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WTM/SR/SEBI/EFD-DRA2/09/02/2016
BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIA
CORAM: S. RAMAN, WHOLE TIME MEMBER
ORDER
Under Regulations 28(2) read with Regulations 38 (2) of the SEBI (Intermediaries)
Regulations, 2008 against Madhuvan Securities Private Limited (SEBI Registration No.
INB 230823331) in respect of dealings in the scrip of Adani Exports Limited.
_____________________________________________________________________
1. Madhuvan Securities Private Limited ("Madhuvan") is registered with Securities and
Exchange Board of India ("SEBI") as a Stock Broker having SEBI Registration No:
INB 230823331. Madhuvan is a member of the National Stock Exchange of India
Limited ("NSE").
2. SEBI conducted an investigation into the alleged market manipulation and irregularities
in the scrip of Adani Exports Limited (“AEL”) during the period January 1999 to March
1999 in order to ascertain the possible violation of the provisions of the SEBI
(Prohibition of Fraudulent and Unfair Trade Practices relating the Securities Market)
Regulations, 1995 read with the SEBI (Stock brokers and Sub-brokers) Regulations, 1992
by Madhuvan and other entities.
3. It is observed that during the investigation period the price of the scrip of AEL went up
from Rs. 242/- to Rs. 498/- at NSE. On an analysis of trading patterns of members and
clients who traded in the scrip of AEL during the relevant period, it was seen that the
trading was concentrated among three brokers viz., JBS Securities Private Limited
(‘JBS’), Moneycare Securities and Financial Services Limited (‘Moneycare’) and
Madhuvan and their clients. Madhuvan had extensively executed trades in the scrip of
AEL at NSE on behalf of its clients viz., Abhinav Investments Ltd. ('Abhinav') and
Prerak Capital Services Pvt. Ltd. ('Prerak'). Investigation revealed manipulative trade
practices by Madhuvan. In view of the same, Madhuvan has been alleged to have
facilitated the manipulation in the scrip of AEL and violated the provisions of SEBI
(Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market)
Regulations, 1995 (‘PFUTP Regulations’) and SEBI (Stock Brokers and Sub-brokers)
Regulations, 1992 (‘Broker Regulations’).
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4. Based on the findings of the investigation, SEBI vide order dated October 14, 2004,
initiated Enquiry proceedings in terms of the SEBI (Procedure for Holding Enquiry by
Enquiry Officer and Imposing Penalty) Regulations, 2002 (‘Enquiry Regulations’) to
enquire into the alleged violations / contraventions mentioned above. On completion
of the proceedings, the Enquiry Officer, vide Enquiry Report dated August 11, 2005
recommended a penalty of suspension of Certificate of Registration of Madhuvan for a
period of one month.
5. Subsequently, SEBI issued a post enquiry Show Cause Notice dated August 18, 2005
(“SCN”) to Madhuvan under Regulation 13(2) of the Enquiry Regulations. Madhuvan
was advised to reply to the SCN within fifteen days of the receipt thereof. A copy of the
Enquiry Report was also forwarded to Madhuvan along with the SCN.
6. In response, Madhuvan vide letter dated September 28, 2005, inter alia, submitted as
under:
1) "At the outset it is submitted that the show cause notice has been issued to Madhuvan Securities Private
Ltd on the basis of assumptions, without taking into consideration the facts relating to the transactions
put through Madhuvan.
2) The show cause notice issued to Madhuvan has not stated as to which provision of law has been
violated by Madhuvan. A preliminary objection was taken before the Enquiry Officer that the
show cause notice does not refer to specific Regulations which have been violated & therefore the
show cause notice is vague and an opportunity given through a vague show cause notice is no
opportunity in the eyes of law.
3) It is not factually correct for the Enquiry Officer to conclude that the volume increased from 7000
to 8000 shares while in fact the volume had increased from 4000 to 5000 shares. On the basis
of the information given by Madhuvan, the Enquiry Officer on the basis of number of shares sold
and the volume traded has come to a conclusion that the scrip of Adani Exports was being
manipulated from January to March, 1999.
4) It is submitted that the provisions of (Prohibition of Fraudulent and Unfair Trade Practices
relating the Securities Market) Regulations nowhere states that for manipulation in a scrip,
number of trades and volumes are the essential elements of manipulation. In fact the (Prohibition
of Fraudulent and Unfair Trade Practices relating the Securities Market) Regulations, 1995
provides for suggestio falsi (statement of a falsehood), suppressio veri (concealment of truth),
deceit, fraud, non- performance, entering into transactions entered into, with the intention of
artificially effecting the price, non-genuine transactions etc. In none of the provisions of FUTP
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Regulations, volume and number of transactions entered into are considered as an important
parameter in order to conclude that the transactions are manipulative transactions. Inspite of this,
the Enquiry Officer has come to a conclusion that the scrip of Adani Exports Ltd. was being
manipulated. The Enquiry Officer has rightly concluded that the transactions in the scrip of
Adani Exports Ltd are being carried out by two clients which constituted 68% of the trades on
NSE and BSE. There is no finding or evidence to suggest that directors or persons closely
associated directly or indirectly connected with Madhuvan had entered into transactions of Adani
Exports Ltd. It is only two clients who entered into transactions of Adani Exports Ltd.
5) It is submitted that no evidence has been supplied to us to indicate that Madhuvan has acted in
concert with two clients and two other brokers. In fact Madhuvan has no dealings of its own
particularly with JBS Securities Pvt Ltd (JBS) and Money Care Securities Pvt Ltd. (Moneycare).
No director related or employed is connected or associated with either Moneycare or JBS. It is
submitted that Madhuvan has no personal or professional connection with either Moneycare or
JBS. It is submitted that Madhuvan has no information regarding the fact that Abhinav and
Prerak have been reversing their positions on the NSE and BSE so as to create illusory and
artificial volumes. Madhuvan can have information of the reversal of the positions only if
Madhuvan has acted in concert with Moneycare or JBS. In this case at no point of time has
Madhuvan acted in concert with either Moneycare or JBS.
6) Abhinav has put in transactions through Madhuvan for the purpose of buying and selling
securities of Adani Exports Ltd (AEL). However, it s not illegal for a client to buy and sell
shares through same broker.
7) In this case the Enquiry Officer only because of reversal of position of the clients through JBS and
Moneycare has come to a conclusion that there is violation of the provision of FUTP Regulations.
It is respectfully submitted that it is impossible for a broker to know whether his client is reversing
his position through other brokers or entering into transactions with other brokers. In a screen
based trading the clients’ identity is completely preserved. This system has been prescribed by
SEBI. It is not permissible for a broker to have information or come to a conclusion as to whether
his client is buying or selling shares through other brokers.
8) The Enquiry Officer has relied on the chart showing the trades of Abhinav through Madhuvan
& JBS. On the basis of the chart the Enquiry Officer has erroneously come to a conclusion that
trades have been entered into by Madhuvan while acting in concert with JBS and Moneycare for
and on behalf of Prerak and Abhinav. It is submitted that when Abhinav and Prerak carried
out transactions either of buy or sell through Madhuvan, Madhuvan was not at all aware that
through JBS and Moneycare also, Prerak and Abhinav were simultaneously carrying on
transactions in AEL and were the counter parties. In fact the trading platform provided by NSE
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does not permit or does not make it possible for any broker to have information regarding the
name of the counter party, broker or their client. Even after the settlement is over, it is not possible
for the broker to have information regarding the counter party, broker or these clients. The
Enquiry Officer has no evidence to conclude that Madhuvan had information regarding the names
of the counter party, clients or broker. In the absence of evidence, the conclusion arrived at by the
Enquiry Officer is erroneous.
9) On the basis of the chart, the Enquiry Officer has also come to a conclusion that there were
structured and synchronized matching trades in the scrip of Adani Exports Ltd. With reference
to the same, Madhuvan has not entered into matching, synchronized and structured trades.
Madhuvan has only put in trades for on behalf of Prerak and Abhinav. It has no information
regarding the matching of trades done by Abhinav or by anybody else. If at all SEBI wants to
take any action on this transaction it only can seek information from Prerak as well as Abhinav.
The Enquiry Officer has relied on judgment of Securities Appellate Tribunal in the case of
Nirmal Bang Securities (P) Ltd. v/s. SEBI. In the fact of that case it appears that there was
synchronized trading by the counter party brokers. However in this case, Madhuvan has not
entered into any synchronized matching or non-systematic transactions with the same counter
parties.
10) The Enquiry Officer has come to a conclusion that Abhinav and Prerak have entered into trades
through Madhuvan with the tacit understanding of JBS and Moneycare. However, there is no
evidence on record to indicate or to substantiate or to prove that there was tacit understanding,
between Madhuvan with others. These were genuine transactions entered into by Madhuvan on
the strength of the contracts entered into by Madhuvan with its clients.
11) The Enquiry Officer has erred in not appreciating our contention that our turn over in AEL was
hardly 0.44% of the entire turn over. The Enquiry Officer comes to a conclusion that the scrip is
less liquid even then it holds us guilty for market manipulation.
12) It is submitted that any person who carries on market manipulation does so with the intention of
either making money or reducing the loss. In this case, the brokerage earned by us was merely
around Rs. 17,731/-. The profit received by brokerage through transactions for Adani Exports
is 1.27% of the total brokerage earned by us in 3 months and 0.33% of the total brokerage
earned by Madhuvan in 12 months. This miniscule brokerage is hardly an indicator or evidence
of profits earned or losses avoided.
13) It is submitted that the Enquiry Officer has not taken into account our contention that the scrip
of AEL rose to 125% after March. This fact the Enquiry Officer has discounted on the ground
that in the month of March, the scrip of AEL rose to 47%. The Enquiry Officer has erred in
coming to a conclusion that for the purpose of making market manipulation the price rise for a
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particular month in % is to be considered and not other parameters. It is submitted that the
Enquiry Officer has not given credence to our submission that no transactions on behalf of
Abhinav were carried out from March, 1999 i.e., the date from which Abhinav did not agree to
pay margin money to us.
14) It may be mentioned that on behalf of Abhinav and Prerak, there has been no default on the
Stock Market because of these transactions. Abhinav and Prerak have both given deliveries, when
the transactions were delivery based. There has been no default in either pay in or pay out either
by Abhinav or Prerak. Nor has been there any violation of the margin requirement from Abhinav
and Prerak.
15) It is submitted that" our firm is a firm which believes in complying with all provisions of law.
Therefore we have entered into the member client agreement with the clients. Abhinav and Prerak
has taken from us the client agreement form for the purpose of entering into the member client
agreement. Thereafter they informed us on January 27th 1999 and January 21st 1999 that they
are in the process of signing the member client agreement with us. Since they had informed that
they are signing and sending a cross the signed member client agreement form, we have permitted
them to enter into transactions through our firm. However, in future we will ensure that no client
is permitted to put in transactions without signing of the member client agreement form.
16) There is reliance by the Enquiry Officer on the fact that there was squaring of trades in 4
settlements i.e. 05 to 08. Squaring off is permitted by SEBI itself and therefore if a client has put
in transactions which has been squared off than the broker is not carrying any activity which is
prohibited by law.
17) On a perusal of the prices at which the transactions are carried out, it is apparent that the prices
at which the transactions entered into are almost at the prevailing price for that day on the Stock
Exchange. In other words in the scrip of AEL no transactions have been put in on behalf of two
clients at artificial prices. Enclosed and marked as Annexure-2 is a chart which contains the
average price at which Abhinav and Prerak bought and sold securities. The enclosed chart also
shows the total percentage of the quantity traded in by Abhinav and Prerak. It will be apparent
that transactions have been carried out at market rates. The percentage of the transactions being
carried out are also in reducing order.
18) It is submitted that on behalf of Abhinav and Prerak in 2 months 40 transactions have been put
in i.e, around 20 transactions in a month. On the' basis of 40 transactions, it is not possible for
anyone to come to a conclusion that there was market manipulation in this scrip. The Enquiry
Officer has come to a conclusion that there is price manipulation on the ground that scrip doubled
in a period of 2 months. This is because the rise in the scrip is to be viewed in the background of
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the stock market as a whole wherein the market sentiments may be bullish and the prices of
majority of the scrips will increase. transaction was again below 1000 shares.
19) It may be mentioned that while coming to a conclusion that we are guilty of market manipulation
the Enquiry Officer has also added and taken into consideration the gross volumes of JBS as well
as Moneycare. This is not legally permissible and no person can be punished for transactions which
are carried out by independent legal entities with whom we have absolutely no relationship either
professional or personal. The Enquiry Officer has put reliance on the steady growth of volume in
the month of February and March because of this fact the Enquiry Officer has come to a conclusion
that there was market manipulation. This conclusion of the Enquiry Officer is completely
erroneous as in a rising Index the prices of a particular scrip are bound to increase. The increase
of the price in the scrip of AEL has also to be examined keeping in mind over all price rise in
the market and the Indices all over India.
20) On Para 89 the Enquiry Officer really states that "the modus operandi of JBS to manipulate
the scrip of AEL was affected in the following manner..." In other words the Enquiry Officer
has come to a conclusion that JBS had adopted certain modus operandi to manipulate the scrip of
AEL. If JBS has manipulated the market, it is perfectly open for SEBI to initiate proceedings
against JBS for market manipulation. However, if Madhuvan has not manipulated the market,
it is not legally permissible for SEBI to initiate action against us for the transactions entered into
by JBS.
21) The Enquiry Officer has come to a conclusion that we have perpetuated artificial trades and hence
failed to exercise proper skill, care and diligence. We have not perpetuated any artificial trades.
In fact, many trades are delivery based trades and the clients have entered into the trades through
our terminals in a legal and justified manner. For each and every transaction, contract notes and
notices have been issued by us to the clients. Supporting bills for each and every transactions entered
into on behalf of the clients have also been issued. If the intention of Madhuvan was to carry out
fraudulent and manipulative activities and not to transfer beneficial interest then we would not
have promptly issued contract notes and bills.
22) It is submitted that the brokerage charge by Madhuvan is not excessive. This brokerage is as per
the limits permitted by the National Stock Exchange under its rules and regulations. The
brokerage charged by Madhuvan is absolutely reasonable. In fact, the payment terms are also as
per the requirements for SEBI and the National Stock Exchange.
23) The Enquiry Officer has come to a conclusion which is far beyond what is stated in the
investigation report. The investigation report concluded that "Madhuvan has facilitated the
manipulation in the scrip of AEL". However the Enquiry Officer instead of concluding that has
gone beyond that and wrongfully concluded that we have facilitated the market manipulation.
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24) The Enquiry Officer has in the enquiry report taken contradictory stands. In Para 84 of the
report, the Enquiry Officer has come to a conclusion that "no blatant nexus between the entities
involved in the case has been brought out" Inspite of these findings of fact the Enquiry Officer
comes to a conclusion that Madhuvan has entered into transactions with tacit understanding and
are also acting in concert with two other brokers.
25) With reference to our submission regarding absence of specific provisions in the show cause notice,
they have simply been brushed aside by concluding that even a lay man can understand that the
violation and charges pertain to the provisions of the FUTP Regulations. The Enquiry Officer
has erred in not appreciating that it is an obligation cast on the organization to issue a show cause
notice specifically mentioning the provisions of law which have been violated. If specific provisions
of law are not mentioned then, the show cause notice suffers from the charge of vague and in
accordance with the law. The Enquiry Officer has in Para 91 come to a conclusion that
Madhuvan has failed to exercise proper skill, due care and diligence required of a broker on the
grounds that Madhuvan has perpetuated artificial trades. The meaning of the word perpetuated
is "safe, maintain, sustain". There can be no question of market manipulation arising because of
perpetuating artificial trades. Therefore the Enquiry Officer's conclusion that Madhuvan has not
maintained standards of integrity, fairness required of a broker is not warranted.
26) It is submitted that the Enquiry Officer has come to a conclusion that JBS has not carried out
their transactions in accordance with law and they are guilty of manipulating the market. After
factually concluding this, the Enquiry Officer has thereafter erred in coming to a conclusion that
we should be held responsible for the transactions of JBS and we should be punished for violating
the provisions of the Regulations.
27) The show cause notice has been issued for the violation of the Provisions of (Prohibition of
Fraudulent and Unfair Trade Practices relating to the Securities Market) Regulations, 1995 as
well as SEBI (Stock brokers and Sub-brokers) Regulations, 1992. It is submitted that the
Prohibition of Fraudulent and Unfair Trade Practices relating the Securities Market,
Regulations, 1995 have been repealed by Securities & Exchange Board of India in 2003. SEBI
has thereafter been pleased to notify the provisions of the SEBI (Prohibition of Fraudulent and
Unfair Trade Practices relating to the Securities Market) Regulations, 2003 (hereinafter known
as FUTP Regulations).
28) As is apparent on a reading of the Provisions of Regulations 13, the Investigations which have
been proceeded or undertaken under the Provisions of the SEBI FUTP Regulations, 1995 have
been saved. It is against this provision of law that SEBI's investigation against Madhuvan has
to be examined. Enclosed and marked as Annexure 4 is a copy of the summon which Madhuvan
has received from SEBI in the year, 1999.
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29) The opening lines of the summon dated 12th July, 1999 reads as follows:-"Whereas your
attendance is required in connections with the investigations instituted by SEBI in the case of
buying, selling or dealing in the shares of M/s. Adani Exports Ltd" The first lines of the summon
makes it very clear that the investigation have been initiated by SEBI for buying, selling or dealing
in shares of AEL. On reading of the summon, it is clear that Madhuvan was not under
investigation. What was under investigation by SEBI was the dealing in shares of AEL.
Madhuvan was summoned to give information to SEBI in the investigation of AEL. As
Madhuvan was not under investigation, the provisions of Regulations 13 of the SEBI
(Prohibition of Fraudulent and Unfair Trade Practices relating the Securities Market)
Regulations, 2003 cannot be invoked vis-a-vis Madhuvan. It is not legally permissible for SEBI
to invoke the provisions of Regulation 13, stating that investigation have already been initiated
against Madhuvan and therefore the investigations have been initiated under the Regulations of
1995 SEBI cannot proceed against Madhuvan under the provisions of FUTP Regulations,
2003.
30) It is further submitted that the Enquiry Officer in her report has nowhere relied on the provisions
of Regulation 13 of the FUTP Regulation of 2003. If SEBI and the Enquiry Officer both have
not relied on provisions of Regulations, 13 of the SEBI (Prohibition of Fraudulent and Unfair
Trade Practices relating the Securities Market) Regulations, 2003, then proceedings are bad in
law and should not be proceeded ahead with as there is no other savings clause.
31) The Enquiry Officer has concluded that we are guilty of violating the provisions of Regulations
4(2) (a)&(b) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating the
Securities Market) Regulations, 2003. It is submitted that Regulation, 2003 will have no
applicability in the facts of the case. The said transactions have taken place in the year, 1999
when the Regulations of 2003 were not even notified. Therefore the Enquiry Officer has erred in
holding us guilty of violating the provisions of Regulations, 2003.
32) Even assuming without admitting that the provisions of the Regulations, 2003 are applicable,
then the Enquiry Officer has relied on clause (a) & (b) of Regulation 4(2). Clause (a) deals with
a situation where an entity indulges in an act which creates a false or misleading appearance of
trading. In almost all cases, the transactions are delivery based. In many cases the transactions
have been squared off. The fact that the transactions have been squared off does not mean that
these transactions are manipulative in nature. In the Stock Market squaring off transactions is a
very normal activity and is a speculation which is permissible by law and also permitted by SEBI.
33) The Enquiry Officer has also relied on the provisions of Clause (b) of Regulation 4 (2) of the
Regulations. The Regulation 4 (2) (b) deals with a situation where there is no transfer of beneficial
ownership and a device which has been adopted with an intention to cause fluctuations in the price
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of security for gains or avoidance of losses. For this clause to be applicable, it is essential that there
is a device with an intention to cause fluctuations in the prices of the Company with wrongful gains
or avoidance of losses. However none of these elements are present in the transactions of Madhuvan.
34) Madhuvan has made no gains nor has Madhuvan avoided any losses. Further Madhuvan has
not dealt in the securities with the intention of causing fluctuations in the prices. The transactions
have been put in through Madhuvan because the clients were desirous of buying selling the
securities. There has been no intention to cause fluctuations in the prices nor is there any evidence
with Enquiry Officer to conclude that there was an intention of market manipulation. As a result
of the above submissions, the provisions of Regulations 4 (2) cannot be made applicable or invoked
in the case of Madhuvan.
35) In the show cause notice, Madhuvan has further been asked to explain as to why consequential
action under Regulations 3 (2) of SEBI (Criteria for Fit and Proper Person) Regulations, 2004
should not be initiated against Madhuvan. It is submitted that these Regulations are applicable
for the purpose of determining as to whether the intermediary is fit and proper person for grant of
registration or renewal. Thereafter it is further submitted that Regulations 3 of the said Regulation
deals with an application made by the intermediary seeking registration. In this case Madhuvan
is not seeking registration at all and therefore the provisions of Regulations 3 will not be applicable
in the facts of the case. It is not legally permissible for SEBI to invoke these Regulations at this
stage.
36) It is submitted that we have presence in Stock Market since 1995, we have been taking margins
from our clients as required by SEBI and NSE. We have abided by all the rules and regulations
of SEBI. We have also paid fees as required by SEBI. Till today, we have not received a single
letter from SEBI nor an enquiry as to whether we have complied with the law or not. As a
brokerage firm, we believe in complying with rules and regulations. In this case also, we have
permitted 2 clients to enter into transactions though our terminals. As far as we are concerned we
have no link with the entities nor do we have understanding with any of the entities. It is not a
case where a penalty of 1-month Suspension should be imposed on us. We have not committed
any offence what so ever. We have around 1000 clients spread over in Gujarat in Urban as well
as Rural areas. Our terminal in the Rural area of Gujarat i.e, in Petlad is a terminal which
though situated in a Rural area caters to persons who have tremendous appetite for the securities
market as well as the money to be able to transact in the securities markets. This penalty will
therefore affect the ability of the investors in the Rural area to carry out transactions in the securities
market. We also have presence in Mumbai. Therefore, immense loss will be suffered by our clients
if the penalty as proposed by the Enquiry Officer is imposed on us.
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7. Subsequently, Madhuvan applied for consent during September 2007. However, the said
application was rejected by SEBI on December 24, 2008. Thereafter, an opportunity of
hearing was granted to Madhuvan on July 12, 2011 before the Whole Time Member of
SEBI. Thereafter, an opportunity of personal hearing was granted before me on
September 02, 2015 vide hearing notice dated August 19, 2014. Madhuvan vide letter
dated September 01, 2015 sought extension of time for hearing. The same was allowed
and another opportunity of hearing was granted to Madhuvan on October 07, 2015 vide
hearing notice dated September 10, 2015. Mr. Vijay Ranjan, Advocate and Mr. Ashish
Vyas, Director appeared before me and made submissions. Madhuvan was granted time
upto October 16, 2015 to file written submissions, if any, and with its specific
submissions on self trades by Abhinav executed through Madhuvan. Subsequently,
Madhuvan filed written submissions vide letter dated October 14, 2015, inter alia, making
submissions as under:
� During the course of hearing it was pointed out by the Officers representing SEBI that we
had provided our platform for self trade to Prerak and Abhinav. As can be seen from the
table in none of the trades listed in the table, the clients have bought and sold the very same
lot of shares through our platform. For example, in settlement no.1999005, in the first trade
of the list Abhinav bought 10,000 shares through JBS and sold that 10,000 through us.
As submitted by us during the course of hearing as well, in the settlement cycle of T +5 it
was well neigh impossible for us to suspect the above mentioned sale. Similarly, in every other
trade listed in the table, the shares have either been bought or sold through our platform but
never the same lot has been bought and sold through us. It may kindly be appreciated that in
the trades listed in the table there is nothing which can be alleged as a mis-conduct on our
part. In this regard, Madhuvan relied on para-wise reply filed to SCN submitted
earlier. The same is reproduced at paragraph 6(8) in this order.
Madhuvan also relied on the following decisions:
� Khandwala Securities Limited. SEBI order no. WTM/PS/39/IVD/ID-04/FEB/10
dated 1.2.2010) Charge of executing 82 synchronized deals for 1,30,000 shares on NSE
which allegedly created artificial volumes and price rise in the shares of Sunearth. NO
PENALTY IMPOSED on the ground that there was no evidence to show any
link/collusion between the noticee and the counter party brokers involved in alleged
synchronicsed /structured /reversal trades. There is no collusion between the noticee and the
client and there was no instance of proprietary trade in scrip of Sunearth.
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Note : The reasons why no penalty was imposed on the broker such as no evidence of
collusion between the broker and the client and finally no instance of proprietary trade are all
also present in the case of MSPL.
� GSB Capital Markets Limited. SEBI Order dated October 28, 2004- trading in the scrip
of Morpen Hotels Ltd.- Sudden spurt in volume- mostly squaring of position during
settlement- one client responsible for 90% of transaction in the shares of MHL- creation of
artificial volume- total transaction 4,87,700 shares-net position 300 shares-client traded only
in two scrips through the broker-
Given the above context and considering also that the turnover of the client in
MHL was insignificant as compared to a turnover of a broker, it does not appear to be fair
to assume that the broker without undue difficulty and with ordinary diligence, would have
been in a position to readily zero in on or segregate the transactions of the said clients and
quickly establish their suspicious nature. Hence, I am of the view that suspension of certificate
or registration granted to the said broker for a period of two months would be excessive.
Considering the circumstances, imposition of penalty or warning would be adequate to meet
the ends of justice.
� Note: The principle laid down in the above case to reduce the proposed penalty of suspension
to mere warning is squarely applicable in the case of Madhuvvan. In normal course of
business, with normal diligence, it was not possible to detect the “taint” attached to the
transactions of Abhinav or Prerak. The volume in the shares of AEL was insignificant in
the total turnover of Madhuvan and it would be unfair to assume that without undue difficulty
and with ordinary diligence, Madhuvan would have been in a position to readily zero in on
or segregate the transactions of Abhinav and Prerak and quickly establish their suspicious
nature.
8. I note that Enquiry Regulations under which the instant proceedings were initiated
were repealed and SEBI (Intermediaries) Regulations, 2008 (‘Intermediaries
Regulations’) were notified. In this regard, reference is made to Regulation 38 (2)of
the Intermediaries Regulations which reads as under:
"Notwithstanding such repeal, anything done or any action taken under those regulations
including an enquiry commenced or notice issued under the Securities and Exchange Board of
India Procedure for Holding Enquiry by Enquiry Officer and imposing Penalty) Regulations,
2002, before the publication of these regulations in the Official Gazette, shall be deemed to have
been done or taken or commenced under the corresponding provisions of these regulations".
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In view of aforesaid provision, the proceedings has been continued against Madhuvan
and the same is culminated under Regulation 38 (2) of the Intermediaries Regulations.
9. I have considered the facts of the case, the findings of the investigations, the
observations and findings made by the Enquiry Officer, reply of Madhuvan and oral and
written submissions made before me during the personal hearing and all other relevant
material available on record. In the light of the same, I shall now deal with the charges
levelled against Madhuvan.
10. The issue for consideration in this case is whether Madhuvan facilitated the
manipulation in the scrip of AEL and violated Regulation 4(2) (a) and (b) of PFUTP
Regulations 2003 read with corresponding provisions in Regulation 4(b) and (d) of the
PFUTP Regulations 1995(repealed) and Regulation 7 of the Brokers Regulations.
11. Before dealing with the aforesaid violations, the relevant legal provisions, the
contravention of which have been alleged in this case may be reproduced hereunder
for the purpose of reference:
PFUTP Regulations 2003
4. Prohibition of manipulative, fraudulent and unfair trade practices
(2) Dealing in securities shall be deemed to be a fraudulent or an unfair trade practice if it involves
fraud and may include all or any of the following, namely:—
(a) indulging in an act which creates false or misleading appearance of trading in the securities
market;
(b) dealing in a security not intended to effect transfer of beneficial ownership but intended to
operate only as a device to inflate, depress or cause fluctuations in the price of such security for
wrongful gain or avoidance of loss;
PFUTP Regulations 1995(repealed)
4. No person shall -
(b) indulge in any act, which is calculated to create a false or misleading appearance of trading on
the securities market;
(d) enter into a purchase or sale of any securities, not intended to effect transfer of beneficial
ownership but intended to operate only as a device to inflate, depress, or cause fluctuations in the
market price of securities;
Brokers Regulations:
Stock-Brokers to abide by Code of Conduct.
Page 13 of 21
Regulation 7. The stock-broker holding a certificate shall at all times abide by the Code of
Conduct as specified at Schedule II.
12. As regards the charges that Madhuvan facilitated the manipulation in the scrip of AEL,
the dealings of Madhuvan in the scrip of AEL and the findings as regards the alleged
violations are as under:
i. SEBI's investigations revealed that during the investigation period i.e. from
January to March 1999, the price of the scrip of AEL shot from Rs.242/- to
Rs.498/- and the volume increased from 400 shares per day to 7000 – 8000
shares per day. The number of trades also increased from 4 – 9 trades per day
to 40 - 60 trades per day. The price volume data of the scrip of AEL on NSE
and BSE during the relevant period is as under:
NSE BSE Date Price(Rs.) Volume (No.
of Shares) Price (Rs.) Volume(No.of
Shares) 1999 High-Low High-Low 1/1-15/1 231-245 8600 235-250 4000 18/1-29/1 247-284 28800 250-305 36700 1 /2-5/2 285-295 59600 285-307 53800 16/2-27/2 280-335 67000 270-340 52300 1/3-15/3 361-427 60500 345-440 42700 16/3-31/3 428-498 42400 426-500 24900
ii. Upon analyzing the trading pattern as brought in the investigations, I find that
the trading in the scrip during the relevant period was concentrated among
three brokers viz., JBS Securities (JBS), Moneycare Securities and Madhuvan
and three clients viz., Anand Investments, Abhinav and Prerak who had dealt
through these three brokers. The trades done by these three clients were
approx. 68% of the total trades in NSE and BSE. Details of the total trades are
as under:
Total (One Side - Purchase or sale) during Three Clients Combined
the period January 1, 1999 to March 31,
1999
NSE 266900 164600 (61.7%)
BSE 214400 165100 (77%)
Total 481300 329700 (68.5%)
Page 14 of 21
iii. The transactions of the aforementioned brokers as a whole during the relevant
period are as under:
Settlement No.
Total Traded Quantity
Total of three Members
Gross Buy % of Total Gross Sell % of Total
9905 29700 27000 90.91% 25700 86.53% 9906 28100 25200 89.68% 21300 75.80% 9907 31200 26300 84.29% 23700 75.96% 9908 35300 32200 91.22% 23900 67.71% 9909 33600 11300 33.63% 8900 26.49% 9910 27100 13300 49.08% 6800 25.09% 9911 21800 8500 38.99% 6900 31.65%
iv. The details of reversal trades of Prerak and Abhinav in the scrip of Adani
executed through the brokers JBS, Moneycare and Madhuvan are as under:
Members JBS Security Madhuvan Security Moneycare Settlement No (time period
Buying Client Selling Client Buy Sell Buy Sell Buy Sell
1999005 Abhinav Abhinav 10000 10000 (3/2-9/2) Abhinav Abhinav 10500 10500 Abhinav Prerak 700 700 Abhinav Prerak 1500 1500 Prerak Abhinav 2000 2000 Prerak Abhinav 500 500 1999006 Abhinav. Prerak 1900 1900
(10/2-16/2) Abhinav Abhinav 7300 7300 Abhinav Abhinav 9400 9400 Prerak Abhinav 2000 2000 1999007 Abhinav Abhinav 7500 7500 (17/2-23/2) Abhinav Prerak 2500 2500 Abhinav Abhinav 9000 9000 Abhinav Prerak 1000 1000 Prerak Abhinav 2500 2500 1999008 Prerak Abhinav 1800 1800 (24/2- 1/3) Abhinav Abhinav 7300 7300 Abhinav Prerak 2000 2000 Abhinav Prerak 1500 1500 Abhinav Abhinav 6300 6300 1999009 Abhinav Abhinav 700 700 (3/03- 9/03 Abhinav Prerak 400 400 Abhinav Abhinav 2200 2200 Abhinav Prerak 400 400
v. From the investigation, I further find that the clients Abhinav and Prerak had
indulged in self trades and reversal of their positions on NSE and BSE either
Page 15 of 21
during the same settlement itself or in succeeding settlements and thereby
enhanced and created illusory volumes and misleading appearance in the
market. These transactions gave misleading appearance of volume and
enhanced liquidity. Orders were entered into the system within a gap of few
seconds /minutes. This ensured that the buyers got the desired sellers and vice
versa. Hence, it is clearly established that there were synchronization of orders.
vi. From the abovementioned table it is seen that in settlement number 1999005,
Abhinav purchased 12,000 shares through Madhuvan and sold 12,000 shares
through Madhuvan . In the same settlement number, Prerak had bought 2500
shares through Moneycare, while Abhinav sold the shares i.e. 500 shares
through JBS Securities and 2000 shares through Madhuvan. Similarly when
Prerak sold its 2200 shares through Moneycare, a total of 2200 shares were
purchased by Abhinav i.e. 700 shares through JBS and 1500 shares through
Madhuvan. In settlement number 1999006, there were reversal of trades
between Prerak and Abhinav. Abhinav bought 1900 shares through JBS and
Prerak sold 1900 shares through Moneycare. Similarly, when Prerak bought
2000 shares through Moneycare, it was Abhinav who sold the said shares
through Madhuvan. Transactions of similar nature were observed between
Prerak and Abhinav in next settlements 1999007, 1999008 and 1999009. These
dealings of clients executed through three brokers clearly establish the nature
of manipulation done by the clients.
vii. There were reversal of position between JBS and Madhuvan for the same client
i.e. they were buying and selling for the same client. When JBS was buying,
Madhuvan was selling and vice versa.
viii. There were some trades executed by Madhuvan and JBS on behalf of Abhinav
and Prerak, where there was proximity in the time of logging the buy and sell
orders for the same price and same quantity. The details of such instances are
as follows:
Date Trade time Trade
Price
Qty Buying Broker
Selling
Broker
Buy
Time
Buy
Qty
Buy
Rate
Sell Time Sell
Qty
Sell Rate Time
diff
3.2.99 11:11:20 290.00 500 MADHUVAN JBS 11:11:20 500 290.00 11:10:25 500 290.00 0:00:53
3.2.99 11:11:33 291.00 500 MADHUVAN JBS 11:11:33 500 291.00 11:10:32 500 291.00 0:01:01
3.2.99 11:11:47 292.00 500 MADHUVAN JBS 11:11:47 500 292.00 11:10:38 500 292.00 0:01:09
4.2.99 11:55:57 290.15 500 MADHUVAN JBS 11:55:51 500 290.15 11:55:06 500 290.15 0:00:45
5.2.99 15:09:39 287.50 500 MADHUVAN JBS 15:09:34 500 288.00 15:08:29 500 287.50 0:01:05
8.2.99 14:51:26 289.00 500 MADHUVAN JBS 14:51:26 500 289.00 14:49:46 500 289.00 00:01:4
Page 16 of 21
ix. From the above table it is evident that there was a matching of the buy and the
sell quantity and the buy and the sell price. The buy and the sell orders were
placed at almost the same time between the two brokers on behalf of Abhinav
and Prerak, with just a difference of a minute. This proximity in the inputting
of orders at the same price and quantity, resulted in getting them matched.
Hence, it is evident that these transactions were structured and synchronized.
By doing so, Madhuvan facilitated its clients to create liquidity and volume of
shares in the scrip of AEL.
x. The details above show that while executing the above trades, there was some
prior arrangement between the brokers and clients which had resulted in
creation of higher volumes in the shares of AEL in the market.
13. Madhuvan has made various submissions and let me now deal with these:
13.1. Madhuvan has contended that it was not aware of the identity of the
counter party and the reversal transactions done by its clients. This
contention of Madhuvan is untenable as it cannot be a mere coincidence
that there were perfect matching of the time, order and price in many
instances as cited above. In all these occasions, it is interesting to note that
the clients were the same. This clearly shows a concerted effort between
these clients and brokers.
i. In this regard, it is pertinent to mention that the Hon’ble Securities
Appellate Tribunal in the matter of Galaxy Stock Broking Limited
Vs. SEBI Appeal No. 3 of 2010 (decided on January 29, 2010) held
that “it is a clear instance of reverse trades which cannot on the trading system
unless the clients and the brokers are in league with each other. There are several
trades executed by the appellant. Adjudication proceedings were initiated
against the appellant and its client and they were both found guilty of
synchronizing the trades and for executing circular and reverse trades.”
ii. It would also be relevant to the following observations made by
the Hon’ble Securities Appellate Tribunal in the matter of Jitendra
Harijivandas Securities Pvt. Ltd Vs. SEBI Appeal No. 7 of 2013
(decided on March 06, 2014) “Appellant had acted in a manner, which
was manipulative of securities market and had through his remisier and three
clients of Mahesh Mistry Group had substantive share in purchase/sale i.e.
Page 17 of 21
total trading volume in scrip of BGSL during investigation period, was
instrumental in placing synchronised trades and self trades on behalf of his
clients, he allowed his platform of trading in securities market, for being used
by his clients to place orders at above Last Traded Price, which gave rise to
increase in price of scrip based on false volumes being generated by
circular/self/synchronised trades and by allowing one account of his one client
being utilised for making payment to diverse members of Mahesh Mistry
group….” “Accordingly, it is proved that Appellant was aiding and abetting
a group of clients in placing circular/self/synchronized trades, which created
volumes in an illiquid scrip and also placed order at higher than Last Traded
Price to increase price of BGSL scrip, when there were no good results coming
from BGSL or change in fundamental of BGSL to attract investors interest
and hence Appellant has rightly been penalized for violation of PFUTP
Regulations and SEBI (Stock Brokers and Sub-Brokers) Regulations.”
13.2. It is noted that Madhuvan has submitted that the pre-enquiry SCN was
vague and did not mention the exact violation of the provisions of the law.
I have perused the pre-enquiry SCN and note that the said SCN alleges
violation of Regulation 4 of the PFUTP Regulations 1995 and Regulation
7 of the Brokers Regulations in general. It is to be mentioned that the
ingredients of the Regulations 4 (b) and (d) of the PFUTP Regulations,
1995 and Regulations 4 (2) (a) and (b) of PFUTP Regulations, 2003 are
similar. In view of the same, I find that there is no ambiguity regarding the
charges levelled against Madhuvan.
13.3. Madhuvan has raised an objection that enquiry proceedings were initiated
for the violations of PFUTP Regulations 1995 which was repealed and
continuation of proceedings hence bad in law. Madhuvan has also
contended that the Enquiry Officer in the Enquiry Report has nowhere
relied on the provisions of the Regulation 13 of the PFUTP Regulations
2003.
I do not agree with the contentions of Madhuvan. It is noted that
during the investigation period i.e. January 1999 to March 1999, the
PFUTP Regulations, 1995 were in force. The PFUTP Regulations, 1995
were repealed with effect from July 17, 2003, PFUTP Regulations, 2003
were notified and came into effect. The investigations in the matter
Page 18 of 21
continued till July 2004 and the Enquiry Officer was appointed on October
14, 2004 in terms of the Enquiry Regulations when PFUTP Regulations,
2003 were in force. By virtue of Regulation 13 of the PFUTP Regulations
2003, "any violation of regulations 3, 4, 5 and 6 of the PFUTP Regulations, 1995
shall be investigated and proceeded against in accordance with the procedure laid down
in the Regulations 2003. Further, any investigation pending at the commencement of
Regulations 2003 shall be continued and disposed of in accordance with the procedure
laid down in the said regulations". Therefore, I am of the view that even if there
is no reference to the power of SEBI to continue the proceedings under
PFUTP Regulations 2003, it does not vitiate the instant enquiry
proceedings.
In this context, it would be relevant to refer to the observations
made by the Hon'ble Supreme Court of India in its judgment dated
February 01, 2001 in the matter of BSE Brokers Forum vs. SEBI ([2001]
30 SCL 31) “it is a well-established principle in law that so long as the impugned
power is traceable to the concerned Statute, mere omission or error in reciting the correct
provision of law does not denude the power of the authority of taking a statutory action
so long as its action is legitimately traceable to a statutory power governing such action”.
In view of the above, I find that the instant proceedings are clearly
saved by virtue of Regulation 13 of the PFUTP Regulations, 2003.
Therefore, contentions of Madhuvan are untenable.
13.4. Madhuvan has also contended that “as per the summon dated 12th July, 1999
Madhuvan was summoned in connections with the investigations instituted by SEBI in
the case of buying, selling or dealing in the shares of M/s. Adani Exports Ltd. On
reading of the summon, it is clear that Madhuvan was not under investigation. What
was under investigation by SEBI was the dealing in shares of AEL. Madhuvan was
summoned to give information to SEBI in the investigation of AEL. As Madhuvan
was not under investigation, the provisions of Regulations 13 of the SEBI (Prohibition
of Fraudulent and Unfair Trade Practices relating the Securities Market) Regulations,
2003 cannot be invoked vis-a-vis Madhuvan”.
I do not find any merit in this contention. SEBI initiated
investigation in respect of the buying, selling and otherwise dealing in the
shares of AEL. SEBI issued Summons dated July 12, 1999 to Madhuvan.
The investigations clearly revealed that Madhuvan was one of the major
Page 19 of 21
trading members in the scrip of AEL during the investigation period. Its
clients Abhinav and Prerak accounted for the majority of the trades done
in the scrip of AEL. In this context, SEBI issued summons dated July 12,
1999 to Madhuvan to investigate into its dealings in the scrip as a stock
broker. Madhuvan was surely one of the entities who were under
investigation and hence proceedings against it are saved under Regulation
13 of PFUTP Regulations 2003.
13.5. Madhuvan has contended that Regulation 4 (2) (b) is not applicable to the
instant case as there were no elements of intention to cause fluctuations in
the prices of the Company with wrongful gains or avoidance of losses. I
do not find any merit in this contention. I find that the intention is manifest
from the pattern of trades executed for the clients as detailed in the
preceding paragraphs of this order.
13.6. Madhuvan has contended that Regulations 3 (2) of SEBI (Criteria for Fit
and Proper Person) Regulations, 2004 is not applicable in the instant case.
In this regard, it is noted that criteria of being fit and proper person to act
as intermediary is a continuous requirement for intermediaries. The same
is reproduced hereunder for reference:
“A person shall not be considered as a" fit and proper person" for the purpose of grant
or renewal of certificate to act as an intermediary or to continue to act as an intermediary
under any one or more of the relevant regulations, if he incurs any of the following
disqualifications…” In view of this, I find that the contention of Madhuvan
that Regulations 3 (2) is applicable only when seeking registration or
renewal is incorrect.
14. Considering the facts and circumstances narrated above, I am of the view that
Madhuvan has facilitated the clients to execute structured and self trades which created
volume in the scrip of AEL. Hence, the violations of Regulation 4 (2) (a) and (b) of
the PFUTP Regulations 2003 (corresponding to Regulation 4 (b) and (d) of the PFUTP
Regulations 1995) against Madhuvan stands established.
15. As regards the violations of Brokers Regulations, I note that as a Stock Broker
Madhuvan should have adhered to the mandatory provisions of SEBI Act and
Regulations made thereunder. They should have been more careful and cautious to
ensure that the transactions which were fraudulent and manipulative in nature were
not executed through it. Considering the same, I am of the view that Madhuvan has
Page 20 of 21
failed to exercise due care and diligence while executing trades on behalf of its clients
and as such violated the provisions of Regulation 7 read with Code of Conduct for
Stock Brokers specified in Schedule II of the Brokers Regulations.
16. I note that Madhuvan has been in business since 1995 and they have not been
subjected to any disciplinary proceedings except in this case and that there have been
no investor complaints against them till date.
17. The following facts are pertinent to be noted:
i. This case pertains to the transactions which took place during January to March
1999.
ii. Madhuvan had not executed any proprietary trades in the scrip of AEL.
iii. Other than a broker-client relationship, no concrete connection between
Madhuvan and its clients has been alleged in the Enquiry Report.
iv. Proceedings under Section 11B of the SEBI Act initiated against the client of
Madhuvan viz., Abhinav were disposed of vide SEBI's order dated October 24,
2007 by which Abhinav was debarred for a period of 6 months. Enquiry
proceedings initiated against Prerak were disposed of vide order dated
September 25, 2008 by which Prerak was suspended for a period of 5 working
days.
v. Enquiry proceedings were initiated against JBS and Moneycare for manipulation
in the scrip. While the enquiry against JBS was disposed of by a consent order
dated October 8, 2008; the enquiry against Moneycare was disposed of by SEBI's
order dated February 20, 2008 by which the certificate of registration of
Moneycare was suspended for 1 day.
vi. Madhuvan has been in business since 1995 and they have not been subjected to
any disciplinary proceedings except in this case and that there have been no
investor complaints against them till date.
18. All things considered, I am of the view that the matter may be allowed to rest with a
prohibition to take up new assignments for a period of five working days.
Page 21 of 21
Order
19. I, therefore, in exercise of the powers conferred upon me by virtue of Section 19 of
Securities and Exchange Board of India Act, 1992 read with Regulation 28(2) of the
Intermediaries Regulations, hereby prohibit Madhuvan Securities Private Limited to
take up new assignments for a period of five working days.
20. The enquiry proceedings initiated against Madhuvan is disposed of accordingly.
21. This Order shall come into force on the expiry of 21 days from the date of this order.
February 15, 2016 S. RAMAN
Mumbai WHOLE TIME MEMBER
SECURITIES AND EXCHANGE BOARD OF INDIA
