Securities Appellate Tribunal
Amaresh Pathak & Ors. vs Sebi on 16 February, 2021
Author: Tarun Agarwala
Bench: Tarun Agarwala
BEFORE THE SECURITIES APPELLATE TRIBUNAL
MUMBAI
Order Reserved on: 4.1.2021
Date of Decision:16.2.2021
Appeal No. 332 of 2020
1.Amaresh Pathak 258A, Parui Paka Road, Near Netaji Sangha Club, Kolkata - 700 061.
2. Samaresh Pathak 258A, Parui Paka Road, Near Netaji Sangha Club, Kolkata - 700 061.
3. Susmita Pathak 258A, Parui Paka Road, Near Netaji Sangha Club, Kolkata - 700 061. ...Appellants Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Saurabh Bachhawat, Advocate i/b. Harsh Kesharia, Advocate for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent. 2
With Appeal No. 345 of 2020 Pradip Basu Vill Chauli Po Ghatal Midnapore, West Bengal - 711 202. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Saurabh Bachhawat, Advocate i/b. Harsh Kesharia, Advocate for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No. 314 of 2020 Sonu R/o H.No.Wz-G-42, Wz Block, Naraina Villa, Delhi - 110028. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent 3 Mr. Amit Gupta, Advocate i/b. AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No. 322 of 2020 Ramesh Baheti R/o A-18, Dena Apartment, Sector 13, Rohini, New Delhi- 110085. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Amit Gupta, Advocate i/b. AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No. 350 of 2020
1. Kusum Devi Baid Flat No.D-502, Ashoka Vihar, 317, G T Road, Belurmath, Howrah, 4 West Bengal-711 202.
2. Kamal Baid Flat No.D-502, Ashoka Vihar, 317, G T Road, Belurmath, Howrah, ...Appellants West Bengal-711 202.
Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Saurabh Bachhawat, Advocate i/b. Harsh Kesharia, Advocate for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No.353 of 2020 Dev Kishan Mal R/o 266, Bharat Apartment, Sector 13, Rohini, Delhi-110085. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent 5 Mr. Amit Gupta, Advocate i/b. AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No.355 of 2020 Kuldeep Singh R/o House No.214, Village Mangolpur, New Delhi - 110083. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Amit Gupta, Advocate i/b. AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No.367 of 2020 Narayan Dass Rathi R/o 351, Maheshwar Mohalla, Outside Jassusar Gate, Banglanagar, Bikaner, 6 Rajasthan - 334004. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Amit Gupta, Advocate i/b. AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No.368 of 2020 Davender Kumar R/o 1240, Mangol Puri, North West Delhi, Delhi - 110083. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Amit Gupta, Advocate i/b. AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent. 7
With Appeal No.382 of 2020 Vishnu Khaitan A 502, Vidhi Apt. Opp.Powai, Petrol Pump, Ulhasnagar, Ulhasnagar, Maharashtra - 421004. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Jaikishan Lakhwani, Advocate i/b. J L Legal Advisors for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No.383 of 2020 Rachana Govind Attal 604, Devi Darshan Tower, Gaon Devi Road, Near Kasturi Hospital, Mumbai - 401101. ...Appellant Versus Securities and Exchange Board of India 8 SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Jaikishan Lakhwani, Advocate i/b. J L Legal Advisors for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners With Appeal No.387 of 2020 Debashis Sur Chowdhury Block L/V, Flat No.3, Govt. Housing Estate, O D R C, Kolkata, West Bengal - 700038. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Jaikishan Lakhwani, Advocate i/b. J L Legal Advisors for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners 9 With Appeal No.388 of 2020 Benu Mimani Jeewanram Chetandas, H P Pump, Burdwan Road, Siliguri, West, Bengal - 734404. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Jaikishan Lakhwani, Advocate i/b J L Legal Advisors for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b Vidhii Partners With Appeal No.407 of 2020 Akhileshwar Kumar Mishra R/o 5/3/16 3rd Floor, Geeta Colony, Ajit Nagar, East Delhi-110031. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, 10 Bandra (E), Mumbai 400051. ...Respondent Mr. Amit Gupta, Advocate i/b. AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
With Appeal No.421 of 2020 Rupesh Kumar Srivastava R/o C/o Daya Shankar, Flat no.404, Tower 15, Nirala Estate, Greater Noida, Surajpur, Gautam Budh Nagar, UP 201306. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Amit Gupta, Advocate i/b AGKM Corpus Juris LLP for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b Vidhii Partners for the Respondent.
With Misc. Application No. 414 of 2020 11 (Exemption from filing certified copy) And Appeal No. 425 of 2020
1. Pawan Somani
2. Parinay Somani Jai Hanuman Estate 2nd Floor, 4 Janata Sarani, Hindi Motor, Hooghly (W.B.) - 712 233. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Kunal Katariya, Advocate i/b Harsh Keshariya, Advocate for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b Vidhii Partners for the Respondent.
With
Appeal No. 410 of 2020
Sunil Singhal
Kumher Gate, Pratap Colony,
Bharatpur (Raj). ...Appellant
Versus
Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, 12 Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Bharat B. Merchant, Advocate with Mr. Nadeem Shama, Advocate i/b. Thakordas & Madgavkar and Mr. Hari Om Maheshwari, Authorised Representative for the Appellant.
Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b Vidhii Partners for the Respondent.
With Appeal No. 519 of 2020 Shalini Agarwal B-104, Chintamani Apartment, RNP Park, Bhayander (st) 401 105. ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Saurabh Bachhawat, Advocate i/b. Ms. Yashvi Panchal, Advocate for the Appellant. Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b Vidhii Partners for the Respondent.
With Appeal No. 520 of 2020 Janardan Rama Bhunesar 13 Room no.B-27, Nehru Nagar, Station Road, Bhayander West -401 101 ...Appellant Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Saurabh Bachhawat, Advocate i/b Ms. Yashvi Panchal, Advocate for the Appellant. Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b Vidhii Partners for the Respondent.
With Appeal No. 521 of 2020
1. Paras Vinod Jain
2. Ranju Devi Jain
3. Shilpa Jain
4. Vinodkumar Chotmal Jain C-110 Anurag Apartment, RNP Park, Bhayandar (East) - 401 105. ...Appellants Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4, "G" Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051. ...Respondent Mr. Saurabh Bachhawat, Advocate i/b. Ms. Yashvi Panchal, Advocate for the Appellant. 14 Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent. CORAM: Justice Tarun Agarwala, Presiding Officer Dr. C.K.G. Nair, Member Justice M.T. Joshi, Judicial Member Per : Justice Tarun Agarwala, Presiding Officer
1. All the appeals are against a common order and raises the same issue. Accordingly all the appeals are being decided together. By an order dated 9th January, 2020 the Adjudicating Officer („AO‟ for short) has passed an order against 29 entities imposing a cumulative penalty of Rs.1,83,00,000 against the appellants for violation of Regulations 3 and 4 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 „PFUTP Regulations, 2003).
2. The facts leading to the filing of the present appeal is, that the investigation in the scrip of 15 Dhanleela Investments and Trading Company Ltd. was conducted for the period 26th February, 2013 to 2nd March, 2015. It was found that the trading in the scrip was suspended since 2006 but was revoked in April, 2012. Thereafter, the Company issued bonus shares in February, 2013. At that time the prevailing price was Rs.17.50 which rose to Rs.427.85 in October, 2013. The show cause notice alleged that the appellants traded on 82 days totaling 298 trades and that the appellants held sizeable quantities of shares but sold limited shares though large orders were pending on the platform of the stock exchange. It was alleged that the trading pattern was not genuine and the appellant was instrumental in increasing the price of the scrip. It was also alleged that the noticee no.29 had evolved a scheme to jack up the price and sold certain number of shares to other entities through off market transactions who in turn sold the shares to the appellant. 16
3. The stand of the appellant is, that they traded in miniscule quantities as a seller and that they have no connection with the buyer. It was also contended that there is no collusion with the counter party and that the buy orders were already in existence when the appellants placed their sell orders. It was contended that most of the appellants had no connection with noticee no.28 or notice no.29 and some of the appellants had a limited connection of buying certain shares through an off market transaction. Other than that there was no connection.
4. The AO while passing the order of penalty found that miniscule shares were being sold by the appellants when there was a demand for more shares and that the appellants had a substantive holding in the shares. The AO further found that a prudent investor would have sold the entire shares especially when the price quoted was above the LTP and there was no reason for the off market transfers to have taken place at a price much 17 lower than the LTP unless the motive was to increase the price of the scrip. The AO thus came to the conclusion that the appellants were not genuine sellers and taking shelter of the decision of the Supreme Court in SEBI vs. Kishore R. Ajmera (2016) 6 SCC 366 held that the trading pattern created a misleading appearance which amounted to manipulation in the price of scrip and, therefore, violative of Regulations 3 and 4 of PFUTP Regulations. The AO also found that the appellants failed to give any plausible explanation as to why miniscule trades were being made.
5. We have heard Mr. Saurabh Bachhawat, Advocate assisted by Mr. Amit Gupta and Mr. Jaikishan Lakhwani, Advocates for the Appellants and Mr. Vishal Kanade, Advocate with Ms. Nidhi Singh, Ms. Kinjal Bhatt and Mr. Hersh Choudhary, Advocates i/b. Vidhii Partners for the Respondent.
6. The grounds urged is, that there is an inordinate delay in the issuance of the show cause notice. The 18 finding that the appellants had violated Regulations 3 and 4 of the PFUTP Regulations, 2003 is patently erroneous since the appellant alone cannot be penalized without there being collusion with the alleged buyer. In the instant case, there is neither any charge nor any finding that the appellant had colluded with the buyer. It was further contended that miniscule trades were executed. It was contended that in the case of Amaresh Pathak only 12 trades were executed wherein only 2 trades contributed to the positive LTP and the remaining did not and whereas the appellant has earned only a few thousands of rupees for which the penalty has been imposed. The learned counsel has relied on the decision of this Tribunal in Appeal no.97 of 2019 Nishith M. Shah HUF and Appeal no.222 of 2020 Rajesh Jivan Patel.
7. On the other hand the learned counsel for the respondent laid stress that in the peculiar facts of the present case the ratio of the decision of Nishith M. 19 Shah HUF and Rajesh Jivan Patel is distinguishable and is therefore not applicable. The learned counsel placed reliance on a decision in Jaiprakash Bohra Appeal no.162 of 2019. It was contended that noticee no.28 had planned a scheme by which certain shares were transferred to these entities namely the appellants who in turn sold miniscule quantities thereby artificially increasing the price of the scrip.
8. Having heard the learned counsel for the parties at some length we are of the opinion that the controversy involved in this case is squarely covered in Nishith Shah case and Rajesh Jivan Patel and, consequently, the impugned order cannot be sustained. In Nishith Shah the Tribunal held :-
"4. We have heard Shri Saurabh Bachhawat, the learned counsel for the appellant and Shri Kumar Desai, the learned counsel for the respondent SEBI at some length. We are of the opinion that the impugned order cannot be sustained for the following reasons:-
"(a) The investigative reports nor the WTM or the AO found any connection between the buyer and the seller. We also find that neither in the 20 investigative report nor in the impugned order any connection has been found between the appellant with the promoters/directors of the Company. Thus, no causal connection has been established.
(b) The investigative report finds that no adverse inference can be drawn against the buyer merely because the buyer had placed buy orders above LTP. On this basis, the buyer was exonerated from the charge of manipulation in the price of the scrip when admittedly the buyer was placing buy orders above the LTP.
(c) Buy orders were placed at 9.15 hrs and sell orders were placed during the course of the day but not immediately after the buy orders nor the sell orders of the appellants were placed before the buy orders.
(d) There is no finding that the appellant has indulged in fraudulent or unfair trade practices in securities.
(e) Selling miniscule amount of shares by itself is not illegal nor manipulative nor violative of Regulation 3 and 4 of the PFUTP Regulations unless collusion with others is found.
(f) Allegation that the appellant has contributed to the LTP cannot be upheld in the absence of any collusion with the buyer or promoter/director of the Company. One has to establish a connection between a buyer and with the seller in order to infer a manipulation in the price of the scrip.
(g) The authorities have misread and misapplied the decision of the Supreme Court in Ajmera's case 21 (supra). In this regard Paragraph 27 of the judgment is extracted here under:-
"27. Let us apply the aforesaid test to the facts of the present cases before us wherein admittedly there is no direct evidence forthcoming. The first relevant fact that has to be taken note of is that the scrips in which trading had been done were of illiquid scrips meaning thereby that such scrips though listed in the Bombay Stock Exchange were not a matter of everyday buy and sell transactions. While it is correct that trading in such illiquid scrips is per se not impermissible, yet, voluminous trading over a period of time in such scrips is a fact that should attract the attention of a vigilant trader engaged/engaging in such trades. The above would stand fortified by the note of caution issued by the Bombay Stock Exchange in the form of a notice/memorandum alerting its members with regard to the necessity of exercising care and caution in case of high volume of trading in illiquid scrips, as already noted."
In order to apply the aforesaid test, the facts of the present case is, that there is no direct evidence of collusion between the appellant as a seller with that of the buyer. There is no finding that the appellant was known to the directors or promoters of the Company.
Since no direct evidence is forthcoming we have to see the indirect connection which is that the appellant was selling small quantities of scrips. Trading in small quantities in scrips is per se not impermissible as held in Ajmera's case (supra). If trading in miniscule amount leads to an increase in 22 the price of the scrips one can presume or infer that the trading is manipulative but such trading cannot happen unilaterally. There must be evidence to show collusion between the buyer and the seller. In the instant case there is none. The principle of preponderance of probability cannot be exercised in the absence of any connection between the seller and the buyer.
(h) The charge that the appellant had contributed to the LTP as a seller which resulted in the manipulation in the price of the scrips cannot be sustained in the light of the glaring fact that the same charge against the buyer had been dropped.
9. In the instant case, we find that there is no connection between the buyer and the seller. It is settled law that the charge of raising the price artificially has to be established without which the charge of collusion between the buyer and the seller cannot be proved.
10. In the absence of any finding of collusion between the buyer and the seller the charge of collusion and/or manipulation in the price of scrip cannot be sustained since it has not been proved. We also find that the buyer had placed the order above the LTP and, therefore, was increasing the price. The buy orders 23 had been on the stock exchange platform for a period of time and only matched when the appellants sold their scrip. The appellant alone therefore cannot be charged for manipulating the price especially when the buyer have not been prosecuted by the respondent. We find that there is no connection established between the appellants with the shareholders and promoters of the Company.
11. In addition to the above when a person enters into a transaction in securities with the intention to artificially raise the price, he thereby automatically induces the innocent investors in the market to buy/sell the stocks. The buyer or the seller is invariably influenced by the price of the stocks and if that is manipulated the person doing so is necessarily influencing the decision of the buyer/seller thereby inducing him to buy or sell. This is what Regulation 4 of the PFUTP Regulation speaks of. Inducement to any person to buy or sell securities leads to manipulation in the price of the scrip. If the factum 24 of inducement is established, it will necessarily follow that a fraud has been played and there has been a manipulation.
12. Taking the aforesaid as a consideration the inducement in the instant case has been caused by the buyer. The buyer has placed the buy order above the LTP. The buyer is inducing the seller to sell at a higher price. The buyer is thus manipulating the price and is playing a fraud on the system.
13. There is no direct evidence of collusion between the appellant and the buyer. The only indirect evidence is that the appellants have sold miniscule quantities leading to an increase in the price of the scrip. One can infer manipulation but such trading cannot happen unilaterally. There must be evidence to show collusion between the buyer and the seller. The principle of preponderance of probability cannot be exercised in the absence of any connection between the seller and 25 the buyer. This is what the Supreme Court has held in Ajmera‟s case.
14. In view of the aforesaid, the impugned order cannot be sustained and is quashed in so far as the appellants are concerned. All the appeals are allowed with no order as to costs. Misc. Application no.414 of 2020 is accordingly disposed of.
Justice Tarun Agarwala Presiding Officer Dr. C.K.G. Nair Member 16.2.2021 RHN Per: Justice M.T. Joshi, Judicial Member
15. I have had the honour to peruse the draft of the order prepared by the Hon‟ble Presiding Officer. However with due respect, I am unable to agree with 26 the reasons recorded therein. I therefore propose to deliver my separate judgment in the appeals.
16. The draft and more particularly Paragraph no 8 to 12 of it would show that relying on the reasons recorded in the case of Nishit Shah HUF, appeal no.97 of 2019 and Rajesh Jeevan Patel, appeal no.222 of 2020, the appeals are allowed on two grounds. Firstly no connection between the buyers with the present appellants majority of whom are the sellers is established. Secondly when a buyer put an order for purchase of shares for high prices it is who induces the sellers, but he is not prosecuted by the respondent SEBI. It is further reasoned therein that no connection between noticee no.28 i.e. appellant Narayan Dass Rathi (who in off market transaction sold shares to other notices either directly or indirectly) either with other appellants or with the promoter/company in question is found. It is held in the draft order that in the absence of the material to 27 connect the appellant with the buyer the impugned order of SEBI cannot be upheld.
17. It is trite to say that the standard to prove the charge in the case is of preponderance of probabilities and not of a proof beyond reasonable doubt. The real test however lies in the application of the standard in a given case. For that purpose this Tribunal which is final fact finding forum is required to appreciate all the relevant facts, probabilities and circumstances found from the record. Upon examining this material, we shall have to prepare rather a balance sheet of the proved/admitted material and find on which side, the probability lie more. This exercise is explained more precisely by the then Hon‟ble Justice (later on Chief Justice of India) Shri Y. V. Chandrachud in the case of Narayan Ganesh Dastane ... Vrs .. Sucheta Narayan Dastane (A.I.R. 1975 Supreme Court 1534) as under :-
28
"The normal rule which governs civil proceedings is that a fact is said to be established if it is proved by preponderance of probabilities.
Under s.3 of the Evidence Act a act is said to be proved when the court either believes it to exist or if considers its existence so probable that prudent man ought, in the circumstances, to act upon the supposition that it exists. The first step in this process is to fix the probabilities. the second to weigh them.
The impossible is weeded out in the first stage, the improbable in the second. Within the wide range of probabilities, the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies."
While some judges try to formulize this exercise as "of finding 51% probabilities", to borrow the inimitable Lord Denning‟s terminology from Miller ...Vrs... Minister of Pensions (1947) 2, ALL ER 372 it would be simply as "more probable than not". 29
18. Given the above principle, in my view the present appeal cannot be decided one way or the other merely on the sole axis of presence or absence of connection/nexus between the buyer and seller or promoters/the Company, or non-prosecution of the buyer, though no doubt, these facts would be of considerable importance in weighing the probabilities. While in the case of Nishit Shah (cited in the judgment above) and many more, the factum of non- connection was held fatal to the SEBI‟s case, in cases like of Ms. Sunita Gupta ...Vrs.....SEBI, Appeal no. 269 of 2018, decided by this Tribunal on 19th September 2019 and Mrs. Bharati Goyal .....Vrs.......SEBI, Appeal no. 159 of 2020, decided by this Tribunal on 25th August 2020, this Tribunal upon weighing all the facts and probabilities on record ruled that the absence of the connection/nexus would not be fatal to the charges of manipulative/fraudulent trades levelled by SEBI and the appeals were dismissed. In 30 those cases also either no connection between the trading parties was established or the counter parties were not prosecuted.
While the Hon‟ble Presiding officer in the draft order has quoted the observations made by this Tribunal in the case of Nishith Shah, respondent SEBI pointed out that in the case of Nishith Shah the orders of Whole Time Member restraining the appellants from trading in securities as well the order of the Adjudicating officer imposing the penalty both were challenged, in the present cases however the order of the Whole Time Member dated 18th March 2020 which is on the same set of facts is not challenged. It was submitted that since the finding of facts has now attained the finality, the order of Adjudicating Officer‟s order cannot be challenged. Besides this Tribunal in the case of Mrs Bharati Goyal & other appeals ... Vrs.... SEBI Appeal no. 159 of 2020 decided on 25th August 2020 by this 31 Tribunal, observed that failure to establish connection with the promoters/directors of the Company in question or the counterparty to the trade would not absolve the entity who traded in irrational manner in miniscule quantity for higher price given the fact that the share was not a miracle share.
We can burden this judgment with many more cases of the like nature, but since all these cases either this way or the other were decided on the facts of the respective cases wherein the factum of presence or absence of connection/nexus was highlighted, it is unnecessary to put the list of those cases. The issue therefore is not whether there is a legal requirement of establishment of connection/nexus or prosecution of the counterparty to the trades, but inter alia, whether in a given case on facts these factors assumes greater importance.
19. Though in view of the fact that the order of Whole Time Member restraining the present appellants 32 from trading in the securities is not challenged and therefore the findings therein has attained finality, in view of the draft order of the Honble Presiding Officer on merit I alternatively propose to deal with the case on merit.
In view of the above proposition, it is necessary to appreciate all the proved/admitted material on record of the present case, to weed out firstly the impossible, improbable secondly and peruse the material through the lens of a prudent man. If this exercise brings us to conclude that case of SEBI is more probable, the charge should be sustained, else the appeals will have to be allowed. To reiterate the present case poses before us the task of appreciation of evidence simplicter and no more, which I propose to undertake hereinafter.
20. Admitted facts of the case are that the trading in the scrip of Dhanleela Investment and Trading Company Limited (hereinafter referred to as 33 „Dhanleela‟) was suspended for a period between 11th September, 2006 to 15th April, 2012. The same was revoked on 16th April, 2012. Thereafter except one trade on 24th April, 2012 at a price of Rs.26 there was no trade on the scrip till 26th February, 2013. On that date the price of the scrip opened at Rs.17.50. Within a period of 8 months i.e. till 9th October 2013 it rose to Rs.427.85. This period is termed by respondent SEBI as Patch I of investigation.
The second patch of investigation is from 10th October 2013 to th of December 2013, upon split declaration of shares in the ratio of 5:1. On 10th October the price had nosedived to Rs. 87.25 but in this period again soared to Rs. 213.95. In the last patch it closed on Rs. 90.35 on 2nd March 2015. So far as performance of Dhanleela is concerned it had earned net profits of Rs.32 lakhs in the year 2012- 13, Rs.52 lakhs in 2013-14 and Rs.13 lakhs in 2014-15. 34
Thus, as against the dismal performance of the company during both the patches, there remained exponential upward swing in the price of the share.
21. Prior to this period except noticee no 28- appellant Narayan Dass Rathi none of the appellants or other noticees (Noticees Sanjay Kumar Shrivastav and Tapan Kumar Dey are not before us) held a single share of the company. On 25th February, 2013 he - Appellant Narayan Das Rathi transferred in off market transactions 25 shares each to the noticees/appellant nos.12 (Appellant Ramesh Baheti), 16 (Appellant Kuldeep Singh) and 19 (Appellant Dev Kishan Mal) alongwith other noticees, and 2350 shares to noticee/appellant no.29 (Appellant Devinder Kumar). Appellant in appeal no.383 of 2020. He in turn transferred shares to the appellants in appeal no.388 of 2020 and 382 of 2020 and others.
22. It is pertinent to note that in these off market transaction the seller sold those shares to the above 35 noticees or the appellants for lower price though buy orders for higher price were pending on the stock exchange platform.
23. It is further pertinent to note that appellant Narayan Dass Rathi i.e. noticee no.29 in his reply to the show cause notice did not put forward any explanation as to why the shares purchased by him at the rate of Rs.55.60 per share were sold by him for Rs.50 each in off market transaction. On the stock exchange platform already a buy order at the rate of Rs.55.60 was pending. Regarding rest of the off market transfer similar pattern is discerned.
24. The explanation of the transferors is that they were required to sell the shares in off market in view of urgency of fund. However on the stock exchange platform already buy orders for a higher price were pending.
25. So far as the appellant who had purchased shares at a lower price from the above appellants, admittedly 36 they had later on put 1 to 10 shares for sale on the stock exchange platform though buy orders for more share for higher price were pending and further though they had purchased the shares in off market transaction as detailed above for a lower price. They could not explain the reasons for the same.
26. The percentage of the trade of the appellant along with the details are tabulated in summary manner regarding these patches of investigation separately in the impugned order as under:
Table 5: Summary of Sell Trades ( I Patch of Investigation) Sl. Seller Name Total No. of Total Sell Trade Positive % of No.of No. No.of trades no.of order Quanti LTP positive shares trades (LTP> order qty ty contributiLTP to held
0) s range on (Rs.) Total before Market these positive trades.
LTP
1. Paras Vinod Jain 23 5 23 2.6 100 26.05 6.35% 100
2. Ranju Devi Jain 23 4 23 1-10 100 23.95 5.84% 1000
3. Rachana Govind 20 5 19 3-20 95 22.40 5.46% 100 Attal
4. Shilpa Jain 24 4 24 2-6 95 20.95 5.11% 100
5. Benu Mimani 16 3 15 5-10 95 15.10 3.68% 100
6. Shalini Agarwal 24 4 24 2-9 95 12.35 3.01% 100
7. Akhileshwar 2 2 2 2-4 6 12.00 2.92% 25 Kumar Mishra
8. Sonu 2 2 2 2-3 5 11.55 2.81% 25
9. Sanjay Kumar 2 2 2 4-4 8 11.00 2.68% 25 Sharma
10. Sunil Singhal 2 2 2 2-5 7 10.75 2.62% 25
11. Amaresh Pathak 11 2 10 7-11 95 10.55 2.57% 100 37
12. Ramesh Baheti 7 7 7 2-4 20 10.20 2.49% 25
13. Rupesh Kumar 2 2 2 3-5 8 10.15 2.47% 25 Srivastava
14. Vinodkumar 19 3 19 3-8 95 9.70 2.36% 1000 Chotamal Jain
15. Parinay Somani 6 2 5 8-29 95 9.30 2.27% 100
16. Kuldeep Singh 7 7 7 1-4 20 9.10 2.22% 25
17. Janardhan Rama 11 2 11 6-13 95 8.35 2.03% 100 Bhunesar
18. Pawan Somani 8 2 7 7-32 95 8.30 2.02% 25
19. Dev Kishan Mal 7 6 7 1-5 25 8.20 2.00% 100
20. Pradip Basu 5 1 5 7-25 95 5.85 1.43% 100
21. Debashis Sur 10 2 10 7-10 95 5.70 1.39% 100 Chowdhury
22. Tapan Kumar Dey 10 2 10 6-11 95 5.45 1.33% 100
23. Kamal Baid 6 2 6 7-25 95 5.20 1.27% 100
24. Susmita Pathak 10 2 10 7-10 95 4.90 1.19% 100
25. Vishnu Khaitan 25 2 25 3-5 95 4.90 1.19% 100
26. Samaresh Pathak 10 2 10 7-10 95 4.65 1.13% 100
27. Kusum Devi Baid 6 2 6 8-25 95 4.60 1.12% Total 298 81 293 1911 291.20 70.96% Table 8: Summary of Sell Trades of 11 Noticees ( II patch of Investigation ) Sl. Seller Name Total No. of Total Sell Trade Positive % of No.of No. No.of trades no.of order Quanti LTP positive shares trades (LTP> order qty ty contributiLTP to held
0) s range on (Rs.) Total before Market these positive trades.
LTP 1. Sanjay Kumar 1 1 1 10 10 9.2 7.07% 85 Sharma
2. Sonu 1 1 1 7 7 8.8 6.77% 100
3. Sunil Singhal 2 1 1 11 11 7.6 5..84% 90
4. Vishnu Khaitan 2 2 2 5 10 7.4 5.69% 25
5. Rachana Govind 1 1 1 5 5 6.95 5.34% 25 Attal
6. Susmita Pathak 1 1 1 5 5 6 4.61% 25
7. Samaresh Pathak 1 1 1 5 5 5.7 4.38% 25
8. Shalini Agarwal 3 2 3 5-14 25 3.7 2.85% 5
9. Benu Mimani 1 1 1 10 10 2.1 1.61% 25
10. Kamal Baid 1 1 1 10 10 1.95 1.50% 25
11. Vinodkumar 3 1 3 6-11 25 1.75 1.35% 25 Chotamal Jain Total 17 13 36 121 61.15 47.82% 38
27. The pattern thus would reveal that while some buyers had placed a buy order for a higher price on larger scale, the relevant appellant/noticees who purchased the shares in off market for lower price, used to put sell orders on miniscule quantities between 1 to 10 which get matched with the buy orders. Some buy orders remained pending on the system for many hours but those got matched with the miniscule sell orders after more than 3-4 hours when either of these noticees/appellants placed their sell orders. To repeat the share was highly illiquid as prior to the investigation period for ten months not a single trade for a single share occurred till Appellant Narayan Das Rathi transferred the shares in off market transactions for a lower price to the other noticees/appellants.
28. All the above facts would show that except noticee/appellant Narayan Das Rathi nobody was holding the shares prior to 26th February, 2013 and thereafter the shares were transferred in off market 39 transactions to the 27 entities either directly from him or through Appellant Devindar Kumar, for a price less than the price offered through pending buy orders on the exchange platform. Thereafter those shares were sold on miniscule proportion on the platform of SEBI for a higher price though buy orders for this higher price used to be in existence and sufficient share were available to sell, thus substantially contributing to the Last Traded Price (LTP). Tables no. 3 and 4 of the impugned order shows that they had contributed to 70.96 % of the total trades during the period in question.
29. While some of the appellants like Kusum Devi Baid, Kamal Baid, Dev Kishan Mal, Kuldeep Singh, Devindar Kumar, Rachana Atal, Debashish Chowdhary did not explain before the Adjudicating Officer by failing to file reply to the show cause notice, some of the appellant though filed reply were unable to explain as to why they put sell order on miniscule 40 quantity when a comparatively large buy orders were pending for the price which was more than price they purchased. They simply defended their action by replying that selling of shares in miniscule quantities is not illegal.
30. It is true that no direct connection between the seller and the buyer is established in the present case. We do not have material to find out whether respondent SEBI had investigated the said connection. However, in my view the insistence solely on the establishment of the connection or non-prosecution of the buyers would be against the very principle that the facts are to be established on preponderance of probability and not on the requirement that the facts in issue should be proved beyond reasonable doubt or to the hilt.
The Tribunal has to consider all the probabilities either favouring or against the premise and to repeat, if majority of probabilities points toward the existence of 41 fact in issue , then the premise/ the charge will have to be upheld.
31. To sum up, we find that trading in the scrip of Dhanleela was suspended on the stock exchange platform for a period of six years. After revocation of the suspension there was no trade at all for a period of 10 months. It was thus a highly illiquid stock. Thereafter the trade opened at Rs.17.50. During patch one investigation period i.e. from 26th February, 2013 to 9th October, 2013 it reached to 427.85. The appellant and the other noticees were the major contributors to this fact through abnormal transactions. Their sell on the exchange platform created a picture of rosy picture of large scale trade quantities through miniscule sale of shares. Thereafter in patch 2 investigation period i.e. from 10th October, 2013 to 5th December, 2013 the price showed the same trend with the same modus operandi. The fundamentals of the company however did not match with this price swing. 42 These appellants had no shares with them before these transactions. They had received shares in off market transaction either directly or indirectly from the Appellant Narayan Das Rathi for lower price than the price available on exchange platform. No logical explanation is forthcoming from the appellants for these abnormal affairs. Therefore only conclusion that can be drawn in my view is that all these transactions were non genuine and were entered into only to manipulate the price of the shares of Dhanleela.
32. It is true that a connection between buyer and seller or between promoter/company and the buyer or seller would be a strong indicator to conclude that there were manipulative trades. In the absence of the same however, this Tribunal is not handicapped in arriving at the above conclusion as preponderance of probabilities definitely lies in favour of the charge as detailed above. In the circumstances in my view the appeals deserve to be dismissed without any order as to 43 costs. The appeals are accordingly dismissed. Misc. Application No. 414 of 2020 is also accordingly disposed of.
Justice M.T. Joshi Judicial Member 16.2.2021 RHN
33. In view of the majority opinion, the impugned order cannot be sustained and is quashed in so far as the appellants are concerned. All the appeals are allowed with no order as to costs. Misc. Application no.414 of 2020 is accordingly disposed of.
34. The present matter was heard through video conference due to Covid-19 pandemic. At this stage it is not possible to sign a copy of this order nor a certified copy of this order could be issued by the registry. In these circumstances, this order will be digitally signed by the Private Secretary on behalf of 44 the bench and all concerned parties are directed to act on the digitally signed copy of this order. Parties will act on production of a digitally signed copy sent by fax and/or email.
Justice Tarun Agarwala Presiding Officer Dr. C.K.G. Nair Member Justice M.T. Joshi Judicial Member 16.2.2021 RAJALA Digitally signed by RAJALAKSHMI RHN KSHMI H HDate:
NAIR 2021.02.18 NAIR 15:36:39 +05'30'