THE SECURITIES AND EXCHANGE BOARD OF INDIA

Transcription

1 74 CHAPTER - 3 THE SECURITIES AND EXCHANGE BOARD OF INDIA INTRODUCTION The Securities and Exchange Board of India (SEBI) was constituted on 12 April 1988 as a non statutory body through an administrative Resolution of the Government for dealing with all matters relating to development and regulation of the Securities market and investor protection and to advise the government on all these matters. SEBI was given statutory status and powers through and ordinance promulgated on January 30, SEBI was established as a statutory body on 21 February The ordinance was replaced by an Act of Parliament as 4th April The Preamble of SEBI Act, 1992 enshrines the objectives of SEBI - to protect the interest of investor in securities market and to promote the development of and to regulate the securities market. The statutory powers and functions of SEBI were strengthened through the promulgation of the Securities Laws (Amendment) Ordinance on 25th January 1995, which was subsequently replaced by an Act of Parliament. 84 Before SEBI Act, 1992, the three principal Acts governing the securities market were: (a) the Capital Issues (Control) Act, 1947, which restricted issuer's access to the securities market and controlled the pricing of issues; (b) the Companies Act, 1956, which sets out the code of conduct for the corporate sector in relation to issue, allotment and transfer of securities, and disclosures to be made in public issues; and (c) the Securities Contracts (Regulation) Act, 1956, which provides for regulation of transactions in securities through control over stock exchanges. The Capital Issues (Control) Act, 1947 had its origin during the war in 1943 when the objective was to channel resources to support the war effort. The Act was retained with some modifications as a means of controlling the raising of capital by companies and to ensure that national resources were channelled into proper lines, i.e., 84 working paper series no. 7: Price Discovery and Volatility on NSE future Market: By M T Raju and Kiran Karnade.

2 75 for desirable purposes to serve goals and priorities of the government, and to protect the interests of investors. Under the Act, any firm wishing to issue securities had to obtain approval from the Central Government, which also determined the amount, type and price of the issue. Major part of the liberalisation process was the repeal of the Capital Issues (Control) Act, 1947 in May With this, Government's control over issue of capital, pricing of the issues, fixing of premia and rates of interest on debentures etc. ceased. The office which administered the Act was abolished and the market was allowed to allocate resources to competing uses. However to ensure effective regulation of the market, SEBI Act, 1992 was enacted to empower SEBI with statutory powers for (a) protecting the interests of investors in securities, (b) promoting the development of the securities market, and (c) regulating the securities market. Its regulatory jurisdiction extends over corporate in the issuance of capital and transfer of securities, in addition to all intermediaries and persons associated with securities market. SEBI can specify the matters to be disclosed and the standards of disclosure required for the protection of investors in respect of issues; can issue directions to all intermediaries and other persons associated with the securities market in the interest of investors or of orderly development for securities market; and can conduct enquiries, audits and inspection of all concerned and adjudicate offences under the Act. In short, it has been given necessary autonomy and authority to regulate and develop an orderly securities market. 2. IMPORTANT DEFINITIONS UNDER THE ACT: - (1) The Board - Board means the Securities and Exchange Board of India established under the act 85. The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. This definition is analogous to section 34(2) of the Companies Act, 1956 and like a company incorporated under the Companies Act, SEBI is a body 85 "Act" means The Securities and Exchange Board of India Act, 1992

3 76 corporate but unlike a company, SEBI does not have corporators, i.e. shareholders. Apart from this attribute, SEBI has by virtue of sub section (2) of this section, all the attributes of an incorporated company or corporation, the chief one being independent legal entity. As per Companies Act, 1956, Body corporate means - Body corporate of corporation includes a company incorporated outside India but does not include - (a) a corporation sole ; (b) a co operative society registered under any law relating to cooperative societies ; and (c) any other body corporate (not being a comp any as defined in this act), which the Central Government may, by notification in the official Gazette, specify in this behalf; In State Trading Corporation Vs Commercial Tax officer (1963) Hidayatullah, J, defined the body corporate as : Unlike an unincorporated company, which has no separate existence and which the law does not distinguished from its members, an incorporated company has a separate existence and the law recognizes it as a legal person separate and distinct from its members. This new legal personality emerges from the moment of incorporation and from that date the persons subscribing to the memorandum of association and other persons joining as member are regarded as a body corporate or a corporation aggregate and the new person begins to function as an entity. 86 (2) Collective investment scheme 87 - Any scheme or arrangement made or offered by any company under which:- a) the contributions, or payments made by the investors, by whatever name called, are pooled and utilized solely for the purposes of the scheme or arrangement; b) the contributions or payments are made to such scheme or arrangement by the investors with a view to receive profits, income, produce or property, whether movable or immovable from such scheme or arrangement; , 33 comp case 1057(SC) : AIR 1963 SC 1811, 87 Section 11 AA, Inserted by the Securities Laws (Amendment) Act, 1999, w.e.f

4 77 c) the property, contribution or investment forming part of scheme or arrangement, whether identifiable or not, is managed on behalf of the investors; d) the investors do not have day to day control over the management and operation of the scheme or arrangement. However, any scheme or arrangement shall not be a collective investment scheme - a) which made or offered by a co-operative society registered under the cooperative societies Act,1912 or a society being a society registered or deemed to be registered under any law relating to cooperative societies for the time being in force in any state; b) under which deposits are accepted by non-banking financial companies as defined in clause (f) of section 45 -I of the Reserve Bank of India Act, 1934; c) being a contract of insurance to which the Insurance Act,1938, applies; d) providing for any scheme, Pension Scheme or the Insurance Scheme framed under the Employees Provident Fund and Miscellaneous Provisions Act, 1952; e) under which deposits are accepted under section 58A of the Companies Act, 1956; f) under which deposits are accepted by a company declared as a Nidhi or a mutual benefit society under section 620A of the Companies Act, 1956(1 of 1956); g) falling within the meaning of Chit business as defined in clause (d) of section 2 of the Chit Fund Act, 1982; h) under which contributions made are in the nature of subscription to a mutual fund; (3) The existing Securities and Exchange Board- means the Securities and Exchange Board of India constituted under the Resolution of the Government of India in the Department of Economic Affairs No.1 (44)SE/86, dated the 12th day of April, 1988;

5 78 (4) "Securities"- Securities has the meaning assigned to it in section 2 of the Securities Contracts (Regulation) Act, as per section 2 of the SCRA, securities include- (i) Shares, scrips, stocks, bonds, debentures, debentures stock or other marketable securities of like nature in or of any incorporated company or other body corporate; (ii) Derivative; (iii) Units or any other instruments issued by any collective investment scheme to the investors in such schemes; (iv) security receipt as defined in clause (zg) of section 2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, As per clause 2 (zg) of SARFAESI Act, the security receipt means a receipt or other security, issued by a securitisation company or reconstruction company to any qualified institutional buyer pursuant to a scheme, evidencing the purchase or acquisition by the holder thereof, of an undivided right, title or interest in the financial asset involved in securitisation; 3. FUNCTIONS OF THE BOARD 89 The power and functions of the board as per act are very wide and effective, which can deal the securities market in very effective manner to protect the interest of investors and shareholders. They are as follows: Functions of Board 90.- it shall be the duty of the Board to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, by such measures as it thinks fit. These measures include: a. regulating the business in stock exchanges and any other securities markets; b. registering and regulating the working of stock brokers, sub-brokers, share transfer agents, bankers to an issue, trustees of trust deeds, registrars to an issue, merchant bankers, underwriters, portfolio 89 Chapter IV of the SEBI Act, 1992 deals with the powers and functions of the Board. 90 Section 11 of the SEBI act, 1992

6 79 managers, investment advisers and such other intermediaries who may be associated with securities markets in any manner; c. registering and regulating the working of the depositories, participants, custodians of securities, foreign institutional investors, credit rating agencies and such other intermediaries as the Board may, by notification, specify in this behalf; d. registering and regulating the working of venture capital funds and collective investment schemes],including mutual funds; e. promoting and regulating self-regulatory organizations; f. promoting investors education and training of intermediaries of securities markets; g. prohibiting insider trading in securities; h. regulating substantial acquisition of shares and take-over of companies in the securities market; i. calling for calling for information from, undertaking inspection, conducting inquiries and audits of the 16 [ stock exchanges, mutual funds, other persons associated with the securities market] intermediaries and self- regulatory organisations information and record from any bank or any other authority or board or corporation established or constituted by or under any Central, State or Provincial Act in respect of any transaction in securities which is under investigation or inquiry by the Board; j. performing such functions and exercising such powers under the provisions of the Securities Contracts (Regulation) Act, 1956 as may be delegated to it by the Central Government; k. levying fees or other charges for carrying out the purposes of this section; l. conducting research for the above purposes; m. calling from or furnishing to any such agencies, as may be specified by the Board, such information as may be considered necessary by it for the efficient discharge of its functions; n. Performing such other functions as may be prescribed. o. the Board may take measures to undertake inspection of any book, or register, or other document or record of any listed public company or a

7 80 public company (not being intermediaries referred to in section 12 of the act) which intends to get its securities listed on any recognised stock exchange where the Board has reasonable grounds to believe that such company has been indulging in insider trading or fraudulent and unfair trade practices relating to securities market. In the case of Virendra Bansal Vs. Securities and Exchange Board of India & Another 91 The Hon ble High court of Gujrat has held that as a cumulative effect of the aforesaid facts and circumstances of the case and the judicial pronouncements, the Scheme floated by SEBI viz. SEBI (Interest Liability and Regularization) Scheme 2004 is absolutely true, correct and legal in consonance with the Act, Likewise, the calculation of registration fees, adopted by SEBI in absence of break up turnover and in absence of Auditor s report before the cut off date, is true, correct, legal and in consonance with the Act, 1992 and Regulations, The Court cannot extend the benefit of the Scheme after the cut off date, especially in the facts of the present case, when enough extensions have been given by SEBI and whereby a large number of stock-brokers of Ahmedabad Stock Exchange have already availed the benefit of the Scheme. The cut off date is a integral part of the benefit under the Scheme. Cut off date, in facts of this case is not an arbitrary. The concession and conditions of the regularization Scheme cannot be segregated. It is a matter of Government policy that what to give as a concession for, what is to be achieved promptly, without keeping the open ended policy. The Scheme is optional. It is in consonance with the Act, 1992 and Regulations, For the reasons stated herein above, the petitions fail. In all the Special Civil Applications Rule is discharged with no order as to costs. Interim relief grated, earlier, is vacated. 91 Special Civil Application No. 1396/04, 14328/04, 14328/04, 14351/04, 14355/04, 14650/04, 14641/04, 14631/04, 1518.

8 81 4. POWERS OF THE SEBI BOARD the board has been assigned with following power : 4.1 Power of Civil court 92 - For carrying out the duties assigned to it under the act, the SEBI has been vested with the powers as are available to a Civil Court under the Code of Civil Procedure Code, 1908 for trying a suit in respect of following matters : i. the discovery and production of books of account and other documents, at such place and such time as may be specified by the Board; ii. summoning and enforcing the attendance of persons and examining them on oath; iii. inspection of any books, registers and other documents of any person referred to in section 12, at any place; iv. inspection of any book, or register, or other document or record of the company ; v. issuing commissions for the examination of witnesses or documents. 4.2 Powers to suspend and restrain 93 - the Board may, by an order, for reasons to be recorded in writing, in the interests of investors or securities market, take any of the following measures, either pending investigation or inquiry or on completion of such investigation or inquiry 94, namely:- a) suspend the trading of any security in a recognised stock exchange; b) restrain persons from accessing the securities market and prohibit any person associated with securities market to buy, sell or deal in securities; c) suspend any office-bearer of any stock exchange or self- regulatory organisation from holding such position; d) impound and retain the proceeds or securities in respect of any transaction which is under investigation; 92 Section 11 (3) of the SEBI Act, Section 11(4) of the SEBI Act, Substituted for clause (i) of sub section (2) by the SEBI (Amendment) Act, 2002, w.e.f

9 82 e) attach, after passing of an order on an application made for approval by he Judicial Magistrate of the first class having jurisdiction, for a period not exceeding one month, one or more bank account or accounts of any intermediary or any person associated with the securities market in any manner involved in violation of any of the provisions of this Act, or the rules or the regulations made thereunder: However, only the bank account or accounts or any transaction entered therein, so far as it relates to the proceeds actually involved in violation of any of the provisions of this Act, or the rules or the regulations made thereunder shall be allowed to be attached; (f) direct any intermediary or any person associated with the securities market in any manner not to dispose of or alienate an asset forming part of any transaction which is under investigation. The board may, take any of the measures specified in clause (d) or clause (e) or clause (f), in respect of any listed public company or a public company 95 which intends to get its securities listed on any recognised stock exchange where the Board has reasonable grounds to believe that such company has been indulging in insider trading or fraudulent and unfair trade practices relating to securities market. Further more the Board shall, either before or after passing such orders, give an opportunity of hearing to such intermediaries or persons concerned. 4.3 Powers to regulate or prohibit issue of prospectus, offer document or advertisement soliciting money for issue of securities 96. The Board may for the protection of investors for (i) the matters relating to issue of capital, transfer of securities and other matters incidental thereto; and (ii) the manner in which such matters shall be disclosed by the companies. The Board may by general or special orders prohibit any company from issuing prospectus, any offer document, or advertisement soliciting money from the public for the issue of securities. The board may also specify the conditions subject to which the prospectus, such offer document or advertisement, if not prohibited, may be issued. It may 95 not being intermediaries referred to in section section 11A (1) of the SEBI Act, 1992

10 83 specify the requirements for listing and transfer of securities and other matters incidental thereto. 4.4 Power to issue directions 97. If after making enquiry, the Board is satisfied that it is necessary in the interest of investors, or orderly development of securities market. Or to prevent the affairs of any intermediary or other persons referred to in section 12 (stock broker, sub broker, share transfer agents etc.) being conducted in a manner detrimental to the interest of investors or securities market. Or to secure the proper management of any such intermediary or person. It may issue such directionsa. to any person or class of persons referred to in section 12, or associated with the securities market; or b. to any company in respect of matters specified in section 11A, as may be appropriate in the interests of investors in securities and the securities market In the matter of Securities and Exchange Board of IndiaVs. Ajay Agarwal 98, there was alleged misstatement of facts in prospectus of company and misguiding investors. Restraint order from accessing securities market (Power of SEBI to issue directions Section 11B of the Securities and Exchange Board of India Act, 1992 ) While using powers the SEBI restrained Director of Company from accessing securities market on prima facie case that facts were misstated in the prospectus of the company during public issue of shares and therefore, investors were misguided. The Appellate Board ruled in favour of Respondent on ground that provision of Section 11B cannot be invoked in respect of the alleged misconduct which took place at a point of time when Section 11B was not on the statute book. The issue was whether Section 11B of the Securities and Exchange Board of India Act, 1992 could be invoked by the Chairman of the in conjunction with Sections 4(3) and 11 for restraining the Respondent. The Supreme Court has held that Provisions of Section 11B being procedural in nature can be applied retrospectively. Even if the law 97 Section 11(B) of the SEBI Act, MANU/SC/0137/ 2010

11 84 applies prospectively, the Board cannot be prevented from acting in terms of the law which exists on the day the Board passed its order. The High Court of Bombay has decided in favour of powers exercised by board under SEBI Act, in the matter of Banhem Securities Pvt. Ltd Vs National Stock Exchange & ors 99. The brief facts of the matter are:- The challenge in this petition is to the circular issued by the SEBI Board dated , the relevant portion of which reads thus : The Stock Exchange should on receipt of the arbitration award, debit the amount of the arbitration award from the security deposit or any other monies of the member (ag ainst whom an award has been passed) and keep the amount in a separate account. Thereafter, a confirmation may be obtained from the concerned member that he has not filed any appeal within the stipulated time under section 34 of the Arbitration and Conciliation Act, and only then the payment may be made to the awardee. If an appeal is filed and the same is pending in a Court of law, the amount so kept in the separate account be paid to the awardee in accordance with the court orders. At the time of debiting the amount, the Stock Exchange may if so desire inform him that the Exchange will not be liable for loss of interest, business etc in case the award is modified by the Court. The Exchange may also indicate that if any amount of interest is still payable to the awardee e.g. from the date of debiting the member s account till the date of payment of the award amount to the awardee, the same be recoverable from the concerned member and the Stock Exchange shall not be liable in this regard. The validity of the circular is assailed mainly on the ground that it is contrary to the provisions of section 36 of the Arbitration and Conciliation Act, Section 36 lays down that where time prescribed under section 34 to set aside the award has expired and no application is made therefrom or if it is made, it has been refused, then the award would become enforceable as a decree under the provisions of the C.P.C. It further provides that if application is made, then till the application is refused the award does not become enforceable as a 99 the Writ Petition Lodging No. 168 of 2002, dated

12 85 decree and such enforceability is postponed till the application for setting aside the award under section 34 is decided. The contention is that if the award is not enforceable under the provisions of the said Act, it cannot be made executable by virtue of the administrative instructions issued by the SEBI. It is also contended that the impugned circular makes provision for deposit only in the case where the award is passed in favour of the constituent and against a broker but does not make any provision where the award is passed in favour of a broker and against the constituent. Therefore it is contended that the circular is violative of Article 14 of the Constitution. It is contended that in any event once award is set aside then the amount with accrued interest is liable to be refunded. The circular, however, provides only for refund of the principal amount. The Hon ble High court held that - In our opinion the challenge to the impugned circular is without any substance. The circular has been issued by the SEBI Board in exercise of powers under section 11 and 11B of the SEBI Act in order to protect interest of the investors. It has been brought to the notice of the SEBI Board that arbitration awards passed in favour of the clients / investors are not implemented and the Stock Exchanges are unable to take appropriate action in order to ensure implementation of the awards. In our opinion the decision taken by the SEBI is in the right direction. It helps to protect the investors. The circular issued by the SEBI is confined to members / brokers of the Stock Exchanges and there is no question of the circular being contrary to the provisions of section 36 or any other provisions of the Arbitration and Conciliation Act, We do not find any illegality or arbitrariness in the circular. Petition is dismissed The High court of Calcutta has also given order in the case of in the matter of Raj Kumar Kishorepuri Vs General Manager, Securities & Exchange Board of India & Ors. 100 The brief facts of the matter - The petitioner in this writ petition is aggrieved by the notice issued by the General Manager, Securities and Exchange Board of India dated August 26 th, By the notice he was asked to show cause why proceedings should not be initiated against him 100 W. P. No of 2004, Judgment on : March 23 rd, 2005 (

13 86 under the Securities and Exchange Board of India Act, 1992, s.11b, read with the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995, regn.12, and the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003, regn.11, for the role he played in the process of irregular allotment of preferential shares by a Padmini Technologies Ltd. in the year Section 30 of the Securities and Exchange Board of India Act, 1992 empowered the board to make regulations for carrying out the purposes of the Act. In exercise of such power it first made the 1995 regulations, which were repealed by the 2003 regulations (now in force), providing by their regn. 13 that notwithstanding the repeal violations of provisions of the repealed regulations shall be investigated and proceeded against, and any investigation pending, at the date of their commencement, shall be continued and disposed of, according to the procedure laid down in them. Counsel for the petitioner argues that provisions of regn. 12 of the repealed regulations and regulation 11 of the new regulations, both being substantive provisions of law, as opposed to procedural ones, while, in view of provisions of regn.13 of the new regulations, the board is empowered to follow the procedural provisions of the new regulations for concluding the pending investigations, it does not possess the power to take any action against or punish the petitioner under regn. 11 of the new regulations, though, if occasion arises, it can do so under regn. 12 of the repealed regulations. Counsel for the respondents argues that since sub-regns. 2 & 3 of regn. 13 begin with non obstante clauses, even for the violations of provisions of the repealed regulations by the petitioner, the board would be empowered to take action in terms of regn. 11 of the new regulations. She refers me to passages from treatise and the decisions in : Union of India & Anr. v. G. M. Kokil & Ors 101, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram 102, Narcotics 101 (AIR 1984 SC 1022)

14 87 Control Bureau v. Kishan Lal and Ors. 103, and M/s. Orient Paper & Industries Ltd. & Anr. v. State of Orissa & Ors. 104 It is apparent from the impugned post investigation show cause notice that the board contemplated actions against the petitioner under s.11b, which empowers it to issue all or any of the directions specified in regn.11 of the new regulations. I say so, because s.11b confers power on the board to issue such directions as may be appropriate in the interests of investors in securities and securities market. Therefore, to my mind, in any case, the petitioner cannot say that the measures mentioned in regn.11 cannot be taken against him, if there are good and sufficient reasons for taking any of them. For these reasons I conclude that there being no merit in the sole contention raised to challenge the show cause notice, the writ petition is liable to be dismissed; and accordingly I dismiss it. 4.5 Power to investigate 105 Where the Board has reasonable ground to believe that the transactions in securities are being dealt with in a manner detrimental to the investors or the securities market or any intermediary or any person associated with the securities market has violated any of the provisions of this Act or the rules or the regulations made or directions issued by the Board, it may, at any time by order in writing, direct any person 106 specified in the order to investigate the affairs of such intermediary or persons associated with the securities market and to report thereon to the Board. It shall be the duty of every manager, managing director, officer and other employee of the company and every intermediary referred to in section 12 or every person associated with the securities market to preserve and to produce to the Investigating Authority or any person authorised by it in this behalf, all the books, registers, other documents and record of, or relating to, the 102 (AIR 1987 SC 117) 103 (AIR 1991 SC 558) 104 (AIR 1991 SC 672). 105 section 11 (C) of the SEBI Act, Investigating authority

15 88 company or, as the case may be, of or relating to, the intermediary or such person, which are in their custody or power. The Investigating Authority may require any intermediary or any person associated with securities market in any manner to furnish such information to, or produce such books, or registers, or other documents, or record before it or any person authorised by it in this behalf as it may consider necessary if the furnishing of such information or the production of such books, or registers, or other documents, or record is relevant or necessary for the purposes of its investigation. The Investigating Authority may keep in its custody any books, registers, other documents and record produced for six months and thereafter shall return the same to any intermediary or any person associated with securities market by whom or on whose behalf the books, registers, other documents and record are produced, provided that the Investigating Authority may call for any book, register, other document and record if they are needed again. If the person on whose behalf the books, registers, other documents and record are produced requires certified copies of the books, registers, other documents and record produced before the Investigating Authority, it shall give certified copies of such books, registers, other documents and record to such person or on whose behalf the books, registers, other documents and record were produced. Any person, directed to make an investigation may examine on oath, any manager, managing director, officer and other employee of any intermediary or any person associated with securities market in any manner, in relation to the affairs of his business and may administer an oath accordingly and for that purpose may require any of those persons to appear before it personally. If any person fails without reasonable cause or refuses to produce to the Investigating Authority or any person authorised by it in this behalf any book, register, other document and record which is his duty to produce or to furnish any information which is his duty to furnish or to appear before the Investigating authority personally when required to do so or to answer any question which is put to him by the Investigating Authority or to sign the notes of any examination, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, which may extend to one

16 89 crore rupees, or with both, and also with a further fine which may extend to five lakh rupees for every day after the first during which the failure or refusal continues. Notes of any examination shall be taken down in writing and shall be read over to, or by, and signed by, the person examined, and may thereafter be used in evidence against him. Where in the course of investigation, the Investigating Authority has reasonable ground to believe that the books, registers, other documents and record of, or relating to, any intermediary or any person associated with securities market in any manner, may be destroyed, mutilated, altered, falsified or secreted, the Investigating Authority may make an application to the Judicial Magistrate of the first class having jurisdiction for an order for the seizure of such books, registers, other documents and record. After considering the application and hearing the Investigating Authority, if necessary, the Magistrate may, by order, authorise the Investigating Authority to enter, with such assistance, as may be required, the place or places where such books, registers, other documents and record are kept to search that place or those places in the manner specified in the order and to seize books, registers, other documents and record, it considers necessary for the purposes of the investigation. However, the Magistrate shall not authorise seizure of books, registers, other documents and record, of any listed public company or a public company 107 which intends to get its securities listed on any recognised stock exchange unless such company indulges in insider trading or market manipulation. The Investigating Authority shall keep in its custody the books, registers, other documents and record seized under this section for such period not later than the conclusion of the investigation as it considers necessary and thereafter shall return the same to the company or the other body corporate, or, as the case may be, to the managing director or the manager or any other person, from whose custody or power they were seized and inform the Magistrate of such return: Provided that the Investigating Authority may, before returning such books, registers, other documents and record as aforesaid, place identification marks on them or any part thereof. Every search or seizure made 107 not being the intermediaries specified under section 12 of the SEBI Act, 1992

17 90 under this section shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973, relating to searches or seizures made under that Code. In the case of K. Venkateswarlu Vs The Regional Manager, SEBI & Anr 108. The Hon ble High court of Delhi has decided the matter to issue writ of mandamus or not to SEBI to take action on the complaint of customer and writ petition is in the nature of PIL- Brief facts of the matter- This Writ Petition has been filed under Article 226 of the Constitution of India by the Petitioner making following prayers: a. issue a writ of mandamus or any other appropriate writ directing the Respondent no. 1 to conduct an enquiry regarding the Price manipulation/insider trading of the Respondent No. 2 scrip during the said period. b. direct the Respondent No. 1 to file a report on the subject in this Hon'ble Court for further directions. c. pass such any other or further order/direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. The Petitioner has stated that he was a small investor in the shares and the price of scrip of Respondent No. 2 company fluctuated vigorously first upward and then downward. The Petitioner had purchased 3000 shares of respondent no. 2 Rs and had to sell Rs thus incurring a loss of Rs.65, He made complaint to SEBI (Respondent No. 1) bringing it to the notice of SEBI that there was 'inside trading' and manipulation of price of scrip of Respondent No. 2 company but SEBI took no action and hence this Writ Petition. 3. This Court observed as under: Those, who deal in stock market and purchase shares as a mode of investment, know very well that stock market is sometime in the grip of bulls and sometime in the grip of bears. Recent trend in the stock market has shown that the stock prices do not reflect the real value of the share and hike and fall in the price of the share takes place due to several factors like sudden interest of the foreign investors into Indian Stock 108 Date of Order: W.P.(Crl.) No. 324/2007, (

18 91 Market or sudden fall in the stock market world over. SEBI is a specialized body constituted under the Act, which takes care of different regulations meant for stock market. SEBI is supposed to know when and where the investigation is to be done by it. This Court on the prayer of individual shareholder because of fall in price of his shares cannot give directions to SEBI to conduct investigations either itself or through CBI. It is surprising that the petitioner had come when share price of his share has fallen. He must be earning profits when share prices went up by the same process which the petitioner is alleging was responsible for fall in the share price and petitioner did not approach the Court at that time, although, petitioner is stated to be dealing in shares for the last ten years. When you suffer losses you suddenly feel that there is some manipulation and when you gain profits, the same feeling is not there. Moreover this petition is in the nature of PIL. This Court cannot entertain PILs. I consider that the petition is not maintainable and is hereby dismissed. 4.6 Power to issue Cease and desists proceeding 109 If the Board finds, after causing an inquiry to be made, that any person has violated, or is likely to violate, any provisions of this Act, or any rules or regulations made thereunder, it may pass an order requiring such person to cease and desist from committing or causing such violation: Provided that the Board shall not pass such order in respect of any listed public company or a public company which intends to get its securities listed on any recognised stock exchange unless the Board has reasonable grounds to believe that such company has indulged in insider trading or market manipulation. 4.7 Regulation of Intermediaries 110 : Registration of Stock Broker, Sub Broker, Share Transfer Agents. There are number of intermediaries which are associated with securities market in buying, selling and otherwise dealing in securities such as :- (i) stock-broker, (ii) sub- broker, (iii) share transfer agent, 109 Section 11 D of the SEBI Act, Chapter V registration certificate : the SEBI Act, 1992

19 92 (iv) banker to an issue, (v) trustee of trust deed, (vi) registrar to an issue, (vii) merchant banker, (viii) underwriter, (ix) portfolio manager, (x) investment adviser. Etc. As per section 12 (1) of the act :- No stock-broker, sub- broker, share transfer agent, banker to an issue, trustee of trust deed, registrar to an issue, merchant banker, underwriter, portfolio manager, investment adviser and such other intermediary who may be associated with securities market shall buy, sell or deal in securities except under, and in accordance with, the conditions of a certificate of registration obtained from the Board in accordance with the regulations made under this Act: Provided that a person buying or selling securities or otherwise dealing with the securities market as a stock- broker, sub-broker, share transfer agent, banker to an issue, trustee of trust deed, registrar to an issue, merchant banker, underwriter, portfolio manager, investment adviser and such other intermediary who may be associated with securities market immediately before the establishment of the Board for which no registration certificate was necessary prior to such establishment, may continue to do so for a period of three months from such establishment or, if he has made an application for such registration within the said period of three months, till the disposal of such application. If any certificate of registration, obtained immediately before the commencement of the Securities Laws (Amendment) Act, 1995, shall be deemed to have been obtained from the Board in accordance with the regulations providing for such registration. Section 12 (1A) of the a ct prescribes that no depository, participant 111, custodian of securities, foreign institutional investor, credit rating agency or any other intermediary associated with the securities market as the Board may by notification in this behalf specify, shall buy or sell or deal in securities except under and in accordance with the conditions of a certificate of 111 Inserted by Depositories Act, 1996, w.e.f

20 93 registration obtained from the Board in accordance with the regulations made under this Act. If a person buying or selling securities or otherwise dealing with the securities market as a depository, participant, custodian of securities, foreign institutional investor or credit rating agency immediately before the commencement of the Securities Laws (Amendment) Act, 1995, for which no certificate of registration was required prior to such commencement, may continue to buy or sell securities or otherwise deal with the securities market until such time regulations are made under clause (d) of sub -section (2) of section 30. Section 12 (1B) prescribe that No pe rson shall sponsor or cause to be sponsored or carry on or cause to be carried on any venture capital funds or collective investment schemes including mutual funds, unless he obtains a certificate of registration from the Board in accordance with the regulations. If any person sponsoring or causing to be sponsored, carrying on or causing to be carried on any venture capital funds or collective investment schemes operating in the securities market immediately before the commencement of the Securities Laws (A mendment) Act, 1995, for which no certificate of registration was required prior to such commencement, may continue to operate till such time regulations are made under clause (d) of sub-section (2) of section 30. Every application for registration shall be in such manner and on payment of such fees as may be determined by regulations Power to Cancel Certificate 113 :- the Board may, by order, suspend or cancel a certificate of registration in such manner as may be determined by regulations. However as per proviso of this section, no order under this subsection shall be made unless the person concerned has been given a reasonable opportunity of being heard. According to this section SEBI is empowered to suspend or cancel a certificate of registration granted by it. However, this should be done as per principle of natural justice and requires a reasonable opportunity of being heard to such person. Moreover, any order passed by SEBI under this sub section would affect vital rights of the concerned person, so, the order must be a speaking or 112 Section 12 (2) of the Sebi Act, Section 12 (3) of the SEBI Act, 1992

21 94 reasoned order notwithstanding the fact that the SEBI is not a judicial or a quasi Judicial body. In S N Mukherjee Vs Union of India 114 the Supreme Court has held that in view of the expanding horizon of the principle of natural justice, the requirement to record reasons can be regarded as one of the principle of natural justice which governs exercise of power by administrative authorities. In another case, in The Securties Exchange Board of India Vs Saikala Associaties Ltd. 115 the apex court was considering an appeal filed by SEBI challenging the order passed by the Tribunal overturning the order earlier passed by SEBI against broker for violation of the provisions of section 12(1) ead with rule 3, the 1992 rules. After considering the rival submissions, the only question before the apex court was, Whether Tribunal has power to modify the penalty imposed by SEBI? The Supreme court observed that, the position of Broker / sub broker in case of violation was statutorily provided under section 12 of the Act, which has to be read with rule 3 of the rules. The apex court further observed that, no power has been conferred on the Tribunal to travel beyond the areas covered by section 12 ad rule 3 ad concluded that when something was to be done statutorily in a particular way, it can be done only in that way and there was no scope for taking shelter under a discretionary power. Accordingly, the order of the Tribunal was set aside and the order passed by SEBI was restored. Hence the Supreme Court has settled the issue that in case where even the manner of statutory penalty is provided by law then the tribunal has no option but to follow the law and it cannot change the penalty by taking recourse to the plea that it has discretionary power under the act. 4.9 Powers to Prohibit the Manipulative and Deceptive Devices, Insider Trading and Substantial Acquisition of Securities or Control 116 According to Section 12 A of the act, no person shall directly or indirectly (a) use or employ, in connection with the issue, purchase or sale of any securities listed or proposed to be listed on a recognised stock exchange, 114 AIR 1990 SC 1984, 115 (2009) 91SCL 443 (SC), MANU/SC/0629/2009, (2009) AIR 2009 SC Chapter V A of the SEBI Act, 1992

22 95 any manipulative or deceptive device or contrivance in contravention of the provisions of this Act or the rules or the regulations made there under; (b) employ any device, scheme or artifice to defraud in connection with issue or dealing in securities which are listed or proposed to be listed on a recognised stock exchange; (c) engage in any act, practice, course of business which operates or would operate as fraud or deceit upon any person, in connection with the issue, dealing in securities which are listed or proposed to be listed on a recognised stock exchange, in contravention of the provisions of this Act or the rules or the regulations made thereunder; (d) engage in insider trading; (e) deal in securities while in possession of material or non-public information or communicate such material or non-public information to any other person, in a manner which is in contravention of the provisions of this Act or the rules or the regulations made thereunder; (f) acquire control of any company or securities more than the percentage of equity share capital of a company whose securities are listed or proposed to be listed on a recognised stock exchange in contravention of the regulations made under this Act Powers to impose Penalties and Adjudication Chapter VI of the SEBI Act, 1992 contains Section 15A to Section 15 JA which deals with penalties which can be imposed under the Act for various failures, defaulters, non disclosures and other offences Penalties For Failures, Disclosures Etc if any person, who is required under this Act or any rules or regulations made thereunder (a) to furnish any document, return or report to the Board, fails to furnish the same, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less; (b) to file any return or furnish any information, books or other documents within the time specified therefore in the regulations, fails to file return or 117 Section 15 A of the SEBI Act, 1992

23 96 furnish the same within the time specified therefore in the regulations, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less; (c) to maintain books of accounts or records, fails to maintain the same, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less Penalties for failure by any person to enter into agreement with clients if any person, who is registered as an intermediary and is required under this Act or any rules or regulations made thereunder to enter into an agreement with his client, fails to enter into such agreement, he shall be liable to 39[a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less Penalties for failure to redress investor s grievances if any listed company or any person who is registered as an intermediary, after having been called upon by the Board in writing, to redress the grievances of investors, fails to redress such grievances within the time specified by the Board, such company or intermediary shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less Penalty for certain defaults in case of mutual funds Section 15 D and 15 F of the act provide for penalties if any person, who is (a) required under this Act or any rules or regulations made thereunder to obtain a certificate of registration from the Board for sponsoring or carrying on any collective investment scheme, including mutual funds, sponsors or carries on any collective investment scheme, including mutual funds, without obtaining such certificate of registration, he shall be liable to a penalty of one lakh rupees for each day during which he sponsors or 118 Section 15 B of the SEBI Act, Section 15 C of the SEBI Act, Section 15 D and 15 F of the SEBI Act, 1992

24 97 carries on any such collective investment scheme including mutual funds, or one crore rupees, whichever is less. (b) registered with the Board as a collective investment scheme, including mutual funds, for sponsoring or carrying on any investment scheme, fails to comply with the terms and conditions of certificate of registration, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less. (c) registered with the Board as a collective investment scheme, including mutual funds, fails to make an application for listing of its schemes as provided for in the regulations governing such listing, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less. (d) registered as a collective investment scheme including mutual funds fails to dispatch unit certificates of any scheme in the manner provided in the regulation governing such dispatch, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less. (e) registered as a collective investment scheme, including mutual funds, fails to refund the application monies paid by the investors within the period specified in the regulations, he shall be liable to pay a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less. (f) registered as a collective investment scheme, including mutual funds, fails to invest money collected by such collective investment schemes in the manner or within the period specified in the regulations, he shall be liable to a penalty of one lakh rupees for each day during which such failure continues or one crore rupees, whichever is less. (g) If any person, who is registered as a stock broker under this Act fails to issue contract notes in the form and in the manner specified by the stock exchange of which such broker is a member, he shall be liable to a penalty not exceeding five times the amount for which the contract note was required to be issued by that broker; (h) If any person fails to deliver any security or fails to make payment of the amount due to the investor in the manner within the period specified in the