Pooja Menghani Vs Sebi

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2595 OF 2013

SECURITIES AND EXCHANGE BOARD OF INDIA … Appellant(s)

Versus

SHRI KANAIYALAL BALDEVBHAI PATEL … Respondent (s)

With

CIVIL APPEAL NO. 2596 OF 2013

[SECURITIES AND EXCHANGE BOARD OF INDIA V. SHRI DIPAK PATEL]

CIVIL APPEAL NO. 2666 OF 2013 [SECURITIES AND EXCHANGE BOARD OF INDIA V. SUJIT KARKERA AND ORS.]

CIVIL APPEAL NO. 5829 OF 2014 [Pooja Menghani v. SECURITIES AND EXCHANGE BOARD OF INDIA]

CIVIL APPEAL NO. 11195-11196 OF 2014 [Vibha Sharma and Anr. V. SECURITIES AND EXCHANGE BOARD OF INDIA]

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J U D G M E N T

N. V. RAMANA J.

1. The important question of law, arising in these batch of cases, being

similar and the facts involved being largely comparable, all the

appeals were heard together and are being decided by this common

judgment.

2. This case revolves round the legality of ‘non-intermediary front-

running’ in security market under the SECURITIES AND EXCHANGE

BOARD OF INDIA (PROHIBITION OF FRAUDULENT AND UNFAIR TRADE

PRACTICES RELATING TO SECURITIES MARKET) REGULATIONS, 2003

[hereinafter ‘FUTP 2003’ for brevity]. As SEBI Appellate Tribunal

[hereinafter ‘SAT’ for brevity] has taken two different views in

different cases appealed herein, Securities and Exchange Board of

India [herein after ‘SEBI’ for brevity] as well as private individuals,

who are alleged to have been involved in front running, are in appeal

before us.

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3. A brief factual background would be necessary before we deal with

the question of law that has arisen in this case instant. Broadly to

understand the issue at hand, the facts in CIVIL APPEAL NO. 2595 OF

2013 AND 2596 OF 2013 (related cases) may be stated in brief. SEBI

investigated into the activities of Shri Kanaiyalal Baldevbhai Patel

[herein after ‘KB’ for brevity] an individual trader. During the

investigation, it was found that KB was putting orders ahead of

orders placed by Passport India Investment (Mauritius) Ltd. [herein

after ‘PII’ for brevity]. One Dipak Patel, was the portfolio manager of

PII, who also happens to be a cousin of KB and one Shri

Anandkumar Baldevbhai Patel [herein after ‘AB’ for brevity]. It was

alleged that Dipak Patel provided information to KB and AB

regarding forthcoming trading activity of the PII. It is to be noted that

trades were executed using the telephone number registered in the

name of AB at the common residential address of KB and AB. Taking

advantage of the information received from Dipak Patel, KB had

indulged in trading before the PII and consequently squared off the

position when the order of PII were placed in the market. It was

estimated that the KB earned a total profit of Rs. 1,56,32,364.01/-

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from the alleged trades. This Court in CIVIL APPEAL NO. 2594 OF

2013, by order dated 05.04.2017, while remanding the matter back

to the Appellate Tribunal with respect to AB, held that there is no

finding or conclusion recorded with respect to AB in the following

manner-

Learned counsel for the appellant (SEBI) has

vehemently urged that such findings are

recorded in the Adjudication Order and the

said order has merged with the order of the

learned Appellate Tribunal. We disagree with

the aforesaid contention urged by the learned

counsel for the appellant. In the appeal(s) filed

by the aggrieved person(s) against the order(s)

of the Adjudicating Officer, the learned

Appellate Tribunal was expected to record its

own independent findings and arrive at its own

conclusions for holding the respondent liable

for the penalty imposed. It seems that the

learned Appellate Tribunal has proceeded on

the basis that the case of the respondent is

same and similar to the case of Kanaiyalal

Baldev Patel and Dipak Patel which, evidently,

is not.

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4. In CIVIL APPEAL NO.2666 OF 2013, Sujit Karkera and Group were

trading through B.P. Equity Pvt. Ltd. SEBI alleges that they were

trading ahead of the trades of CITIGROUP Global Markets Mauritius

Pvt. Ltd.(CGMMPL) on the basis of information provided by Suresh

Menon (trader of CGMMPL) who was in possession of the orders of

CGMMPL for 6 scrip days. SEBI in its investigation had found that

there were several calls made between Suresh Menon and his family

friend Sujit Karkera during this time period of 6 days. In these

telephonic conversations, it was alleged that there was exchange of

information related to scrip name, order quantity, order timing, and

order price of the orders placed by Suresh Menon for CGMMPL. Sujit

Karkera utilized the information provided by Suresh Menon to trade

thereby making huge profits.

5. In CIVIL APPEAL NO.11195-96 OF 2014, Jitendra Kumar Sharma was

an equity dealer employed by the Central Bank of India. His

responsibilities entailed preparation of charts for the chief equity

dealer and placing of orders based on instructions of the chief equity

dealer. Vibha Sharma, who is the wife of Jitendra Kumar Sharma,

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was a regular trader in the stock market and this fact was disclosed

to Central Bank of India as a good practice of making disclosure to

the employer. It is the allegation of SEBI that Vibha Sharma engaged

herself in front running Central Bank of India’s large scale orders

allegedly with the knowledge obtained from her husband. Further the

SEBI had alleged that Vibha Sharma’s trades substantially matched

with the trades of the bank during the relevant period thereby

violating regulations 3(a), (b), (c), (d) and 4(1) of FUTP 2003.

6. In CIVIL APPEAL NO. 5829 OF 2014, facts of the case are that

appellant used to trade in scrips of four companies namely Amtek

Auto Ltd., Amtek India Ltd., Monnet Ispat Ltd. and Ahmednagar

Forgings Ltd. through Religare Securities Ltd., ISF Securities Ltd.,

India Infoline Securities Ltd. and Narayan Securities Private Ltd. It is

alleged against the appellant that, she had bought and sold equal

quantities of shares in large volume in these four scrips by utilizing

the information provided by Deepak Khurana who was privy to

certain confidential information of Religare. SEBI conducted an

investigation in the trading of appellant from June 1, 2008 to

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January 12, 2009. During the investigation, SEBI noticed

irregularities in her dealings in the scrips of above mentioned four

companies. A general trend of trading was noticed which further

revealed that the appellant was indulged in Front Running. It was

found that the appellant’s sell orders (quantity and price)

substantially matched with the buy orders (quantity and price) of

other traders and that her sell order limit price was always above the

sell LTP but was same or very close to the buy limit price of other

traders. Moreover the selling price, quoted by her, was close to the

highest price reached on market on those days.

7. With this factual background, a reference needs to be made to the

scheme of FUTP 2003. SEBI, by a notification under Section 30 of

the SEBI Act, 1992, dated 17.07.2003, formulated FUTP 2003.

8. Indisputably, the object and purpose of this regulation (FUTP 2003)

is to safeguard the investing public and honest businessmen. The

aim is to prevent exploitation of the public by fraudulent schemes

and worthless securities through misrepresentation, to place

adequate and true information before the investor, to protect honest

8

enterprises seeking capital by accurate disclosure, to prevent

exploitation against the competition afforded by dishonest securities

offered to the public and to restore the confidence of the prospective

investor in his ability to select sound securities.

9. FUTP 2003 has three chapters, namely ‘preliminary’, ‘prohibition of

fraudulent and unfair trade practices relating to securities market’

and ‘investigation’. Regulation 1 contains the short title and

commencement. Regulation 2 consists of certain definitions. Clause

(b) of regulation 2 defines ‘dealing in securities’ which includes an act

of buying, selling or subscribing pursuant to any issue of any

security or agreeing to buy, sell or subscribe to any issue of any

security or otherwise transacting in any way in any security by any

person as principal, agent or intermediary referred to in Section 12 of

the SEBI Act. Clause (c) of regulation 2 defines fraud in the following

manner-

c) "fraud" includes any act,

expression, omission or

concealment committed whether in

a deceitful manner or not by a

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person or by any other person with

his connivance or by his agent while

dealing in securities in order to

induce another person or his agent

to deal in securities, whether or not

there is any wrongful gain or

avoidance of any loss, and shall also

include-

(1) a knowing misrepresentation of

the truth or concealment of material

fact in order that another person

may act to his detriment;

(2) a suggestion as to a fact which is

not true by one who does not believe

it to be true;

(3) an active concealment of a fact

by a person having knowledge or

belief of the fact;

(4) a promise made without any

intention of performing it;

(5) a representation made in a

reckless and careless manner

whether it be true or false;

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(6) any such act or omission as any

other law specifically declares to be

fraudulent,

(7) deceptive behaviour by a person

depriving another of informed

consent or full participation.

(8) a false statement made without

reasonable ground for believing it to

be true.

(9) The act of an issuer of securities

giving out misinformation that

affects the market price of the

security, resulting in investors

being effectively misled even though

they did not rely on the statement

itself or anything derived from it

other than the market price.

And "fraudulent" shall be construed

accordingly;

Nothing contained in this clause

shall apply to any general comments

made in good faith in regard to

(a) the economic policy of the

government

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(b) the economic situation of the

country

(c) trends in the securities market

or

(d) any other matter of a like nature

whether such comments are made

in public or in private

10. Regulation 3 prohibits certain dealings in securities, whereas

regulation 4 prohibits manipulative, fraudulent and unfair practices.

Regulation 5 deals with the power of the board to order investigation.

Regulation 6 elaborates on the power of the investigating authority.

11. It is important to note that SEBI has amended the regulation, a

number of times, to keep up with the technology and times. A

reference may be made to the amendments carried out to the

regulation -

Table No.1- comparison of relevant provisions

FUTP 1995 FUTP 2003 (APPLICABLE REGULATION) AMENDMENT OF

2013

12

R E

G U

L A

T IO

N 2

( C ) (D

E F

IN IT

IO N

S )

“Fraud” includes any of the following acts committed by a party to ac contract, or with his connivance, or by his agent, with intent to decive another party thereto or his agent, or to induce him to enter into the contract:- (1.) The suggestion, as to a fact,

of that which is not true, by one who does not believe it to be true;

(2.) The active concealment of a fact by one having knowledge or belief of the fact;

(3.) A promise made without any intention of performing it;

(4.) Any other act fitted to deceive;

(5.) Any such act or omission as the law secially declares to be fraudulent;

(6.) And “fraudulent” shall be construed accordingly

R E

G U

L A

T IO

N 2

( C ) (D

E F IN

IT IO

N S )

“fraud” includes any act, expression, omission or concealment committed whether in a deceitful manner or not by a person or by any other person with his connivance or by his agent while dealing in securities in order to induce another person or his agent to deal in securities, whether or not there is any wrongful gain or avoidance of any loss, and shall also include- (1) A knowing misrepresentation of

the truth or concealment of material fact in order that another person may act to his detriment;

(2) A suggestion as to a fact which is not true by one who does not believe it to be true;

(3) An active concealment of a fact by a person having knowledge or belief of the fact;

(4) A promise made without any intention of performing it;

(5) A representation made in a reckless and careless manner whether it be true or false;

(6) Any such act or omission as any other law specifically declares to be fraudulent,

(7) Deceptive behavior by a person depriving another or informed consent or full participation,

(8) A false statement made without reasonable ground for believing it to be true.

(9) The act of an issuer of securities giving out misinformation that affects the market price of the security, resulting in investors being effectively misled even though they did not rely on the statement itself or anything derived from it other then the market price.

No amendments to

Section 2(c)

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R E

G U

L A

T IO

N 3

( P ro

h ib

it io

n o

f c e rt

a in

d e a li

n g s i

n s

e c u ri

ti e s )

No person shall buy, sell or otherwise deal in securities in a fraudulent manner.

R E

G U

L A

T IO

N 3

( P ro

h ib

it io

n o

f c e rt

a in

d e a li

n g s i

n s

e c u ri

ti e s )

Prohibition of certain dealings in securities No person shall directly or indirectly- (a)buy, sell or otherwise deal in securities in a fraudulent manner; (b)use or employ, in connection with issue, purchase or sale of any security listed or proposed to be listed in a recognized stock exchange, any manipulative or deceptive device or contrivance in contravention of the provisions of the Act or the rules or the regulations made there under; (c) employ any device, scheme or artifice to defraud in connection with dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange; (d)engage in any act, practice, course of business which operates or would operate as fraud or deceit upon any person in connection with any dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange in contravention of the provisions of the Act or the rules and the regulations made there under.

No amendments to

Section 3(c)

14

R E

G U

L A

T IO

N 4

( P

R O

H IB

IT IO

N A

G A

IN S T

M A

R K

E T

M A

N IP

U L A

T IO

N S )

No person shall- (a) Effect, take part in, or enter

into, either directly or indirectly, transactions in securities, with the intention of artificially raising or depressing the prices of securities, with the intention of artificially raising or depressing the prices of securities and thereby inducing the sale or purchase of securities by any person; (b) Indulge in any act, which is

calculated to create a false or misleading appearance of trading on securities market; (c) Indulge in any act which in

reflection of prices of securities based on transactions that are not genuine trade transactions; (d) Enter into a purchase or

sale of any securities, not intended to effect transfer of beneficial ownership but intended to operate only as a device to inflate, depress, or cause fluctuations in the market price of securities; (e) Pay, offer or agree to pay or

offer, directly or indirectly, to any person any money or money’s worth for inducing another person to purchase or sell any security with the sole objection of inflating, depressing, or causing fluctuations in the market price of securities.

R E

G U

L A

T IO

N 4

( P

R O

H IB

IT IO

N A

G A

IN S T

M A

N IP

U L A

T IV

E ,

F R

A U

D U

L E

N T

A N

D U

N F

A IR

T R

A D

E P

R A

C T

IC E

S ) (1) Without prejudice to the

provisions of regulation 3, no person shall indulge in a fraudulent or an unfair trade practice in securities.

(2) Dealing in secuties shall be deemed to be a fraudulent or an unfair trade practice if it involves fraud and may include all or any of the following, namely:-

(a.) Indulging in a act which creates false or misleading appearance of trading in the securities market;

(b.) Dealing in a security not intended to effect transfer of beneficial ownership but intended to operate only as a device to inflate, depress or cause fluctuations in the price of such security for wrongful gain or avoidance of loss; …

(e.) Any act or omission amounting to manipulation of the price of a security; …

(q.) An intermediary buying or selling securities in advance of a substantial client order or whereby a futures or option position is taken about an impending transaction in the same or related futures or options contract.

Explanation.- For the purposes of this sub- registration, for the removal of doubt, it is clarified that the acts or omissions listed in this sub- regulation are not exhaustive and that an act or omission is prohibited if it falls within the purview of regulation 3 notwithstandin g that it is not included in this sub-regulation or is described as being committed only by a certain category or persons in this sub-regulation’

12. Although aforesaid amendments are made to the regulation, yet

such amendments sometimes fail to live up to human ingenuity and

growth of technology. Usurpation of reprehensible profits by

fraudsters, who are not entitled to them, must be made answerable

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by this Court as per established tenants of rule of law without

leaving incentives for fraudulent practices, based on creativity of

disingenuous, to survive the legal gambits. Before embarking upon

the necessary discussions, I would like to record my views on a

somewhat unclear picture that emerge from undefined concepts

contained in the Act and the Regulations framed there under, a

comprehensive legislation can bring about more clarity and certainty

on these aspects.

13. Submissions of Mr. K. T. S. Tulsi, learned senior advocate,

appearing on behalf of the appellant in CIVIL APPEAL NO. 5829 OF

2014.

� The finding with regard to the appellant being guilty of fraud

under regulations 3 and 4 of FUTP 2003 is contrary to the

definition of fraud as contained in Regulation 2(1)(c) of the said

Regulations.

� Sub-clauses (i), (j), (l), (m), (p), (o) and (q) of clause (2) of

regulation 4 expressly make themselves applicable only to the

case of intermediaries and not to individual buyers or sellers.

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The rest of the sub-clauses being part of the scheme which

seeks to regulate the conduct of intermediaries, will be deemed

on their face, to pertain to activities undertaken by

intermediaries. Thus, the whole of Regulation 4 seems to be

inapplicable to the case of the applicant.

Submissions of Mr. Arvind P. Datar, learned senior advocate,

appearing on behalf of SEBI-

� That the ambit of FUTP regulations has been substantially

increased from 1995 to 2003.

� That inclusion of specific prohibition of front-running with

respect to intermediaries under Regulation 4 (2)(q) should not

whittle the scope of regulation 4 of the FUTP 2003.

� Moreover, ‘Expressio Unius Est Exclusio Alterius’ may not be a

safe principle to oust the liability for non-intermediary front-

running.

14. Other learned counsels appearing for parties have either

adopted the submissions made by the above named advocates or

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provided alternative reasons for the conclusions reached by the

abovementioned advocates.

15. The question which has arisen for our consideration is whether

‘front running by non-intermediary’ is a prohibited practice under

regulations 3 (a), (b), (c) and (d) and 4(1) of FUTP 2003?

16. As this case involves practice of ‘front-running’ in security

market, a reference may be made to various definitions and

meanings of front-running-

Major Law

Lexicon by P.

Ramanatha

Aiyar (4th Ed.

(2010)

FRONT RUNNING.- Buying or selling

securities ahead of a large order so as

to benefit from the subsequent price

move.

This denotes persons dealing in the

market, knowing that a large

transaction will take place in the near

future and the parties are likely to

move in their favour.

The illegal private trading by a broker

or market maker who has prior

knowledge of a forthcoming large

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movement in prices

The Black’s Law

dictionary (9th

Ed.)

Front running, n. Securities. A

broker’s or analyst’s use of non-public

information to acquire securities or

enter into options or futures contracts

for his or her own benefit, knowing

that when the information becomes

public, the price of the securities will

change in a predictable manner. This

practice is illegal. Front-running can

occur in many ways. For example, a

broker or analyst who works for a

brokerage firm may buy shares in a

company that the firm is about to

recommend as a strong buy or in

which the firm is planning to buy a

large block of shares.

Nancy Folbre1

In the world of financial trading, a front-

runner is someone who gains an unfair

advantage with inside information

1 Nancy Folbre, The Front-Runners of Wall Street, 07.04.2014 (The New York Times).

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17. SEBI has defined front-running in one of its circular2 in the

following manner-

Front-running; for the purpose of

this circular, front running means

usage of non public information to

directly or indirectly, buy or sell

securities or enter into options or

futures contracts, in advance of a

substantial order, on an impending

transaction, in the same or related

securities or futures or options

contracts, in anticipation that when

the information becomes public; the

price of such securities or contracts

may change.

18. Further a consultative paper3 issued by SEBI had grouped front

running to be an undesirable manipulative practice in the following

manner-

‘However, SEBI Act does not

prescribe or specify as to which

practice would be considered to be

2 Circular CIR/EFD/1/2012, dated 25.05.2012. 3 Consultative Paper issued by SEBI, pursuant to a Press release No. 34/95 dated March 16, 1995.

20

fraudulent and unfair trade

practices. While the fraudulent and

unfair trade practices are commonly

understood, it would be desirable if

these practices are defined

specifically.

..this will bring about clarity among

the intermediaries, issuers,

investors and other connected

persons in the securities markets

about the practices that are

prohibited, fraudulent and unfair.

…The draft defines fraudulent and

unfair trade practices. These

regulations seek to cover market

manipulation on the stock

exchanges also. Practices like

wash sales, front-running, price

rigging, artificial increasing or

decreasing the prices of the

securities are brought within the

ambit of the regulations’

(emphasis added)

21

19. In actuality, front-running is more complicated than these

definitions suggest. It comprises of at least three forms of conduct.

They are: (1) trading by third parties who are tipped on an impending

block trade ("tippee" trading); (2) transactions in which the owner or

purchaser of the block trade himself engages in the offsetting futures

or options transaction as a means of "hedging" against price

fluctuations caused by the block transaction ("self-front-running");

and (3) transactions where a intermediary with knowledge of an

impending customer block order trades ahead of that order for the

intermediary's own profit ("trading ahead"). In this batch of appeals

we are concerned with the first and the last types of trade i.e., tippee

trading and trading ahead. It is important to note that trading ahead

has been explicitly recognized under regulation 4(2)(q) of FUTP 2003.

20. A word on interpretation would be appropriate before I take up

legal aspects of this case. Mr. K.T.S. Tulsi, learned senior counsel,

states that penal laws have to be strictly construed. He places

reliance on Govind Impex Pvt. Ltd. v. Income Tax Department4,

4 (2011) 1 SCC 529.

22

Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd.5

Although strict construction is well established principle when

interpreting a penal provision, but such interpretation should not

result in incongruence when compared with the purpose of the

regulation. In SEBI v. Kishore R. Ajmera, this Court observed that-

the SEBI Act and the Regulations framed

there under are intended to protect the

interests of investors in

the Securities Market which has seen

substantial growth in tune with the

parallel developments in the economy.

Investors' confidence in the

Capital/Securities Market is a reflection of

the effectiveness of the regulatory

mechanism in force. All such measures are

intended to preempt manipulative trading

and check all kinds of impermissible

conduct in order to boost the investors'

confidence in the Capital market. The

primary purpose of the statutory

enactments is to provide an environment

conductive to increased participation and

investment in the securities market which

5 (2004) 1 SCC 391.

23

is vital to the growth and development of

the economy. The provisions of the SEBI

Act and the Regulations will, therefore,

have to be understood and interpreted in

the above light.6

21. The object and purpose of FUTP 2003 is to curb “market

manipulations”. Market manipulation is normally regarded as an

“unwarranted” interference in the operation of ordinary market forces

of supply and demand and thus undermines the “integrity” and

efficiency of the market.7 This Court in N. Narayanan v.

adjudicating Officer, SEBI8, has laid down that-

Prevention of market abuse and

preservation of market integrity is the

hallmark of Securities Law. Section

12A read with Regulations 3 and 4 of

the Regulations 2003 essentially

intended to preserve ‘market integrity’

and to prevent ‘Market abuse’. The

object of the SEBI Act is to protect

the interest of investors in securities

and to promote the development and

6 SEBI v. Kishore R. Ajmera, (2016) 6 SCC 368 7 Palmer’s Company Law, 25th Edition (2010), Volume 2 at page 11097; Gower & Davies – Principles of Modern Company Law, 9th Edition (2012) at page 1160. 8 (2013) 12 SCC 152

24

to regulate the securities market, so

as to promote orderly, healthy growth

of securities market and to promote

investors protection. Securities

market is based on free and open

access to information, the integrity of

the market is predicated on the

quality and the manner on which it is

made available to market. ‘Market

abuse’ impairs economic growth and

erodes investor’s confidence. Market

abuse refers to the use of

manipulative and deceptive devices,

giving out incorrect or misleading

information, so as to encourage

investors to jump into conclusions,

on wrong premises, which is known

to be wrong to the abusers. The

statutory provisions mentioned

earlier deal with the situations where

a person, who deals in securities,

takes advantage of the impact of an

action, may be manipulative, on the

anticipated impact on the market

resulting in the “creation of

artificiality’.

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22. From the line of decisions cited herein above, it can be inferred

that as a matter of principle, while interpreting this regulation, the

court must weigh against an interpretation which will protect unjust

claims over just, fraud over legality and expediency over principle.

Once this rule is clearly established, individual cases should not

pose any problem.

23. It is equally well settled that in interpreting a statute, effort

should be made to give effect to each and every word used by the

Legislature. The Courts should presume that the Legislature inserted

every part for a purpose and the legislative intention is that every

part of the statute should have effect. It must be kept in mind that

whenever this Court is seized with a matter which requires judicial

mind to be applied for interpreting a law, the effort must always be

made to realize the true intention behind the law.

24. Before dealing with the legal issue we are seized with, it would

be important to observe certain definition as occurring under the

regulations. The definition of ‘dealing in securities’ acquires some

26

importance as charge under regulation 3 completely depends on the

aspect whether the tippee was dealing in securities in the first

instant or not. For a transaction to be termed as dealing in

securities, following ingredients need to be satisfied-

1. includes an act of buying, selling or subscribing

pursuant to any issue of any security, or

2. Agreeing to buy, sell or subscribe to any issue of

any security, or;

3. Otherwise transacting in any way in any security

by any person as principal, agent or intermediary

referred to in Section 12 of the Act.

25. The definition of ‘dealing in securities’ is broad and inclusive in

nature. Under the old regime the usage of term ‘ to mean’ has been

changed to ‘includes’, which prima facie indicates that the definition

is broad. Moreover, the inclusion of term ‘otherwise transacting’ itself

provides an internal evidence for being broadly worded so as to

include situations such as the present one.

26. There is no dispute as to the fact that fraud is jurisprudentially

very difficult to define or cloth it with particular ingredients. A

generalized meaning may be difficult to be attributed, as human

27

ingenuity would invent ways to bypass such behaviour. It is to be

noted that fraud is extensively used in various regulatory framework

which mandates me to take notice of the conceptual and definitional

problem it brings along. Fraud is among the most serious, costly,

stigmatizing, and punitive forms of liability imposed in modern

corporations and financial markets. Usually, the antifraud provisions

of the security laws are not coextensive with common-law doctrines

of fraud as common-law fraud doctrines are too restrictive to deal

with the complexities involved in the security market, which is also

portrayed by the changes brought in through the 2003 regulation to

the 1995 regulation.

27. On a comparative analysis of the definition of "fraud" as existing

in the 1995 regulation and the subsequent amendments in the 2003

regulations, it can be seen that the original definition of "fraud"

under the FUTP regulation, 1995 adopts the definition of "fraud"

from the Indian Contract Act, 1872 whereas the subsequent

definition in the 2003 regulation is a variation of the same and does

not adopt the strict definition of "fraud" as present under the Indian

28

Contract Act. It includes many situations which may not be a "fraud"

under the Contract Act or the 1995 regulation, but nevertheless

amounts to a "fraud" under the 2003 regulation.

28. The definition of ‘fraud’ under clause (c) of regulation 2 has two

parts; first part may be termed as catch all provision while the

second part includes specific instances which are also included as

part and parcel of term ‘fraud’. The ingredients of the first part of the

definition are-

1. includes an act, expression, omission or

concealment whether in a deceitful

manner or not;

2. By a person or by any other person with

his connivance or his agent while dealing

in securities;

3. So that the same induces another person

or his agent to deal in securities;

4. Whether or not there is any wrongful gain

or avoidance of any loss.

The second part of the definition includes specific instances-

29

(1) a knowing misrepresentation of the

truth or concealment of material fact in

order that another person may act to

his detriment;

(2) a suggestion as to a fact which is not

true by one who does not believe it to be

true;

(3) an active concealment of a fact by a

person having knowledge or belief of the

fact;

(4) a promise made without any intention

of performing it;

(5) a representation made in a reckless

and careless manner whether it be true

or false;

(6) any such act or omission as any other

law specifically declares to be fraudulent,

(7) deceptive behavior by a person

depriving another of informed consent or

full participation.

(8) a false statement made without

reasonable ground for believing it to be

true.

(9) The act of an issuer of securities

giving out misinformation that affects

the market price of the security, resulting

30

in investors being effectively misled even

though they did not rely on the statement

itself or anything derived from it other

than the market price.

29. Although unfair trade practice has not been defined under the

regulation, various other legislations9 in India have defined the

concept of unfair trade practice in different contexts. A clear cut

generalized definition of the ‘unfair trade practice’ may not be

possible to be culled out from the aforesaid definitions. Broadly trade

practice is unfair if the conduct undermines the ethical standards

and good faith dealings between parties engaged in business

transactions. It is to be noted that unfair trade practices are not

subject to a single definition; rather it requires adjudication on case

to case basis. Whether an act or practice is unfair is to be determined

by all the facts and circumstances surrounding the transaction. In

the context of this regulation a trade practice may be unfair, if the

conduct undermines the good faith dealings involved in the

9 Monopolies and Restrictive Trade Practices Act, 1969, Section 36A; The Consumer Protection Act, 1986, Section 2(1)(r); The Competition Act, 2002, Section 3; The Food Security and Standards Act, 2006, Section 24(2); Specific Relief Act, 1963, Section 20; Usurious Loans Act, 1918, Section 3.

31

transaction. Moreover the concept of ‘unfairness’ appears to be

broader than and includes the concept of ‘deception’ or ‘fraud’.

30. Although learned counsel for SEBI has admitted that there is no

difference between fraud and unfair trade practice under regulation 4

(1), but we are of the opinion that such submission may not be

conclusive. As these cases do not require further investigation, the

question regarding the scope of prosecution for unfair trade practice

is kept open.

31. Regulation 3 prohibits a person from committing fraud while

dealing in securities. A reading of the aforesaid provision describes

the width of the power vested with the SEBI to regulate the security

market. In our view, the words employed in the aforesaid provisions

are of wide amplitude and would therefore take within its sweep the

inducement to bring about inequitable result which has happened in

this case instant.

32. Regulation 4 prohibits manipulative, fraudulent and unfair

trade practices. It is to be noted that the regulation 4 (1) starts with

32

the phrase ‘without prejudice to the provisions of regulation 3’. This

phrase acquires significance as it portrays that the prohibitions

covered under the regulation 3 do not bar the prosecution under

regulation 4 (1). Therefore regulation 4 (1) has to be read to have its

own ambit which adds to what is contained under regulation 3.

33. Regulation 4 (2)(q) of FUTP 2003 states that-

(2) Dealing in securities shall be deemed

to be a fraudulent or an unfair trade

practice if it involves fraud and may

include all or any of the following,

namely:-

…

q) an intermediary buying or selling

securities in advance of a substantial

client order or whereby a futures or

option position is taken about an

impending transaction in the same or

related futures or options contract.

Under the provisions of regulation 4(2)(q), only intermediary trading

on the information of substantial client order, if it involves fraud then

the dealing in securities will be deemed to be fraudulent.

33

34. An argument has been introduced by the Mr. K.T.S. Tulsi,

learned senior counsel, that sub-clause (q) of regulation 4(2) includes

only front-running by the intermediaries, by implication it means

that any persons other than intermediaries are excluded from the

rigors of law. In our opinion such submission cannot be sustained in

the eyes of law as the intention of the legislation was to provide for a

catchall provision and the deeming provision under sub-clause (q) of

regulation 4(2) was specifically provided as the intermediary are in

fiduciary relationship with the clients. There is no dispute as to the

fact that a fiduciary must act in utmost good faith; he should not act

for his own benefit or benefit of any third party without the informed

consent of his client. The essential irreducible core of fiduciary duty

is the duty of loyalty10. Such heightened standard demanded a

deeming provision under the FUTP 2003.

35. The reliance on ‘expressio unius est exclusio alterius’ may not be

appropriate in this case instant as the intention of the regulation is

apparent in this case. Moreover, it has been well established that

10 SEBI (Stock Brokers and Sub-brokers) Regulations, 1992, Schedule II.

34

‘expressio unius est exclusio alterius’ is not a rule of law but a tool of

interpretation which must be cautiously applied.11 In light of the

above discussion, this rule of interpretation does not help the case of

the violators.

36. A crucial aspect which needs to be observed at this point is the

element of causation which is embedded under regulation 2(1)(c)

read with regulations 3 and 4. In order to establish the aforesaid

charges in this case, it is required by the SEBI to establish that the

harm was induced by the materialization of a risk that was not

disclosed because of the tippee’s fraudulent practice. Further the

charges under the FUTP 2003 needs to be established as per the

applicable standards rather than on mere conjectures and surmises.

37. It should be noted that the provisions of regulations 3 (a), (b),

(c), (d) and 4(1) are couched in general terms to cover diverse

situations and possibilities. Once a conclusion, that fraud has been

committed while dealing in securities, is arrived at, all these

provisions get attracted in a situation like the one under

11 Colquhoun v. Brooks, (1887) 19 Q.B.D. 400; Lowe v. Darling & Sons, (1906) 2 K. B. 772

35

consideration. We are not inclined to agree with the submission that

SEBI should have identified as to which particular provision of FUTP

2003 regulations has been violated. A pigeon-hole approach may not

be applicable in this case instant.

38. Before we conclude, it would be useful to have a look at

American jurisprudence which has developed around Title 17, Code

of Federal Regulations, Part 240, Rule 10b-5 (Prohibition of use of

manipulative or deceptive devices or contrivances with respect

to certain securities exempted from registration). It is to be noted

that much of Indian securities laws have similar provisions and a

brief survey of jurisprudence might be useful for the discussion

herein. The complexity of the subject we are dealing is reflected even

in the American jurisprudence as the U.S Supreme Court seems to

have accepted the aforesaid provision to be the most litigated ones.12

In David Carpenter, Kenneth P. Felis and R. Foster Winans, v.

United States13, the United States Supreme Court dealt with the

12 Securities and Exchange Commission vs. National Securities, Inc., et al., 393 U.S. 453 (1969)

‘Although section 10(b) and 10 b-5 may well be the most litigated provisions in the federal securities laws, this is the first time this Court has found it necessary to interpret them. We eneter the virgin territory cautiously…’

13 484 U.S. 19.

36

matter of fraud under section 10(b). In this case, the Petitioner, who

was a co-author in a Journal’s investment advice column, entered

into a deal with a stock broker wherein he provided pre-publication

information on the content of the column. Further the stockbroker

bought and sold shares based on such information and shared the

profits made therein with the Petitioner. The Court, while convicting

the Petitioner, elaborated the meaning of fraud in following manner –

We cannot accept petitioners' further

argument that Winans' conduct in

revealing prepublication information was

no more than a violation of workplace

rules and did not amount to fraudulent

activity that is proscribed by the mail

fraud statute. Sections 1341 and 1343

reach any scheme to deprive another of

money or property by means of false or

fraudulent pretenses, representations, or

promises. As we observed last Term in

McNally, the words “to defraud” in the

mail fraud statute have the “common

understanding” of “ ‘wronging one in his

property rights by dishonest methods or

schemes,’ and ‘usually signify the

37

deprivation of something of value by

trick, deceit, chicane or overreaching.’ ”

483 U.S., at 358, 107 S.Ct., at 2881

(quoting Hammerschmidt v. United States,

265 U.S. 182, 188, 44 S.Ct. 511, 512, 68

L.Ed. 968 (1924)). The concept of “fraud”

includes the act of embezzlement, which

is “ ‘the fraudulent appropriation to one's

own use of the money or goods entrusted

to one's care by another.’ ” Grin v. Shine,

187 U.S. 181, 189, 23 S.Ct. 98, 102, 47

L.Ed. 130 (1902).

Elaborating on the fiduciary relationship between the employee of a

firm to safeguard the confidential information owned by the firm, the

court observed as under-

The District Court found that Winans'

undertaking at the Journal was not to

reveal prepublication information about

his column, a promise that became a

sham when in violation of his duty he

passed along to his coconspirators

confidential information belonging to the

Journal, pursuant to an ongoing scheme

to share profits from trading in

38

anticipation of the “Heard” column's

impact on the stock market. In Snepp v.

United States, 444 U.S. 507, 515, n. 11,

100 S.Ct. 763, 768, n. 11, 62 L.Ed.2d

704 (1980) (per curiam), although a

decision grounded in the provisions of a

written trust agreement prohibiting the

unapproved use of confidential

Government information, we noted the

similar prohibitions of the common law,

that “even in the absence of a written

contract, an employee has a fiduciary

obligation to protect confidential

information obtained during the course of

his employment.” As the New York courts

have recognized: “It is well established, as

a general proposition, that a person who

acquires special knowledge or

information by virtue of a confidential or

fiduciary relationship with another is not

free to exploit that knowledge or

information for his own personal benefit

but must account to his principal for any

profits derived therefrom.” Diamond v.

Oreamuno, 24 N.Y.2d 494, 497, 301

N.Y.S.2d 78, 80, 248 N.E.2d 910, 912

39

(1969); see also Restatement (Second) of

Agency §§ 388, Comment c, 396(c) (1958).

We have little trouble in holding that the

conspiracy here to trade on the Journal's

confidential information is not outside

the reach of the mail and wire fraud

statutes, provided the other elements of

the offenses are satisfied. The Journal's

business information that it intended to

be kept confidential was its property; the

declaration to that effect in the employee

manual merely removed any doubts on

that score and made the finding of

specific intent to defraud that much

easier. Winans continued in the employ

of the Journal, appropriating its

confidential business information for his

own use, all the while pretending to

perform his duty of safeguarding it. In

fact, he told his editors twice about leaks

of confidential information not related to

the stock-trading scheme, 612 F.Supp.,

at 831, demonstrating both his

knowledge that the Journal viewed

40

information concerning the “Heard”

column as confidential and his deceit as

he played the role of a loyal employee.

39. In Vincent F. Chiarella v. United States14, the United States

Supreme Court was seized of the matter relating to securities fraud

under section 10b of the Securities Exchange Act, 1934. The

Petitioner therein was a printer of some corporate takeover bids.

Despite attempts by the companies to conceal the names of the

takeover targets, Chiarella was able to deduce, and he traded shares

of the companies he knew were involved. Consequently he was

convicted by the lower forum as he traded in target companies

without informing its shareholders of his knowledge of proposed

takeover. The Supreme Court while reversing his conviction,

observed as under-

“the Petitioner employee could not be

convicted on theory of failure to disclose

his knowledge to stockholders or target

companies as he was under no duty to

14 445 U.S. 222 (1980).

41

speak, in that he had no prior dealings

with the stockholders and was not their

agent or fiduciary and was not a person

in whom sellers had placed their trust

and confidence, but dealt with them only

through impersonal market

transactions.”

On the issue of “General Duty between all participants (Tippee’s), the

Court stated that:

“Formulation of a general duty between

all participants in market transactions for

forego actions based on material,

nonpublic information, so as to give rise

to liability under section 10(b) of

Securities Exchange Act for failure to

disclose, would depart radically from

established doctrine that a duty arises

from a specific relationship between two

parties and should not be undertaken

absent some explicit evidence of

congressional intent. Securities Exchange

Act of 1934, § 10(b) as amended 15

U.S.C.A. § 78j(b).”

42

40. Although excessive reliance on foreign jurisprudence may not

be necessary as we have starkly deviated in many aspects from

American jurisprudence, but we need to keep in mind the

developments which other countries have undertaken regarding this

issue.

41. Now we come back to the regulations 3 and 4 (1) which bars

persons from dealing in securities in a fraudulent manner or

indulging in unfair trade practice. Fairness in financial markets is

often expressed in terms of level playing field. A playing field may be

uneven because of varied reasons such as inequalities in information

etc. Possession of different information, which is a pervasive feature

of markets, may not always be objectionable. Indeed, investors who

invest resources in acquiring superior information are entitled to

exploit this advantage, thereby making markets more efficient. The

unequal possession of information is fraudulent only when the

information has been acquired in bad faith and thereby inducing an

inequitable result for others.

43

42. The law of confidentiality has a bearing on this case instant.

“Confidential information acquired or compiled by a corporation in

the course and conduct of its business is a species of property to

which the corporation has the exclusive right and benefit, and which

a court of equity will protect through the injunctive process or other

appropriate remedy.”15 The information of possible trades that the

company is going to undertake is the confidential information of the

company concerned, which it has absolute liberty to deal with.

Therefore, a person conveying confidential information to another

person (tippee) breaches his duty prescribed by law and if the

recipient of such information knows of the breach and trades, and

there is an inducement to bring about an inequitable result, then the

recipient tippee may be said to have committed the fraud.

43. Accordingly, non-intermediary front running may be brought

under the prohibition prescribed under regulations 3 and 4 (1), for

being fraudulent or unfair trade practice, provided that the

ingredients under those heads are satisfied as discussed above. From

15 3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986)

44

the above analysis, it is clear that in order to establish charges

against tippee, under regulations 3 (a), (b), (c) and (d) and 4 (1) of

FUTP 2003, one needs to prove that a person who had provided the

tip was under a duty to keep the non-public information under

confidence, further such breach of duty was known to the tippee and

he still trades thereby defrauding the person, whose orders were

front-runned, by inducing him to deal at the price he did.

44. Taking into consideration the facts and circumstances of the

case before us and the law laid down herein above and SEBI v.

Kishore R. Ajmera (Supra) can only lead to one conclusion that

concerned parties to the transaction were involved in an apparent

fraudulent practice violating market integrity. The parting of

information with regard to an imminent bulk purchase and the

subsequent transaction thereto are so intrinsically connected that no

other conclusion but one of joint liability of both the initiator of the

fraudulent practice and the other party who had knowingly aided in

the same is possible. Consequently, Civil Appeal Nos. 2595, 2596

and 2666 of 2013 are allowed. At the same time, for the same reason,

45

Civil Appeal Nos. 5829 of 2014 and 11195-11196 of 2014 are

dismissed.

............................J. (N. V. RAMANA)

NEW DELHI SEPTEMBER 20, 2017

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2595 OF 2013

SECURITIES AND EXCHANGE BOARD

OF INDIA ...APPELLANT(S)

VERSUS

KANAIYALAL BALDEVBHAI

PATEL ...RESPONDENT(S)

WITH

CIVIL APPEAL NO.2596 OF 2013

[S.E.B.I. VS. DIPAK PATEL]

CIVIL APPEAL NO.2666 OF 2013

[S.E.B.I. VS. SUJIT KARKERA & ORS.]

CIVIL APPEAL NO.5829 OF 2014

[POOJA MENGHANI VS. S.E.B.I.]

CIVIL APPEAL NOS. 11195-11196 OF 2014

[VIBHA SHARMA AND ANR. VS. S.E.B.I.]

J U D G M E N T

RANJAN GOGOI,J.

1. I have had the privilege of going

through the very erudite judgment of my

learned brother Ramana, J. I can only

2

agree with the trend of reasoning that my

learned brother has chosen to adopt to

arrive at his ultimate conclusions.

However, I am of the view that the present

case is capable of resolution within a

very narrow spectrum of law and on an

interpretation of the relevant provisions

of the Securities and Exchange Board of

India (Prohibition of Fraudulent and

Unfair Trade Practices Relating to

Securities Market) Regulations 2003

(hereinafter referred to as “2003

Regulations”). I, therefore, propose to

record my own views in the matter.

2. The relevant provisions of the

2003 Regulations which would require

consideration of this Court has been set

out in extenso by my learned brother and,

therefore, I need not burden this order

with a repetition of the same. All that I

3

consider necessary to point out is that it

is the provisions of Regulation 2(c),(3)

and (4) of the 2003 Regulations which

would require a consideration from the

limited stand point of whether the actions

attributable to the respondents in Appeal

Nos.2595 of 2013, 2596 of 2013 and 2666 of

2013 and appellants in Appeal Nos.5829 of

2014 and 11195-11196 of 2014 come within

the four corners of fraudulent or unfair

trade practice as contemplated by the

aforesaid provisions of the 2003

Regulations.

3. The gravamen of the allegations

which can be culled out from the facts in

Civil Appeal No.2595 of 2013 is that one

Dipak Patel (respondent in Civil Appeal

No.2596 of 2013), who was holding a

position of trust and confidence in one

M/s Passport India Investment (Mauritius)

4

Limited (hereinafter referred to as “M/s

Passport India”), was privy to

privileged/confidential information that

M/s Passport India would be making

substantial investments in particular

scrips through the stock exchanges.

Dipak Patel is alleged to have parted the

said information to his cousins Kanaiyalal

Baldevbhai Patel [respondent in Civil

Appeal No.2595 of 2013] and Anandkumar

Baldevbhai Patel [respondent in Civil

Appeal No.2594 of 2013 (disposed of on 5th

April, 2017)] who on various dates placed

orders for purchase of scrips a few

minutes before the bulk orders in respect

of the same scrips were placed on behalf

of M/s Passport India by Dipak Patel. The

bulk order/orders, because of the sheer

volume, naturally had the effect of

pushing up the prices of the particular

scrips and no sooner the prices had

5

increased, Kanaiyalal Baldevhai Patel and

Anandkumar Baldevbhai Patel had traded the

said scrips thereby earning substantial

profits. The large volume of the shares

traded in the above manner; the several

number of days on which such trading took

place; and the close proximity of time

between the sale and purchase of the

shares i.e. before and after the bulk

purchases, were alleged by the appellant -

Securities and Exchange Board of India

(“SEBI” for short) to be amounting to

fraudulent or unfair trade practice

warranting imposition of penalty and

visiting the offending individuals with

other penal consequences.

4. The adjudicating authority held the

respondents liable. The Securities

Appellate Tribunal (“Appellate Tribunal”

for short) before whom appeals were filed

6

by the aggrieved persons (respondents

herein) interfered with the orders passed

by the adjudicating authority primarily on

the ground that on a reading of Regulation

2(c),(3) and Regulation(4) of the 2003

Regulations it does not transpire that the

acts attributable amount to fraudulent or

unfair trade practice warranting the

findings recorded by the Adjudicating

authority and the imposition of penalty in

question on that basis.

5. If Regulation 2(c) of the 2003 was

to be dissected and analyzed it is clear

that any act, expression, omission or

concealment committed, whether in a

deceitful manner or not, by any person

while dealing in securities to induce

another person to deal in securities would

amount to a fraudulent act. The emphasis

in the definition in Regulation 2(c) of

7

the 2003 Regulations is not, therefore, of

whether the act, expression, omission or

concealment has been committed in a

deceitful manner but whether such act,

expression, omission or concealment

has/had the effect of inducing another

person to deal in securities.

6. The definition of 'fraud', which

is an inclusive definition and, therefore,

has to be understood to be broad and

expansive, contemplates even an action or

omission, as may be committed, even

without any deceit if such act or omission

has the effect of inducing another person

to deal in securities. Certainly, the

definition expands beyond what can be

normally understood to be a 'fraudulent

act' or a conduct amounting to 'fraud'.

The emphasis is on the act of inducement

and the scrutiny must, therefore, be on

8

the meaning that must be attributed to the

word “induce”.

7. The dictionary meaning of the word

“induced” may now be taken note of.

BLACK’S LAW DICTIONARY, EIGHTH

EDITION, defines ‘inducement’ as “the

act or process of enticing or

persuading another person to take a

certain course of action.”

Merriam-Webster Dictionary

defines ‘inducement’ as “a motive or

consideration that leads one to action

or to additional or more effective

actions.”

8. A person can be said to have induced

another person to act in a particular way or

not to act in a particular way if on the basis

of facts and statements made by the first

person the second person commits an act or

omits to perform any particular act. The test

to determine whether the second person had

been induced to act in the manner he did or

not to act in the manner that he proposed, is

9

whether but for the representation of the

facts made by the first person, the latter

would not have acted in the manner he did.

This is also how the word inducement is

understood in criminal law. The difference

between inducement in criminal law and the

wider meaning thereof as in the present case,

is that to make inducement an offence the

intention behind the representation or

misrepresentation of facts must be dishonest

whereas in the latter category of cases like

the present the element of dishonesty need not

be present or proved and established to be

present. In the latter category of cases, a

mere inference, rather than proof, that the

person induced would not have acted in the

manner that he did but for the inducement is

sufficient. No element of dishonesty or bad

faith in the making of the inducement would be

required.

9. While Regulation 3(a) of the 2003

Regulations prohibits a person to buy,

10

sell or otherwise deal in securities in a

fraudulent manner, Regulation 4 declares

that no person shall indulge in a

fraudulent or an unfair trade practice in

securities. Sub-regulation (2) of

Regulation 4 enumerates different

situations in which dealing in securities

can be deemed to be a fraudulent or an

unfair trade practice. Regulation 4 being

without prejudice to the provisions of

Regulation 3 of the 2003 Regulations would

operate on its own without being

circumscribed in any manner by what is

contained in Regulation 3.

10. Adverting to the facts of the

present case, if the information with

regard to acquisition of shares by M/s

Passport India was parted with by Dipak

Patel to Kanaiyalal Baldevbhai Patel and

Anandkumar Baldevbhai Patel and the latter

11

had transacted in huge volume of shares of

the particular company/scrip mentioned by

Dipak Patel a little while before the bulk

order was placed by M/s. Passport India

and the said persons had sold the same a

short-while later at an increased price,

such increase being a natural consequence

of a huge investment made in the

particular scrip by M/s Passport India,

surely, it can be held that by the conduct

of Dipak Patel, Kanaiyalal Baldevbhai

Patel and Anandkumar Baldevbhai Patel were

induced to deal in securities. A natural

and logical inference that would follow is

that the aforesaid two latter persons

would not have entered into the

transactions in question, had it not been

for the information parted with by Dipak

Patel. The track record of earlier

trading of the concerned two persons does

not indicate trading in such huge volumes

12

in their normal course of business. Such

an inference would be a permissible mode

of arriving at a conclusion with regard to

the liability, as held by this Court in

Securities and Exchange Board of India

Vs. Kishore R. Ajmera1 referred to by my

learned brother Ramana, J. The volume;

the nature of the trading and the timing

of the transactions in question can leave

no manner of doubt that Kanaiyalal

Baldevbhai Patel and Anandkumar Baldevbhai

Patel had acted in connivance with Dipak

Patel to encash the benefit of the

information parted with by Dipak Patel to

them and, therefore, they are parties to

the 'fraud' committed by Dipak Patel

having aided and abetted the same.

11. If the parting of information by

Dipak Patel to Kanaiyalal Baldevbhai Patel

1 (2016) 6 SCC 368

13

and Anandkumar Baldevbhai Patel amounts to

'fraud' within the meaning of Regulation

2(c) of the 2003 Regulations, we do not

see as to how the transactions entered

into by Kanaiyalal Baldevbhai Patel and

M/s Passport India through Dipak Patel

both in regard to purchase and sale of the

shares would not be hit by the provisions

of Regulation 3(a) and Regulation 4(1) of

the 2003 Regulations in question.

12. Coupled with the above, is the

fact, the said conduct can also be

construed to be an act of unfair trade

practice, which though not a defined

expression, has to be understood

comprehensively to include any act beyond

a fair conduct of business including the

business in sale and purchase of

securities. However the said question, as

suggested by my learned Brother, Ramana,

14

J. is being kept open for a decision in a

more appropriate occasion as the

resolution required presently can be made

irrespective of a decision on the said

question.

13. On the conclusions that has been

reached, as indicated above, whether the

deemed provisions contained in Regulation

4(2)(q) of the 2003 Regulations would be

attracted to the facts of the present case

and the scope, effect and contours of the

explanation to Regulation 4 inserted by

Securities and Exchange Board of India

(Prohibition of Fraudulent and Unfair

Trade Practices relating to Securities

Market) (Amendment) Regulations, 2013

would hardly require any specific notice

of the Court.

14. To attract the rigor of

Regulations 3 and 4 of the 2003

15

Regulations, mens rea is not an

indispensable requirement and the correct

test is one of preponderance of

probabilities. Merely because the

operation of the aforesaid two provisions

of the 2003 Regulations invite penal

consequences on the defaulters, proof

beyond reasonable doubt as held by this

Court in Securities and Exchange Board of

India Vs. Kishore R. Ajmera(supra) is not

an indispensable requirement. The

inferential conclusion from the proved and

admitted facts, so long the same are

reasonable and can be legitimately arrived

at on a consideration of the totality of

the materials, would be permissible and

legally justified. Having regard to the

facts of the present cases i.e. the volume

of shares sold and purchased; the

proximity of time between the transactions

of sale and purchase and the repeated

16

nature of transactions on different dates,

in my considered view, would irresistibly

lead to an inference that the conduct of

the respondents in Appeal Nos.2595 of

2013, 2596 of 2013 and 2666 of 2013 and

appellants in Appeal Nos.5829 of 2014 and

11195-11196 of 2014 were in breach of the

code of business integrity in the

securities market. The consequences for

such breach including penal consequences

under the provisions of Section 15HA of

the SEBI Act must visit the concerned

defaulters for which reason the orders

passed by the Appellate Tribunal impugned

in Civil Appeal Nos.2595 of 2013, 2596 of

2013 and 2666 of 2013 are set aside and

the findings recorded and the penalty

imposed by the Adjudicating Officer are

restored.

15. Consequently and in view of the

17

above Civil Appeal Nos. 5829 of 2014 and

11195-11196 of 2014 are dismissed and

Civil Appeal Nos. 2595, 2596 and 2666 of

2013 are allowed.

..............,J.

(RANJAN GOGOI)

NEW DELHI

SEPTEMBER 20, 2017

POOJA MENGHANI Vs SEBI