fund
mobilizing activity from the public, through the offer and issuance of preference
shares and has contravened the provisions of sections 56, 60 and 73 of the
Companies Act, 1956.

8.1

If the findings on question No.2 are found in the affirmative, who are liable for the
violation committed?: Section 56(1) and 56(3) read with section 56(4) imposes the
liability for the compliance of the said provisions, on the company, every director,
and other persons responsible for the issuance of the prospectus, The liability for
non-compliance of Section 60 of the Companies Act, 1956 is on the company, and
every person who is a party to the non-compliance of issuing the prospectus as per
the said section.

8.2

As far as the liability for non-compliance of section 73 of Companies Act, 1956 is

concerned, as stipulated in section 73(2) of the said Act, the company and every
director of the company who is an officer in default shall, from the eighth day when
the company becomes liable to repay, be jointly and severally liable to repay that
money with interest at such rate, not less than four per cent and not more than fifteen
per cent if the money is not repaid forthwith.

8.3

Mr. Ashoke Ghosh vide his undated letter received by SEBI on May 6, 2015
Page 10 of 16

submitted that he is only an additional director and is not involved in day-to-day

activities.
8.4

Mr. Sulalit Biswas, Mr. Kausik Sarkar and Tridib Narayan Basu, Tapas Sarkar vide
their replies dated September 10, 2014 had submitted that they had resigned as the
directors with effect from March 23, 2013 and submitted that they had filed Form
32 to that effect. It was further submitted by them that they have made a public
notice of their resignation in Bengali daily "Ei Samay" and English daily "The Times
of India" on April 14, 2014. It was also submitted vide the said letter that Mr.
Neelanjan Bhattcharjee, Mr. Sarvesh Agrahari, Mr. Sunny Mukherjee, Mr. Biswajit
Sarkar, Mr. Pradyut Mitra were appointed as additional directors on March 20, 2013
and Ms. Chandra Banerjee, Mr. Rajib Bandyopadhyay, Mr. Kaushik Banerjee, Mr.
Surojit Manna and Mr. Pradip Nag were appointed as additional directors on March
23, 2013.

8.5

On perusal of the extract of "Register of directors, managing directors, manager and

secretary" sent to SEBI by Ministry of Corporate Affairs, I find that Shri Rohit
Agrawal has resigned as director on January 19, 2015 after joining the company on
March 20, 2013, Shri Ashoke Ghosh has resigned as director on February 28, 2015
after joining on July 23, 2013, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri
Sulalit Biswas and Shri Tridib Narayan Basu have resigned as directors on March
23, 2013 after joining on January 14, 2011. Contrary to the contention of Shri Tapas
Sarkar, on perusal of the Form 32 and the extract of "Register of directors, managing
directors, manager and secretary" sent to SEBI by Ministry of Corporate Affairs, I
find that Shri Tapas Sarkar resigned as director on July 6, 2013 after joining on
March 07,2012.

8.6

From the above details, I find that Shri Kousik Sarker, Shri Anjan Chatterjee, Shri
Sulalit Biswas, and Shri Tridib Narayan Basu were directors at the time of the
impugned issues. Therefore, these directors are officers in default.

8.7

The liability of the company to repay under section 73(2) is continuing and such
liability continues till all the repayments are made. Therefore, the directors who
joined subsequent to the impugned public issuance are also officers in default in not
making the refund, if the company does not repay the money collected, as mandated
in section 73(2) of the Companies Act, 1956.

Page 11 of 16

8.8

I note that the directors Shri Rohit Agrawal, Shri Ram Kumar and Shri Ashoke
Ghosh and Tapas Sarkar had joined as directors subsequent to the impugned issues,
on March 20, 2013, July 5, 2013, July 23, 2013 and March 07, 2012 respectively
and the said directors who had joined as directors subsequently have not exercised
necessary diligence while taking charge of directorship in the Company. The very
inaction by these directors against the previous management (for violating the
public issue norms as stipulated under the Companies Act, 1956 while making the
offer and issuing the preference shares), even after passing of the interim order,
leads one to conclude on a possible collusion at their end with the Company and its
previous management. Further, these directors have also not taken any steps to
remedy the violations committed. Therefore, I hold that Shri Rohit Agrawal, Shri
Ram Kumar, Shri Ashoke Ghosh and Shri Tapas Sarkar are also 'officers in default'
and hence liable for the contraventions found against the Company and also for the
consequences of such violations.

8.9

In view of the above provisions of law, Shri Rohit Agrawal, Shri Ram Kumar, Shri
Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri
Sulalit Biswas and Shri Tridib Narayan Basu, being the directors are responsible
for the noncompliance of the above provisions.

8.10

As far as the persons who are stated to be new additional directors, SEBI shall
examine the same, and similar necessary action may be taken by SEBI in
accordance with law.

8.11

The noticees, Shri Sulalit Biswas, Shri Tridib Narayan Basu and Shri Kousik Sarker
through their Advocate, Mr. Shakti Kumar Chatterjee made a written representation
vide letter dated April 17, 2015 wherein it was submitted that some of the creditors
have filed winding up application against PVIL, before the Hon'ble High Court at
Calcutta being C.P. No.144 of 2014 which was disposed of, by its order dated
March 19, 2015 directing the company to be wound up with immediate effect and
official liquidator has been appointed with a direction to take possession forthwith
of all the assets and properties of the PVIL. It was further submitted that under
section 446 of the Companies Act, 1956, no proceedings should be initiated, and/or
to be continued without the leave of the court which passed the winding up order.
Accordingly, vide letter dated April 17, 2015, it was stated that SEBI cannot take
any further steps against PVIL or its directors without leave from the court.
Page 12 of 16

8.12

I note that the Company law court has ordered for the winding up of the
Company and also that an Official Liquidator has been appointed. However,
a separate order is required to be passed wherein both the company and the
directors are made liable for repayment under section 73(2) of the Companies
Act, 1956. In so far as the liability of the Company is concerned, this order
needs to be harmoniously read with the orders in C.P. No.144 of 2014 passed
by Honble High Court at Calcutta in the instant matter.

9.1

In view of the foregoing, the natural consequence of not adhering to the norms
governing the issue of securities to the public and making repayments as directed
under section 73(2) of the Companies Act, 1956, is to direct the Company, its
directors Shri Rohit Agrawal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik
Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri
Tridib Narayan Basu, to refund the monies collected, with interest to such investors.
In view of the violations committed by the Company and its directors, to safeguard
the interest of the investors who had subscribed to such preference shares issued by
the Company and to further ensure orderly development of securities market, it also
becomes necessary for SEBI to issue appropriate directions against the Company
and the other noticees.

9.2

Therefore, I in exercise of the powers conferred under section 19 of the Securities

and Exchange Board of India Act, 1992 read with sections 11(1), 11(4), 11A and
11B thereof, hereby issue the following directions :
a.

Pinnacle Ventures India Limited shall forthwith refund the money collected
by the Company through the issuance of preference shares, including the
money collected from investors, till date, pending allotment of securities, if
any, with an interest of 15% per annum compounded at half yearly intervals,
from the date when the repayments became due (in terms of Section 73(2) of
the Companies Act, 1956) to the investors till the date of actual payment.

b.

The directors of the Company namely, Shri Rohit Agrawal, Shri Ram Kumar,
Shri Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas
Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, shall forthwith
refund the money collected by the Company through the issuance of
preference shares, including the money collected from investors, till date,

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pending allotment of securities, if any, with an interest of 15% per annum

compounded at half yearly intervals, from the date when the repayments
became due (in terms of Section 73(2) of the Companies Act, 1956) to the
investors till the date of actual payment.
c.

The repayments and interest payments to investors shall be effected only

through Bank Demand Draft or Pay Order.

d.

Pinnacle Ventures India Limited, Shri Rohit Agrawal, Shri Ram Kumar, Shri
Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar,
Shri Sulalit Biswas and Shri Tridib Narayan Basu, shall issue public notice,
in all editions of two National Dailies (one English and one Hindi) and in one
local daily (in Bengali) with wide circulation, detailing the modalities for
refund, including details of contact persons including names, addresses and
contact details, within fifteen days from the date of this Order.

e.

After completing the aforesaid repayments, Pinnacle Ventures India Limited,

Shri Rohit Agrawal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik
Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri
Tridib Narayan Basu, shall file a report of such completion of repayment with
SEBI, within a period of three months from the date of this order, certified
by two independent peer reviewed Chartered Accountants who are in the panel
of any public authority or public institution. For the purpose of this Order, a
peer reviewed Chartered Accountant shall mean a Chartered Accountant, who
has been categorized so by the Institute of Chartered Accountants of India
("ICAI").

f.

Shri Rohit Agrawal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik
Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri
Tridib Narayan Basu, are directed to provide a full inventory of all their assets
and properties and details of all their bank accounts, demat accounts and
holdings of shares/securities, if held in physical form.

g.

In case of failure of Pinnacle Ventures India Limited, Shri Rohit Agrawal,

Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan
Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan
Basu, to comply with the aforesaid directions, SEBI, on the expiry of the three
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months period from the date of this order,i. shall recover such amounts in accordance with section 28A of the SEBI
Act including such other provisions contained in securities laws.
ii. may

initiate

appropriate

action

against

the

Company,

its

promoters/directors and the persons/officers who are in default,

including adjudication proceedings against them, in accordance with
law.
iii. would make a reference to the State Government/ Local Police to
register a civil/ criminal case against the Company, its promoters,
directors and its managers/ persons in-charge of the business and its
schemes, for offences of fraud, cheating, criminal breach of trust and
misappropriation of public funds.
h.

Pinnacle Ventures India Limited and its directors Shri Rohit Agrawal, Shri
Ram Kumar, Shri Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee,
Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, are
directed not to, directly or indirectly, access the securities market, by issuing
prospectus, offer document or advertisement soliciting money from the public
and are further restrained and prohibited from buying, selling or otherwise
dealing in the securities market, directly or indirectly in whatsoever manner,
from the date of this Order, till the expiry of 4 years from the date of
completion of refunds to investors as directed above. However, the Pinnacle
Ventures India Limited and the above said directors may sell the
securities for the purpose of above refund. The above said directors are also
restrained from associating themselves with any listed public company and
any public company which intends to raise money from the public, or any
intermediary registered with SEBI from the date of this Order till the expiry
of 4 years from the date of completion of refunds to investors.

i.
10.1

The above directions shall come into force with immediate effect.

This Order is without prejudice to any action, including adjudication and

prosecution proceedings that might be taken by SEBI in respect of the above
violations committed by Pinnacle Ventures India Limited, its promoters, directors
and other key persons.
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10.2

Copy of this order shall be forwarded to the Official Liquidator, at Calcutta, inter
alia, for the purpose of enabling him to take into account in the winding up
proceedings, the refund, if any, to be made by the directors to the preference
shareholders pursuant to this order.

10.3

Copy of this Order shall be forwarded to the recognized stock exchanges and
depositories for information and necessary action.

10.4

A copy of this Order shall also be forwarded to the Ministry of Corporate

Affairs/concerned Registrar of Companies, for their information and necessary
action with respect to the directions/restraint imposed above against the Company
and the individuals.

Date :July 24, 2015

Place: Mumbai

PRASHANT SARAN
WHOLE TIME MEMBER
SECURITIES AND EXCHANGE BOARD OF INDIA

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