2021 (10) TMI 1481 - AT - SEBI

Promoter penalized under s.15HA for share-price manipulation; found to breach Regulations 3(a)-(d), 4(1), 4(2)(a) - appeal dismissed

AT upheld imposition of a penalty under s.15HA, finding on preponderance of probabilities that the appellant, a promoter, participated in share-price ... Imposition of penalty u/s 15HA - manipulation of the price of the shares - preponderance of probability - violation of the provisions of Regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) of SEBI PFUTP Regulations - appellant belatedly defended during arguments only, that he sold shares as he was in need of funds for his daughter’s marriage - HELD THAT:- It is nobody’s case that the rise in the price of the shares was justified by any fundamentals of the company. On the other hand, the show cause notice records that certain announcements were made by the company but those were not fulfilled and announcement of the non-fulfillment was even not made by the company later on. The appellant – the promoter of the Company- in his reply to this show cause notice did not deny this fact. The appellant is connected to Rajiv Kumar Agarwal who had entered into dubious transaction with Chetan Dogra. Said Chetan was a conduit used for manipulation in the price of the shares. Fundamentals of the company are not claimed by the appellant to have undergone any favourable change to justify spurt in the price of the shares. The explanation of the appellant as to why he needed to sell the shares is belated one. He is the beneficiary of the manipulation. Taking into consideration all these facts, on preponderance of probabilities it can very well be concluded that the appellant was part of the big picture in the manipulation of the price of the shares of the company. Appeal is hereby dismissed without any order as to costs. ISSUES PRESENTED AND CONSIDERED 1. Whether the appellant's actions constituted manipulation of the share price in breach of Regulations 3(a), 3(b), 3(c), 3(d), 4(1) and 4(2)(a) of the PFUTP Regulations and attracted penalty under Section 15HA of the SEBI Act. 2. Whether the appellant's sale of shares during the period of abnormal price rise, purportedly for personal exigency (daughter's wedding), negates liability for participation in manipulation or constitutes a plausible defence. 3. Whether the documentary and transaction evidence showing connections (common addresses, mobile numbers, transfer patterns, share flow and contribution to buy/sell volumes and price) suffices on the preponderance of probabilities to hold the appellant liable, notwithstanding precedents requiring cogent proof. 4. Whether mere factual connections (association with key managerial personnel and promoter group members) without direct active role suffice to establish culpability for fraudulent/market-manipulative conduct in the particular factual matrix. 5. Whether a belated explanation raised first in appeal (and not in reply to the show cause notice or at personal hearing) can be accepted to rebut the inference of manipulation. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Liability for market manipulation under PFUTP Regulations and penalty under Section 15HA Legal framework: Violations of Regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) of the PFUTP Regulations (prohibition on fraudulent and unfair trade practices) attract monetary penalty under Section 15HA of the SEBI Act where a person is found to have indulged in fraudulent or manipulative practices. Precedent treatment: Earlier decisions emphasize requirement of cogent and convincing evidence to establish manipulation (referred to decisions analogous to HB Stockholdings and DLF), but allow inference of manipulation from cumulative circumstantial evidence where fundamentals do not justify price movement. Interpretation and reasoning: The Court assessed transactional records showing (i) dramatic price increase without supporting corporate fundamentals, (ii) transfer of pledged shares by an intermediary to entities who aggressively traded to push price, (iii) common connections via mobile numbers and addresses among the trading entities, and (iv) quantified contribution of those entities to gross buy/sell volumes and price. The appellant, a promoter, sold 14,000 shares during the price rise and gained an undue profit roughly equal to the imposed penalty. The record shows promoter group members collectively off-loaded substantial quantities during the surge. On the preponderance of probabilities, these facts form a cogent matrix from which participation in and benefit from manipulation can be inferred. Ratio vs. Obiter: Ratio - where (1) price movement lacks fundamental justification, (2) a pattern of transfers and concentrated trading by connected entities is established, and (3) promoter group members materially benefit by selling during the surge, the inference of manipulation is sustainable and attracts Section 15HA penalty. Obiter - peripheral observations about the dubious nature of the loan-against-shares transaction and intermediary behavior supplement but are not the sole basis of the finding. Conclusion: The Court concluded that the appellant's conduct, when placed in the entire factual matrix, constituted participation in a manipulative scheme and warranted imposition of penalty under Section 15HA. Issue 2 - Effect of claimed personal exigency (sale for daughter's wedding) on liability Legal framework: Legitimate trading or sale for personal reasons is not per se unlawful; however, the burden of proof to demonstrate bona fide, contemporaneous justification rests on the alleged actor and must be put forward at the appropriate stage (reply to show cause / personal hearing) to be weighed against circumstantial evidence of manipulation. Precedent treatment: Authorities cited establish that transactions which are bona fide and explained may negate liability; however, courts require credible and timely explanations, and will not lightly accept after-thought defences raised first on appeal. Interpretation and reasoning: The appellant did not furnish the asserted wedding exigency explanation in reply to the show cause notice or at the personal hearing; it was raised for the first time in the appeal. The Court found this explanation belated and uncorroborated by contemporaneous evidence. Given the wider picture - absence of fundamental justification, promoter group off-loads, intermediary transfers and connected trading - the late personal exigency plea could not undermine the inference of manipulation. Ratio vs. Obiter: Ratio - belated explanations raised only in appeal, unsupported by contemporaneous documentary evidence, are insufficient to rebut an established circumstantial case of manipulation. Obiter - mention that bona fide personal needs may exculpate where supported by credible contemporaneous evidence. Conclusion: The claimed personal exigency was rejected as an afterthought and did not negate liability. Issue 3 - Sufficiency of circumstantial and transactional evidence to establish manipulation on preponderance of probabilities Legal framework: Proof in administrative adjudications under PFUTP is on preponderance of probabilities; both direct and circumstantial evidence can establish culpability where the cumulative weight demonstrates a scheme or pattern inconsistent with legitimate trading. Precedent treatment: The Court acknowledged precedents requiring cogent evidence but clarified that such requirement does not preclude reliance on cumulative circumstantial evidence; each case must be assessed on its own facts. Interpretation and reasoning: The investigation produced specific transactional timelines: pledge/loan against shares, immediate onward transfers by the pledgee to connected entities, concentrated trading that raised last traded price substantially, commonality of mobile numbers/addresses, and quantified contributions to volumes and price. No corporate fundamentals justified the price surge, and some company announcements were unfulfilled without subsequent disclosure. Taken together, these factors tipped the balance on preponderance of probabilities toward finding manipulation involving the appellant. Ratio vs. Obiter: Ratio - a demonstrated pattern of suspicious transfers, connected trading entities' significant contribution to volume/price, absence of fundamental justification, and promoter benefit suffice to establish manipulation on preponderance of probabilities. Obiter - emphasis that one or two facts alone may be insufficient; the cumulative matrix of facts is decisive. Conclusion: The circumstantial and transactional evidence was sufficient to hold the appellant liable for manipulation. Issue 4 - Whether association/connection with key managerial personnel and promoter group members, absent proof of active role, can found culpability Legal framework: Liability for fraudulent/ manipulative conduct may be established by proving participation, instigation, facilitation, or benefit from the scheme; association alone is not automatically determinative but may be probative when combined with other incriminating facts. Precedent treatment: Prior decisions caution against inferring guilt solely from tenuous associations; however, they accept that association coupled with relevant transactional evidence can be determinative. Interpretation and reasoning: The Court distinguished precedents that rejected liability based on sparse connection by noting that in the present record the association was not isolated - it sat within a broader assemblage of suspicious transfers, promoter group sales, and quantified trading contributions. The appellant's connection to an authorised signatory who transacted through an intermediary conduit, and the promoter group's concentrated profiteering, rendered the association probative of participation rather than an innocuous link. Ratio vs. Obiter: Ratio - association/connection is sufficient to support liability where it coalesces with transactional evidence showing facilitation/benefit in a manipulative scheme. Obiter - reminder that isolated or weak connections without supporting incriminating facts are insufficient. Conclusion: The appellant's connection to key personnel, viewed in the totality of evidence, was probative and contributed to the finding of culpability. Issue 5 - Admissibility/weight of belated defences and procedural posture Legal framework: Contentions and defences must ordinarily be advanced in response to the show cause notice and at the personal hearing to be accorded full weight; belated defences in appellate proceedings may be treated as afterthoughts unless adequately substantiated. Precedent treatment: Courts have declined to admit belated defences where they are unsupported and where the original proceedings afforded opportunity to present such defences. Interpretation and reasoning: The appellant failed to raise the wedding-fund defence during the adjudication stage. The absence of contemporaneous evidence and the timing of the defence led the Court to treat it as an afterthought, diminishing its evidentiary value. Ratio vs. Obiter: Ratio - belated defences raised first at appeal, unsupported by contemporaneous proof, should be given little weight. Obiter - parties should avail procedural opportunities to place material facts before the adjudicating officer. Conclusion: The belated explanation was rightly disregarded and did not affect the penalty outcome. Overall Conclusion On the totality of evidence - absence of fundamental justification for price rise, documented suspicious transfers by an intermediary to connected traders, demonstrable contribution of connected entities to trading volumes and price, promoter group sales and benefit by the appellant, and the belated/unsubstantiated defence - the Court upheld the finding of manipulation and dismissed the appeal, confirming liability and the penalty under Section 15HA.