Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).11311 OF 2013
ADJUDICATING OFFICER,
SECURITIES AND EXCHANGE BOARD
OF INDIA APPELLANT(S)
VERSUS
BHAVESH PABARI RESPONDENT(S)
WITH
C.A. NO. 1824/2014, C.A. NO. 9798/2014, C.A. NO.
9797/2014, C.A. NO. 9799/2014, C.A. NO. 14728/2015,
C.A. NO. 14730/2015, C.A. NO.14729/2015, C.A. NO.
33/2017, C.A. NO. 1009/2017, C.A. NO. 2641/2017, C.A.
NO. 6160/2018, C.A. NO. 9563/2018
JUDGMENT
SANJIV KHANNA, J.
1. Delay condoned.
2. Two primary questions, in a way interconnected,
have been referred by the Referral judgment and order
Signature Not Verified
Digitally signed by
DEEPAK GUGLANI
Date: 2019.02.28
16:54:27 IST
Reason:
th
dated 14 March, 2016 passed in Siddharth Chaturvedi
2
1
Vs. Securities and Exchange Board of India . The
correctness of the view expressed on the said two
questions by a numerical smaller bench of this Court in
Securities and Exchange Board of India through its
2
Chairman vs. Roofit Industries Limited would
coincidentally arise. The questions referred can be
enumerated and summarized as follows:
(i) Whether the conditions stipulated in clauses (a), (b)
and (c) of Section 15J of the Securities and Exchange
Board of India Act, 1992 (hereinafter referred to as
“SEBI Act”) are exhaustive to govern the discretion in
the Adjudicating Officer to decide on the quantum of
penalty or the said conditions are merely illustrative?
(ii) Whether the power and discretion vested by Section
15J of the SEBI Act to decide on the quantum of
penalty, regardless of the manner in which the first
question is answered, stands eclipsed by the penalty
provisions contained in Section 15A to Section 15HA
of the SEBI Act?
1 (2016) 12 SCC 119
2 (2016) 12 SCC 125
3
3. The SEBI Act, as the object of its enactment would
indicate, was enacted “
to provide for the establishment
of a Board to protect the interests of investors in
securities and to promote the development of, and to
regulate, the securities market and for matters
connected therewith or incidental thereto .”
4. For the purposes of the present reference, we may
proceed to consider the provisions contained in Chapter
VIA of the SEBI Act. Sections 15A to 15HA are the
penalty provisions whereas Section 15I deals with the
power of adjudication and Section 15J enumerates the
“ factors to be taken into account by the Adjudicating
” while adjudging the quantum of penalty.
Officer
5. Section 15A, illustratively, as existing prior to its
amendment by Act No.59 of 2002, as amended by Act
No.59 of 2002 and thereafter as amended by Act No.27 of
2014 and Section 15J are required to be specifically
noticed at this stage.
Section 15A as existing prior to Amendment Act
No.59 of 2002
4
“15A. Penalty for failure to furnish
information, return, etc . If any person, who
is required under this Act or any rules or
regulations made thereunder,
(a) to furnish any document, return or
report to the Board, fails to furnish the same,
he shall be liable to a penalty not exceeding
one lakh and fifty thousand rupees for each
such failure;
(b) to file any return or furnish any
information, books or other documents within
the time specified therefor in the regulations,
fails to file return or furnish the same within
the time specified therefor in the regulations,
he shall be liable to a penalty not exceeding
five thousand rupees for every day, during
which such failure continues;
(c) to maintain books of account or
records, fails to maintain the same, he shall be
liable to a penalty not exceeding ten thousand
rupees for every day during which the failure
continues.”
Section 15A as amended by Act No.59 of 2002
“15A. Penalty for failure to furnish
information, return, etc . If any person, who
is required under this Act or any rules or
regulations made thereunder,
(a) to furnish any document, return or
report to the Board, fails to furnish the same,
he shall be liable to a penalty of one lakh
rupees for each day during which such failure
continues or one crore rupees, whichever is
less;
5
(b) to file any return or furnish any
information, books or other documents within
the time specified therefor in the regulations,
fails to file return or furnish the same within
the time specified therefor in the regulations,
he shall be liable to a penalty of one lakh
rupees for each day during which such failure
continues or one crore rupees, whichever is
less;
(c) to maintain books of account or
records, fails to maintain the same, he shall be
liable to a penalty of one lakh rupees for each
day during which such failure continues or one
crore rupees, whichever is less.”
Section 15A as amended by Amendment Act
No.27 of 2014
“15A.
Penalty for failure to furnish
If any person, who
information, return, etc.
is required under this Act or any rules or
regulations made thereunder,
(a) to furnish any document, return or
report to the Board fails to furnish the same,
he shall be liable to a penalty which shall not
be less than one lakh rupees but which may
extend to one lakh rupees for each day during
which such failure continues subject to a
maximum of one crore rupees;
(b) to file any return or furnish any
information, books or other documents within
the time specified therefor in the regulations,
fails to file return or furnish the same within
the time specified therefor in the regulations,
he shall be liable to a penalty which shall not
be less than one lakh rupees but which may
extend to one lakh rupees for each day during
6
which such failure continues subject to a
maximum of one crore rupees;
(c) to maintain books of account or
records, fails to maintain the same, he shall be
liable to a penalty which shall not be less than
one lakh rupees but which may extend to one
lakh rupees for each day during which such
failure continues subject to a maximum of one
crore rupees.
Section 15 J
“15J. Factors to be taken into account by
the adjudicating officer. While adjudging the
quantum of penalty under section 15I, the
adjudicating officer shall have due regard to
the following factors, namely:
(a) the amount of disproportionate gain or
unfair advantage, wherever quantifiable, made
as a result of the default;
(b) the amount of loss caused to an
investor or group of investors as a result of the
default;
(c) the repetitive nature of the default.
Explanation for the removal of doubts, it is
clarified that the power of an adjudicating
officer to adjudge the quantum of penalty
under sections 15A to 15E, clauses (b) and (c)
of section 15F, 15G, 15H and 15HA shall be
and shall always be deemed to have been
exercised under the provisions of this section.”
[Explanation added by Act No. 7 of 2017]
7
6. Insofar as the second question is concerned, if the
penalty provisions are to be understood as not admitting of
any exception or discretion and the penalty as prescribed in
Section 15A to Section 15HA of the SEBI Act is to be
mandatorily imposed in case of default/failure, Section 15J
of the SEBI Act would stand obliterated and eclipsed.
Hence, the question referred. Sections 15A(a) to 15HA
have to be read along with Section 15J in a manner to avoid
any inconsistency or repugnancy. We must avoid conflict
and headonclash and construe the said provisions
harmoniously. Provision of one section cannot be used to
nullify and obtrude another unless it is impossible to
reconcile the two provisions. The explanation to Section 15
J of the SEBI Act added by Act No.7 of 2017, quoted above,
has clarified and vested in the Adjudicating Officer a
discretion under Section 15J on the quantum of penalty to
be imposed while adjudicating defaults under Sections 15A
to 15HA. Explanation to Section 15J was
introduced/added in 2017 for the removal of doubts created
as a result of pronouncement in M/s. Roofit Industries
8
Ltd. case (supra) . We are in agreement with the reasoning
th
given in reference order dated 14 March, 2016 that
M/s
Roofit Industries Ltd. had erroneously and wrongly held
that Section 15J would not be applicable after Section 15
th th
A(a) was amended with effect from 29 October, 2002 till 7
September, 2014 when Section 15A(a) of the SEBI Act was
again amended. It is beyond any doubt that the second
referred question stands fully answered by clarification
through the medium of enacting the Explanation to Section
15J vide Act No.7 to 2017, which also states that the
Adjudicating Officer shall always have deemed to have
exercised and applied the provision. We, therefore, deem it
appropriate to hold that the provisions of Section 15J were
never eclipsed and had continued to apply in terms thereof
to the defaults under Section 15A(a) of the SEBI Act.
7. Reference Order in Siddharth Chaturvedi & Ors.
on the said aspect has observed that Section 15A(a)
(supra)
could apply even to technical defaults of small amounts and,
therefore, prescription of minimum mandatory penalty of
Rs.1 lakh per day subject to maximum of Rs.1 crore, would
9
make the Section completely disproportionate and arbitrary
so as to invade and violate fundamental rights. Insertion of
the Explanation would reflect that the legislative intent, in
spite of the use of the expression “whichever is less” in
th
Section 15A(a) as it existed during the period 29 October
th
2002 till 7 September 2014, was not to curtail the
discretion of the Adjudicating Officer by prescribing a
minimum mandatory penalty of not less than Rs. 1 lakh per
day till compliance was made, notwithstanding the fact that
the default was technical, no loss was caused to the
investor(s) and no disproportionate gain or unfair advantage
was made. The legislative intent is also clear as Section
15A(a) was amended by the Amendment Act No.27 of 2014
to state that the penalty could extend to Rs. 1 lakh for each
day during which the failure continues subject to a
maximum penalty of Rs. 1 crore. This amendment in 2014
was not retrospective and therefore, clarificatory and
removal of doubt Explanation to Section 15J was added by
the Act No. 7 of 2017. Normally the expression “whichever is
less” would connote absence of discretion by prescribing the
minimum mandatory penalty, but in the context of Section
10
th th
15A(a) as it was between 29 October,2002 till 7
September, 2014, read along with Explanation to Section
15J added by Act No.7 of 2017, we would hold the
legislative intent was not to prescribe minimum mandatory
penalty of Rs.1 lakh per day during which the default and
failure had continued. We would prefer read and interpret
th th
Section 15A(a) as it was between 25 October, 2002 and 7
September, 2014 in line with the Amendment Act 27 of 2014
as giving discretion to the Adjudicating Officer to impose
minimum penalty of Rs.1 lakh subject to maximum penalty
of Rs.1 crore, keeping in view the period of default as well as
aggravating and mitigating circumstances including those
specified in Section 15J of the SEBI Act.
8. This will require us to consider the first question
referred. Having dealt with the submissions advanced by
the rival parties, (both parties have actually canvassed for a
wider and more expansive interpretation of Section 15J), we
are inclined to take the view that the provisions of clauses
(a), (b) and (c) of Section 15J are illustrative in nature and
have to be taken into account whenever such circumstances
exist. But this is not to say that there can be no other
11
circumstance(s) beyond those enumerated in clauses (a), (b)
and (c) of Section 15J that the Adjudicating Officer is
precluded in law from considering while deciding on the
quantum of penalty to be imposed.
9. A narrow view would be in direct conflict with the
provisions of Section 15I(2) of the SEBI Act which vests
jurisdiction in the Adjudicating Officer, who is empowered
on completion of the inquiry to impose “ such penalty as he
thinks fit in accordance with the provisions of any of
those sections .”
10. The above apart, the circumstances enumerated in
clauses (a), (b) and (c) of Section 15J of the SEBI Act may
have no relevance and may never arise in case of
contraventions contemplated by certain provisions of the
SEBI Act, for instance Section 15A, 15B or 15C of the
SEBI Act. Failure to furnish information, return, etc.;
failure to enter into agreement with clients; and failure to
redress investors’ grievances cannot give rise to the
circumstances set out in clauses (a), (b) and (c) of Section
15J.
12
11. Therefore, to understand the conditions stipulated in
clauses (a), (b) and (c) of Section 15J to be exhaustive and
admitting of no exception or vesting any discretion in the
Adjudicating Officer would be virtually to admit/concede
that in adjudications involving penalties under Sections 15
A, 15B and 15C, Section 15J will have no application.
Such a result could not have been intended by the
legislature. We, therefore, hold and take the view that
conditions stipulated in clauses (a), (b) and (c) of Section 15
J are not exhaustive and in the given facts of a case, there
can be circumstances beyond those enumerated by clauses
(a), (b) and (c) of Section 15J which can be taken note of by
the Adjudicating Officer while determining the quantum of
penalty.
12. At this stage, we must also deal with and reject the
argument raised by some of the private appellants that the
conditions stipulated in clauses (a) to (c) of Section 15J are
mandatory conditions which must be read into Sections 15
A to 15HA in the sense that unless the conditions specified
in clauses (a) to (c) are satisfied, penalty cannot be imposed
13
by the Adjudicating Officer under the substantive provisions
of Sections 15A to 15HA of the SEBI Act. The argument is
too farfetched to be accepted. Section 15J of the SEBI Act
enumerates by way of illustration(s) the factors which the
Adjudicating Officer should take into consideration for
determining the quantum of penalty imposable. The
imposition of penalty depends upon satisfaction of the
substantive provisions as contained in Sections 15A to
Section 15HA of the SEBI Act.
13. There is a distinction between a continuing offence
and a repeat offence. The continuing offence is a one which
is of a continuous nature as distinguished from one which is
committed once and for all. The term “continuing offence”
was explained and elucidated by giving several illustrations
3
in State of Bihar vs. Deokaran Nenshi & Ors. . In case of
continuing offence, the liability continues until the rule or
its requirement is obeyed or complied with. On every
occasion when disobedience or noncompliance occurs and
reoccurs, there is an offence committed. Continuing offence
constitutes a fresh offence every time or occasion it occurs.
3 (1972) 2 SCC 890
14
4
In Union of India & Anr. Vs. Tarsem Singh , continuing
offence or default in service law was explained as a single
wrongful act which causes a continuing injury. A recurring
or successive wrong, on the other hand, are those which
occur periodically with each wrong giving rise to a distinct
and separate cause of action. We have made reference to
this legal position in view of clause (c) of Section 15J of the
SEBI Act which refers to repetitive nature of default and not
a continuing default. The word “repetitive” as used therein
would refer to a recurring or successive default. This factum
has to be taken into consideration while deciding upon the
quantum of penalty. This dictum, however, does not mean
that factum of continuing default is not a relevant factor, as
we have held that clauses (a) to (c) in Section 15J of the
SEBI Act are merely illustrative and are not the only
grounds/factors which can be taken into consideration while
determining the quantum of penalty.
14. We now proceed to consider each of the case as, in
our considered view, such exercise would be appropriate to
finally terminate/decide the appeals under consideration.
4 (2008) 8 SCC 648
15
C.A. No. 9797 of 2014 (Bhavesh Pabari Vs. The
Adjudicating Officer, SEBI)
(M/s. Shree Radhe Vs. The
C.A. No. 9798 of 2014
Adjudicating Officer, SEBI)
C.A. No. 9799 of 2014 (Hemant Sheth Vs. The Adjudicating
Officer, SEBI)
th
15. These appeals arise from a common order dated 10
September, 2013 passed by the Securities Appellate
Tribunal, Mumbai, (“Appellate Tribunal” for short), on
appeals preferred by Mr. Bhavesh Pabari, M/s Shree Radhe,
and Mr. Hemant Sheth impugning three separate orders all
th
dated 30 December, 2011 passed by the Adjudicating
Officer under Section 15I of the SEBI Act.
16. Impugned order passed by the Appellate Tribunal
confirms penalty of Rs.20,00,000 (Rupees twenty lakhs only)
each as imposed on the appellants by the Adjudicating
Officer under Section 15HA of the Act for violation of
Regulation Nos.4(2)(a), (b) and (g) of the SEBI (Prohibition of
Fraudulent and Unfair Trade Practices relating to Securities
Market) Regulations, 2003 (“PFUTP Regulations” for short).
16
17. Factual findings, as observed by the Adjudicating
Officer and accepted by the Appellate Tribunal as un
controvertible, are mentioned below:
(i) Bhavesh Pabari in his name and as sole proprietor of
M/s. Shree Radhe, Hemant Sheth and one Neeraj
Sanghvi had indulged in synchronized/structured and
reversed trade in the scrips of M/s. Gulshan Polyols
Ltd. (erstwhile Gulshan Sugar and Chemicals Ltd.)
th th
(“GPL” for short) from 10 April, 2006 to 8
September, 2006.
(ii) Connection/complicity between Bhavesh Pabari/M/s.
Shree Radhe, Hemant Sheth and one Neeraj Sanghvi
was established and was not disputed. Hemant Sheth
and Bhavesh Pabari/M/s. Shree Radhe had a
common introducer in the “Know Your Customer”
documentation.
th
(iii) Scrips of GPL opened at Rs.44.75 on 12 January,
th
2006, touched a peak high of Rs.103.40 on 30
th
August, 2006 and closed at Rs. 31.70 on 29
17
December, 2006. The share price of the scrips during
st
the period 1 December, 2005 to 11 January, 2006
was in the range of Rs.31.50 to Rs. 49.90 with an
average daily volume of 8,255 shares.
(iv) The three appellants along with Neeraj Sanghvi,
th
during the period 10th April, 2006 to 8 September,
2006 had traded with each other in 18,48,081 shares
of the GPL which had accounted for around 16.29% of
the total traded volume in this period.
(v) About 45% of the total shares, i.e., 8,34,453 shares
were executed via structured orders, i.e., buy and sell
orders which were placed within a gap of one minute.
Out of this, trade in 5,97,835 shares (32% of the total
shares traded) were through synchronized orders as
the rate and quantity of the buy and sell order were
identical.
th th
(vi) On 64 trading dates between 10 April, 2006 to 8
September, 2006, a reverse trading pattern was espied
in 15,18,204 shares, which had accounted for 13.38%
18
of the total market value and was more than 20% of
the market volume in the aforesaid period.
(vii) On 24 days between the period from 10 April, 2006 to
th
8 September, 2006, the quantity traded in the GPL
scrips between the connected persons was more than
50% of the market volume.
st
(viii) On 1 August, 2006, the connected transactions were
83.79% of the market volume.
(ix) Bhavesh Pabari had indulged in self trade in 60,203
GPL shares (5.1% of the total traded quantity from
th th
18 April, 2006 to 25 August, 2006).
(x) Bhavesh Pabari had executed reversal trades with
M/s. Shree Radhe and Hemant Sheth for 7,73,810
th th
shares during the period 18 April, 2006 to 25
August, 2006 which was 66% of the total traded
quantity.
(xi) Bhavesh Pabari had entered into 96 buy trades in
1,22,324 shares which were found to be synchronized
by price and time and 69 buy trades in 1,43,170
19
shares synchronized by price, time and quantity with
his sole proprietorship M/s. Shree Radhe in the period
th th
18 April, 2006 to 25 August, 2006.
(xii) Bhavesh Pabari had entered into 282 sell trades in
2,16,578 shares which were synchronized by price
and time, and 32 sell trades for 43,626 shares which
was found to be synchronized by price, time and
th
quantity with M/s Shree Radhe during the period 18
April, 2006 to 25th August, 2006.
(xiii) Bhavesh Pabari had entered into 28 buy trades for
55,915 shares synchronized by price and time and 21
buy trades for 39,350 shares synchronized by price,
time and quantity with Hemant Sheth in the period
th th
18 April, 2006 to 25 August, 2006.
(xiv) Bhavesh Pabari had entered into 22 sell trades for
41,500 shares which were found to be synchronized
by price and time and 16 sell trades for 40,422 shares
which were synchronized by price, time and quantity
20
th
with Hemant Sheth in the period 18 April, 2006 to
th
25 August, 2006.
(xv) Similarly, there were 13 buy and sell trades with
Neeraj Sanghvi.
18. The sole contention of the learned counsels appearing
on behalf of Bhavesh Pabari and M/s Shree Radhe is that
penalties of Rs.20,00,000 (Rupees twenty lakhs only) each
should not have been separately imposed on Bhavesh Pabari
and M/s Shree Radhe, of which he was the sole proprietor.
19. This contention superficially seems attractive, but on
an indepth reflection should be rejected as Bhavesh Pabari
had indulged in trading in its personal name and as also the
sole proprietor of M/s. Shree Radhe. This is clear from inter
se transactions and transactions with connected persons.
Thus, Bhavesh Pabari had transacted in two different
capacities, i.e., in his personal name and as sole proprietor
of M/s. Shree Radhe. It is in this background that total
penalty of Rs.40 lakhs (Rupees forty lakhs only) under
Section 15HA of the SEBI Act had been imposed for
violation of Regulations 4(2)(a), (b) and (g) of the PFUTP
21
Regulations as the transactions were in two different names,
though belonging to the same individual.
20. Accordingly, C.A. No.9798/2014 preferred by M/s
Shree Radhe and C.A. No.9797/2014 preferred by Bhavesh
Pabari hold no merit and are dismissed affirming the order
passed by the Appellate Tribunal and confirming the penalty
of Rs.20,00,000/ (Rupees twenty lakhs only) each imposed
under Section 15HA of the Act. C.A. No. 9799/2014 by
Hemant Sheth must also fail. In the given facts, we are not
inclined to show indulgence and leniency to the three
appellants, as the facts found are highly ignominious and
scandalous.
C.A. No. 11311 of 2013 (A.O., Securities and Exchange
Board of India vs. Bhavesh Pabari)
C.A. No. 1824 of 2014 (Securities & Exchange Board of
India Vs. M/s. Shree Radhe)
21. SEBI has filed cross appeals aggrieved by the order of
th
Appellate Tribunal dated 10 September, 2013 deleting the
penalty of Rs.10,00,000 (Rupees ten lakhs only) each
imposed on Bhavesh Pabari and M/s Shree Radhe under
22
Section 15A(a) of the SEBI Act for violating Section 11C(3)
and 11C(5) of SEBI Act.
22. The relevant portion of the impugned order passed by
the Appellate Tribunal reads:
“Additional challenge in Appeal No. 71 of
2012 and 72 of 2012, relates to imposition of
Rs.10 lac penalty upon each appellant for
violating Section 11C (3) and 11C (5) of SEBI
Act. Grievance of appellants is that failure to
furnish requisite information was due to
circumstances beyond control viz. grandmother
of Bhavesh Pabari (Appellant in Appeal No. 71
of 2012) who is proprietor of M/s. Shree Radhe
(Appellant in Appeal No. 72 of 2012) had
expired during the relevant period and,
therefore, he was in disturbed mind at the
material time. Though, explanation given does
not inspire confidence in the facts of present
case, where penalty of Rs. 20 lac has already
been upheld, in our opinion, it would be just
and proper to delete penalty of Rs. 10 lac
imposed upon both appellants”.
23. Submission of the SEBI that the impugned order did
not record any reason for deleting the said penalty, in spite
of observing that the explanation given by Bhavesh Pabari
did not inspire confidence, would be a just and fair criticism
and a good challenge. We clearly have reservations on the
ground stated or rather lack of reasoning given by the
Appellate Tribunal, especially in the light of the language of
23
Sections 15A(a) and Section 15J of the Act. However,
during the hearing, the learned counsel appearing for
Bhavesh Pabari had drawn our attention to his reply dated
th
28 September, 2009 stating that Bhavesh Pabari’s
grandmother had expired and, therefore, he had requested
for time to make an appearance. It was stated at the Bar
th
that grandmother of Bhavesh Pabari had expired on 19
September, 2009, and this aspect was highlighted and made
known to the authorities. Furthermore, Bhavesh Pabari/
M/s. Shree Radhe had submitted part information vide letter
nd
dated 2 November, 2009. These aspects and explanations
have not been considered by the Appellate Tribunal.
24. Adjudicating Officer, while imposing penalty had
th
referred to the letter dated 6 May, 2009 by which Bhavesh
Pabari and M/s. Shree Radhe were required to furnish
information of details regarding trading in the GPL scrips,
connection/relation with the GPL, its promoters/directors,
connection/relation between Hemant Sheth, etc. but the
said notice was not complied with. Thereafter, reminders
st th
dated 21 July, 2009 and 14 August, 2009 were issued,
24
but again of no avail. This was followed by summons dated
th rd th
4 September, 2009, 23 September 2009, 20 October,
th
2009 and 5 November, 2009.
25. Given the aforesaid facts, we should have remitted the
matter to the Appellate Tribunal for a fresh adjudication and
examination but would refrain from doing so in view of the
time gap, the quantum of fine imposed, and, as we have
upheld the total penalty of Rs.40,00,000/ (Rupees forty
lakhs only) imposed on the appellant under Section 15HA of
the SEBI Act. We would rather close the proceedings.
Accordingly, appeals preferred by SEBI, i.e., C.A. No.11311
of 2013 and C.A. No.1824 of 2014 are also disposed of.
C.A. No.14728/2015 (Ankur Chaturvedi vs. Securities and
Exchange Board of India);
C.A. No.14729/2019 (Jay Kishore Chaturvedi vs. Securities
and Exchange Board of India); and
C.A. No.14730/2015 (Siddharth Chaturvedi vs. Securities
and Exchange Board of India); and
26. The abovecaptioned appellants are Promotorscum
Directors of M/s. Brij Laxmi Leasing and Finance Co. Ltd., a
company whose shares were listed on the Bombay Stock
Exchange.
25
27. It is accepted and admitted that the appellants Ankur
Chaturvedi, Sidharth Chaturvedi and Jay Kishore
Chaturvedi having purchased shares of M/s. Brij Laxmi
Leasing and Finance Co. Ltd. on 2, 3 and 6 occasions
respectively, were required but had failed to make necessary
disclosures to the stock exchange as stipulated and
statutorily mandated by Regulations 13(4) and 13(4A) read
with Regulation 13(5) of the Securities and Exchange Board
of India (Probation of Insider Trading) Regulations, 1992
(“PIT Regulations” for short).
28. For the said violations, penalty of Rs.5,00,000/
(Rupees five lakhs only) in the case of Ankur Chaturvedi and
Sidharth Chaturvedi and Rs.11,00,000/ (Rupees eleven
lakhs only) in the case of Jay Kishore Chaturvedi were
imposed under Section 15A(b) of the SEBI Act. Ankur
Chaturvedi had also suffered penalty of Rs.2,00,000/
(Rupees two lakhs only) under Section 15HB of the SEBI
Act as he had sold 45,032 shares after acquiring 45,000
th
shares on 29 January, 2013, which was in violation of
Clause 4.2 of the Model Code of Conduct for Prevention of
26
Insider Trading for Listed Companies as set out in Schedule
I, Part A of the PIT Regulations.
29. The aforesaid penalties were affirmed in the impugned
order passed by the Appellate Tribunal, rejecting the
contention that the penalty so imposed was harsh and
deserved substantial reduction as there was no intention on
the part of the appellants to suppress purchase or sale or
that nondisclosure had not caused profits to appellants or
otherwise a loss to the investors and that the failure to make
disclosure was an inadvertent error without mala fide
intention.
30. The Appellate Tribunal, considering the factual
matrix, has held that the maximum penalty stipulated in the
PIT Regulations was Rs.1,00,000/ (Rupees one lakh only)
for each day during which the failure continued or
Rs.1,00,00,000/ (Rupees one crore only), whichever was
less. The penalty imposed by the Adjudicating Authority took
into consideration the mitigating factors and cannot be said
to be excessively harsh or unreasonable.
27
31. In view of the factual background and the reasoning
given by the Appellate Tribunal, we do not find any good
ground and reason to interfere with the quantum of penalty
confirmed by the impugned order passed by the Appellate
Tribunal.
C.A. No.33/2017 (Akshat Tandon and Others vs. Securities
and Exchange Board of India); and
C.A. No.9563/2018, (Badri Vishal Tandon vs. Securities
and Exchange Board of India).
32. We have jointly dealt with these two appeals as they
both relate to shares of M/s Bhawani Paper Mills Ltd. (“the
Target Company” in short).
33. In the first appeal, Akshat Tandon and 14 others are
th
aggrieved by the order dated 5 October, 2016 passed by the
Appellate Tribunal wherein their appeal against order dated
st
31 July, 2014 passed by the Adjudicating Officer imposing
penalty between Rs.3,00,000/ (Rupees three lakhs only) to
Rs.6,00,000/ (Rupees six lakhs only) for each of the 15
violations of Regulation Nos. 3(3) and 3(4) of the Securities
and Exchange Board of India (Substantial Acquisition of
28
Shares and Takeover) Regulations, 1997 (“SAST
Regulations” for short) was upheld.
34. The appellants were promotors of the target company
and together were holding 54% of the paidup shares of the
target company, which were acquired on various dates. The
acquisition was in excess of the limits prescribed under
Regulations 3(3) and 3(4) of SAST Regulations. Failure to
notify/submit report to the concerned authorities within the
stipulated time in terms of Regulations 3(3) and 3(4) is
accepted. The case of the appellants is predicated on the
principle of proportionality, for it is asserted that the
quantum of penalty imposed is excessive and unreasonably
harsh. Similar contentions were raised before the Appellate
Tribunal with the submission that the target company had
incurred huge losses and that it was a sick company.
Furthermore, there was an absence of disproportionate gain
or unfair advantage to the appellants or otherwise a loss to
the investors. Contentions were rejected on the ground that
the penalty imposed was reasonable and not harsh. To
justify the quantum, reference was made to Sections 15A(a)
29
and (b) of the SEBI Act, which stipulate that the penalty
could be Rs.1,00,000 (Rupees one lakh only) for each day
during which the violation continued and could be as high
as Rs.1,00,00,000/ (Rupees one crore only) for each
violation.
35. This court, in the exercise of its jurisdiction under
Section 15Z of the SEBI Act, cannot go into the
proportionality and quantum of the penalty imposed, unless
the same is distinctly disproportionate to the nature of the
violation which makes it offensive, tyrannous or intolerable.
Penalty by the very nature of the provision is penal. We can
interfere only where the quantum is wholly arbitrary and
harsh which no reasonable man would award. In the instant
case, the factual findings are not denied and, thus, we are
not inclined to intermeddle with the quantum of penalty.
The penalty imposed is just, fair and reasonable and, thus,
upheld.
36. The appellants have also contended that in the
absence of any prescribed limitation period, SEBI should
have issued show cause notice within a reasonable time and
30
there being a delay of about 8 years in issuance of show
cause notice in 2014, the proceedings should have been
dropped. This contention was not raised before the
Adjudicating Officer in the written submissions or the reply
furnished. It is not clear whether this contention was argued
before the Appellate Tribunal. There are judgments which
hold that when the period of limitation is not prescribed,
such power must be exercised within a reasonable time.
What would be reasonable time, would depend upon the
facts and circumstances of the case, nature of the
default/statute, prejudice caused, whether the thirdparty
rights had been created etc. The show cause notice in the
present case had specifically referred to the respective dates
of default and the date of compliance, which was made
th th
between 30 August, 2011 to 29 November, 2011 (delay
was between 927 days to 1897 days). Only upon compliance
being made that the defaults had come to notice. In the
aforesaid background, and so noticing the quantum of
fine/penalty imposed, we do not find good ground and
reason to interfere.
31
37. Now coming to the second appeal, Badri Vishal
th
Tandon has impugned the order dated 20 June, 2018
passed by the Appellate Tribunal affirming the order dated
th
29 December, 2017 passed by the Adjudicating Officer,
whereby he has been saddled with penalty of Rs. 1,50,000/
(Rupees one lakh fifty thousand only) for violation of
Regulation 7(1A) read with Regulation 7(2) of the SAST
Regulations. The appellant as Karta of Ram Mohandas
Tandon (HUF) was allotted 22,50,000 shares of the target
company by way of preferential allotment, which constituted
6.46% of its total share capital. The shares were allotted
pursuant to the approval given by the Board of Directors
th
vide letter dated 25 June, 2011. The letter of allotment was
th
received by him on 27 June, 2011, and 22,50,000 shares of
the Target Company were transferred to his demat account
th
on 12 August, 2011.
38. The Appellate Tribunal has affirmed the factual
findings that there was a delay in disclosure, which was
required to be made within two days of the receipt of
intimation of allotment of shares, as per Regulations 7(1A)
32
and 7(2) of the SAST Regulations. The intimation/letter from
the Target Company about the said acquisition was received
th
by the Bombay Stock Exchange only on 11 July, 2011.
39. Maximum penalty imposable on Badri Vishal Tandon
was upto Rs.1,00,00,000/ (Rupees one crore only). In this
backdrop, we do not find any reason to interfere with the
quantum of penalty of Rs.1,50,000/ (Rupees one lakh and
fifty thousand only) as imposed in exercise of jurisdiction
under Section 15Z of the SEBI Act.
C.A. No.1009/2017 (Magnum Equity Broking Ltd. Vs.
Securities and Exchange Board of India).
40. The appellant has assailed the order of the
th
Adjudicating Officer dated 18 July, 2014, which was
th
affirmed by the Appellate Tribunal vide order dated 28
November, 2016, whereby penalty of Rs.3,00,000/ (Rupees
three lakhs only) was imposed on the appellant for violation
of Clause A(2) of the Code of Conduct for Stock Brokers. The
said penalty was imposed pursuant to investigation into
trading in scrips of M/s Aarey Drugs and Pharmaceuticals
Ltd. (“ADPL” in short) and M/s Winsome Textile Industries
33
st
Ltd. (“WTIL” in short) during the period 1 January, 2009 to
st
31 August, 2009.
41. The brief facts are that the appellant was a stock
broker and member of the Bombay Stock Exchange Limited.
The appellant had executed synchronized trades in the
aforesaid scrips on behalf of its clients Mr. Ronak Choski,
Mr. Shailesh Patel, Ms. Nitaben Patel and Ms. Kapilaben
Patel, acting both as a stock broker as well as party stock
broker. Total volume of symphonized trade in the scrip of
WTIL was 68,02,131 shares, which were executed on one
day. Total volume of 88,89,052 shares in the case of scrip of
ADPL were transacted over a period of five days. The
appellate order succinctly refers to the figures and details of
th
such transactions, for example, on 19 February, 2009, the
appellant’s clients had executed 18 trades in the scrip of
WTIL, which constituted 68% of the total number of shares
traded on that date and 38% of the trades executed on that
date. For 7 out of 18 synchronized trades, the buy and sell
orders were perfectly matching in price and quantity.
th
Similarly, on 20 March, 2009, there were 73 synchronized
34
trades in the scrip of ADPL amounting to 43.8% of the
shares traded and 63.4% of the trades executed. The
appellate order observes that such synchronized trades
create an artificial volume, leading to ratcheting up in the
trading of the scrip and cause price fluctuations, thereby
misleading the potential investors. Such transactions create
a deceptive appearance as to the quantum of trading in the
scrip which could be understood as a viable investment
opportunity when it is not. This hurts and damages sanctity
of the securities market. Reference was specifically made to
the factum that the synchronized trade on different dates
was amounting to 3.4%, 7.17%, 20.4% and 15.12% of the
th rd
total market volume on 25 March, 2009, 23 March, 2009,
th th
26 March, 2009 and 27 March, 2009 respectively.
42. The appellant does not controvert the
transactions/trades. The case of the appellant is that the
trades were executed within a normal price range and did
not lead to an artificial price movement. Reliance was
th
placed on SEBI’s circular dated 14 September, 1999 that
cross deals executed between two clients of the same broker
35
can be conducted through the screen mechanism of the
stock exchange. Submission was that the synchronized
trade was not a result of any illicit scheme. However,
Appellate Tribunal had rejected the contentions as the
transactions/trades made by the appellants were between
family members restricted to two scrips of WTIL and ADPL
spread over a period of 6 days and had referred to the
factual matrix of the case.
43. Reference to the Securities and Exchange Board of
5
vs. which refers to an earlier
India Rakhi Trading (P) Ltd.
decision in the Securities and Exchange Board of India
6
vs. is misconceived, for the said
Kishore R. Ajmera
decisions do not hold that a broker cannot be proceeded
against for violation of Regulation 7 of the SEBI (Stock
Brokers and SubBrokers) Regulations, 1992 (“Stock Broker
Regulations” for short) for violation of Clause A(2) of the
Code of Conduct for Stock Brokers. The decisions hold that
a broker would not be liable merely because he had
facilitated the transactions, in the absence of any material to
5 (2018) 13 SCC 753 (paragraph 40)
6 (2016) 6 SCC 368
36
suggest negligence and connivance on the part of the broker.
Thus, the matter would be different as observed in the
concurring judgment of Banumathi, J. in
Rakhi Trading
Pvt. Ltd. ( Supra ) , where there was evidence to show
involvement and meeting of minds of the share broker with
the client to indulge in egregious and foul transactions, in
which circumstances the stock broker would be held liable.
While proximity of time in an isolated case may not be
conclusive, but huge volume of trading between same
set/group of brokers can in a given case reasonably point to
some kind of a fraudulent and manipulative exercise with
prior meeting of minds. Further, there is a difference
between synchronized trading involving bulk quantities and
negotiated trades as a result of consensual bargaining
involving synchronization of buy and sell orders resulting in
matching thereof as per permissible parameters which are
programmed accordingly. Test of preponderance of
probability applies for the adjudication and determination of
civil liability for violation of the SEBI Act or the provisions of
the Regulations framed thereunder (see para 65 to 69 in
37
Rakhi Trading Pvt. Ltd. ). Keeping the aforesaid parameters
in mind, the adjudicating authority had imposed penalty of
Rs.3,00,000/ (Rupees three lakhs only) under Section 15
HB of the SEBI Act, which has been upheld by the Appellate
Tribunal being commensurate with the violation.
44. For the aforesaid reasons, we do not find any infirmity
with the concurrent findings or with the quantum of penalty
imposed and the same is upheld.
C.A. No.2641/2017 (M/s Quantum Global Securities &
Leasing Company Ltd. vs. Securities and Exchange Board of
India).
45. In the present appeal, the appellant is the registered
stock broker and had indulged, as per the findings recorded
nd
in the adjudication order dated 22 July, 2014 and upheld
th
by the Appellate Tribunal vide order dated 18 January,
2017, in synchronized trades, circular trades and reversal
trades in the scrips of M/s Gangotri Textiles Ltd. during the
th st
period 7 April, 2006 to 31 May, 2006. Accordingly, the
appellant had violated Sections 12A (a), (b), (c) of the SEBI
Act and Regulations 3(a), (b), (c), (d), 4(1), 4(2)(a), (e) and (g)
38
of the PFUTP Regulations and Regulation 7 read with
Clauses A(1), (2), (3), (4) and (5) of the Code of Conduct for
Stock Brokers specified under Schedule II of the Stock
Broker Regulations. Consequently, penalty of
Rs.60,00,000/ (Rupees sixty Lakhs only) was imposed
under Section 15HA for violation of the provisions of the
SEBI Act and the PFUTP Regulations and the penalty of
Rs.15,00,000/ (Rupees fifteen lakhs only) was imposed
under Section 15HB of the SEBI Act for the violation of the
provisions of the Code of Conduct for Stock Brokers.
46. The appellant did not dispute the factual findings of
having indulged in synchronized trade, circular trade and
reversal trade in the scrips of M/s. Gangotri Textiles Ltd.
They pleaded leniency claiming that they had no mala fide
intention and their annual turnover for several years was
around Rs.5,00,000/ (Rupees five lakhs only). Lastly, their
contribution towards Last Traded Price (LTP) variation was
nominal. The contentions have to be rejected as the
appellant was a part of the larger game plan along with
other entities who had indulged in synchronized, circular
39
and reversal trading leading to a total cumulative positive
and negative LTP contribution of Rs.999.25 and Rs.1007.25
respectively. It is to be further noted that the penalty
imposable under 15HA of the SEBI Act could be upto
Rs.25,00,00,000/ (Rupees twentyfive crores only) or three
times the amount of profit made out of such practices
whichever was higher. Thus, the penalty of Rs.60,00,000/
(Rupees sixty lakhs only) was not unreasonable and
excessive. Similarly, penalty of Rs.15,00,000/ (Rupees
fifteen lakhs only) for failing to adhere to the standards
required to be maintained by the stock brokers which could
be as high as Rs.1,00,00,000/ (Rupees one crore only) was
not excessive, unreasonable or harsh. Penalty was also
imposed on others who had participated in the nefarious
plan. Findings are correct and unchallengeable. We do not
find any good ground and reason to interfere with the
quantum of penalty.
(Durga Prasad Yadav & Anr. vs.
C.A. No.6160/2018
Securities and Exchange Board of India).
47. Durga Prasad Yadav and Jai Hind Kumar have filed
the present appeal having suffered penalty of
40
Rs.1,00,00,000/ (Rupees one crore only) under Section 15
A(a) of the SEBI Act for violation of Section 11C(3) of the
th
SEBI Act vide adjudication order dated 20 January, 2016
which stands affirmed by the Appellate Tribunal in its order
th
dated 15 January, 2018.
48. The appellants were required to furnish particulars
about the plans/schemes offered to the public, funds
mobilized, Memorandum of Association, details of Directors,
etc. in order to examine the matter under Section 11AA of
the SEBI Act and the SEBI (Collective Investment Schemes),
Regulations, 1999 (“CIS Regulations” for short). For this
nd th
purpose, various letters dated 22 November, 2012, 11
th th
January, 2013, 7 November, 2013 and 20 February, 2014
were written by SEBI to the two appellant Directors, two
other Directors and M/s Skylark Land Developers &
Infrastructure India Pvt. Ltd. for furnishing of
information /documents/reports. Since there was an
inordinate delay, default and failure in furnishing
information and responding to these letters, fresh summons
th
were issued on 30 July, 2014 under Section 11C(3) of the
41
SEBI Act requiring them to furnish the details to which
again there was no response. Consequently, second
th
summons dated 12 September, 2014 were issued for
nd
furnishing information by 22 September, 2014, to which
yet again there was no response. Thereafter, show cause
th
notice on 30 June, 2015 was issued to which a part reply
rd
was given by the appellants on 23 September, 2015. An
th
email dated 30 November, 2015 was also sent by SEBI
th
asking them to reply before 10 December, 2015, with an
th
opportunity to appear on 15 December, 2015. This was
also communicated by forwarding the notice through Speed
Post AD, which was returned undelivered in case of Durga
Prasad. Thus, several opportunities were given to ensure
th
compliance by the appellants. Afterwards, on 15 December,
2015 Subodh Kumar Gupta, authorized representative of the
appellants and others had appeared and sought
nd
adjournment for 22 December, 2015, on which date a reply
th
was filed. Subsequently, an additional reply dated 30
December, 2015 was furnished. Appellants in the aforesaid
replies had stated that their offices were sealed and,
therefore, the required details and information could not be
42
furnished. Further, SEBI had not provided them necessary
documents including the copy of complaint, affidavit,
evidence against them and the investigation report.
49. We would now refer to the background of the case and
why notices/summons were issued. The aforesaid notices
and summons were issued pursuant to orders passed by the
High Court of Madhya Pradesh in the year 2010 in Public
Interest Litigation against various companies including M/s
Skylark Land Developer and Infrastructure India Pvt. Ltd.
for cheating thousands of investors in fraudulent schemes
by promising high returns. Pursuant to orders passed by
the High Court, different authorities including SEBI were
given liberty to take appropriate action in accordance with
law. Central Bureau of Investigation was also directed to
conduct investigation. Therefore, SEBI had issued notice to
the aforesaid company, the two appellants and two other
Directors to provide information of documents for alleged
violation of Section 11C of the SEBI Act.
50. During the course of hearing by SEBI, most details as
provided by the appellants were general in nature. We would
43
observe that in case there was no violation pertaining to
mobilization of funds from the public under various
schemes/arrangements, this could have been so stated in
clear and categoric terms. Moreover, the contention that the
offices were sealed which rendered them incapable to
furnish information has been rejected for two good reasons.
First, this stand is belated and held to be an afterthought
when it could have been raised at the first instance when
th
the reply dated 5 December, 2012 was furnished, given
th
that the records were seized by the police on 5 May, 2011.
Second, assertion was contradicted by their own conduct
when during the proceedings they had submitted a few
documents, which were incomplete and not as desired. They
did not make any distinction as to the documents within
their possession and as to those with the police. Appellate
Tribunal had in these circumstances affirmed the finding
that there was a lack of good faith and failure in complying
with the aforesaid notices/letters/summons/emails.
Adjudicating Officer had, therefore, rightly recorded that
noncompliance of summons had hampered the further
course of investigation. The failure was without any
44
justification. Agreeing with the said findings, the Appellate
Tribunal has observed that details were withheld with a view
to delay the investigation being conducted by SEBI to the
detriment of investors from whom funds were collected by
the appellants in contravention of CIS Regulations.
51. We do not find any fault with the reasoning given. We
are of the opinion that the fault squarely lied with the
appellants and, thus, penalty of Rs.1,00,00,000/ (Rupees
one crore only) for violation of Section 11C(3) under Section
15A(a) of the SEBI Act does not call for any interference.
th
52. The reference made vide order dated 14 March, 2016
and the above captioned Civil Appeals are, accordingly,
disposed of. In the facts and circumstances of the cases,
there shall be no order as to costs.
…………………………….,CJI
[RANJAN GOGOI]
……………………………….,J.
[DEEPAK GUPTA]
……………………………….,J.
[SANJIV KHANNA]
New Delhi;
February 28, 2019.