2018 (12) TMI 2025 - Board - SEBI

Clears Noticees 1-5 due to inter-company loan and no trading; finds Noticees 6-7 guilty of spoofing, Regs 3(a)-(d), 4(1), 4(2)(a),(e)

Board held that Noticees 1-5 (the company and its directors) cannot be established as having manipulated the scrip given new evidence of an ... Scheme to manipulate the price of scrip to benefit the preferential allottees - allegation against company and its directors - screen-based trading - spoofing -like conduct by Noticee no. 7 - Liability of the company and its directors (Noticee nos. 1-5) - violation of the Regulation 3 (a), (b), (c) (d) and Regulation 4(1) 4(2) (a) and (e) of SEBI (PFUTP) Regulations 2003 - HELD THAT:- I note that a total amount of Rs. 76,75,000/- was transferred by CFTL to VRP on various dates. Further, a total amount of Rs. 76,75,000/- was transferred back by VRP to CFTL on various dates. In this regard, the company in the course of the proceedings before me through letters and submissions has stated that it had extended an inter-corporate loan to VRP which was also repaid by VRP. As per CFTL’s Annual Report for Financial Year 2011-12, an amount of Rs. 92,00,000/- is shown under ‘Short Term Loan and Advances’. However in the next Financial year i.e 2012-13, there is no money shown under ‘Short Term Loan and Advances’. Further, the company and directors have not traded in the scrip during Patch 1. In view of the said new facts that have come to light during the course of this proceedings which were not available at the stage of investigation, I note that it is difficult to conclude that Noticee nos. 1 to 5 i.e. the company and its directors were involved in the manipulation of the price of the scrip as alleged in the SCN. The company has enclosed copy of Form 32 for appointment of Ms. Swati Panchal as an Additional Director and further as an Independent Director. I note that the present SCN pertains to trading and dealings in the scrip of CFTL in Patch 1 i.e. from September 04, 2012 to January 08, 2013. As such, I note that Ms. Swati Panchal was not a director of the company during the relevant period when the violations occurred. There is nothing to show the direct involvement of Mr. Lalitkumar Maroo and Ms. Swati Panchal in the manipulation of the price of the scrip. Therefore, it would be difficult to conclude the that the said notice No. 1 to 5 have violated any provisions of SEBI (PFUTP) Regulations as alleged in the SCN and no direction is called for at this stage. I note from the order log for trade done on Sept 07, 201 that Mr. Daulat Laxmilal Chandraliya, had placed 30 buy orders for 3900 shares altogether. All buy orders were placed at Rs. 81.95/- which is 1.99% higher than previous close of Rs.80.35/- during 9:15 -9:19am. The trade for 20 shares at Rs.81.95/- has been executed with the placement of sell order by Mr. Ghanshyam Kamlesh Kachhawa at 12:09:10. Subsequently, between 12:15pm -12:16pm, all other 29 unexecuted buy orders have been deleted by Mr. Daulat Laxmilal Chandraliya. The practice of placing and cancelling orders on an exchange for the purpose of manipulating the market is commonly known as spoofing. The High Court of Justice in Navinder Singh Sarao v. The Government of United States of America (decided on November 03, 2016) while drawing the distinction between genuine cancellation and nongenuine cancellation of orders observed that there is a clear distinction “between the conduct involved: (1) in placing an offer which at the time it is placed is intended by the offeror to be open for acceptance, though it might subsequently be cancelled prior to acceptance; and (2) in placing an offer which, at the time it is placed, the offeror does not genuinely intend should be accepted”. It is observed from the trading pattern of Mr. Daulat Laxmi Chandraliya his orders at price significantly above the LTP and such orders were matched only when Mr. Ghanshyam Kachhawa placed his sell orders. The market, or, genuine investors were led to attribute significance to the fact that offers were being made at particular prices. Therefore, I note that deletion of unexecuted buy orders does not indicate bona fide intention to trade on part of Mr. Daulat Laxmilal Chandraliya and on other hand indicate trading to manipulate the price of the scrip. The contention of Mr. Daulat Laxmi Chandraliya that due to screen based trading it was not possible for him to find out who is the counterparty and the Noticee No.6, Mr. Ghanshyam Kachhawa being a counter party to all the trades cannot be construed as a violation is not acceptable. Accordingly, the Noticee no. 6 & 7, namely, Mr. Ghanshyam Kachhawa and Mr. Daulat Laxmi Chandraliya, have violated the provisions of regulations 3(a), (b), (c), (d) and Regulations 4(1), 4(2), (a) and (e) of Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003. The show cause notice dated August 09, 2017 issued to the following Noticee Nos. 1 to 5 is disposed of without any direction. ISSUES PRESENTED AND CONSIDERED 1. Whether the trading conduct of Noticee nos. 6 and 7 during the identified investigation period amounted to manipulation in contravention of Regulation 3(a),(b),(c),(d) and Regulation 4(1), 4(2)(a) and (e) of SEBI (PFUTP) Regulations, 2003. 2. Whether the company and its directors (Noticee nos. 1-5) participated in or were responsible for a scheme to manipulate the scrip to benefit preferential allottees, attracting the same PFUTP violations. 3. Whether the anonymity inherent in screen-based trading precludes inference of concerted or manipulative conduct where circumstantial evidence (order logs, fund flows, counterparty patterns) indicates coordination. 4. Whether the practice of placing and subsequently cancelling large buy orders (spoofing) can be treated as evidence of manipulative intent when correlated with matching sell orders and LTP impact. 5. Whether procedural contentions (adequacy of notice/service, opportunity of hearing, double jeopardy/alleged deprivation of investigation-stage hearings) bar or invalidate adjudication. 6. What remedial directions/market access restrictions are appropriate if manipulative conduct is established. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Liability of Noticee nos. 6 & 7 under PFUTP Regulations Legal framework: Regulations 3 and 4 of SEBI (PFUTP) Regulations, 2003 prohibit fraudulent/deceptive dealing and manipulation, including acts creating false or misleading appearance of trading and any act amounting to price manipulation. Precedent treatment: The Court relies on relevant judicial observations that inference of concerted intent may be drawn from circumstantial factors despite screen-based anonymity; specifically the principles in Kishore R. Ajmera and Rakhi Trading (as cited) concerning assessment on preponderance of probabilities from volume, persistence, order particulars and proximity of time. Interpretation and reasoning: The adjudicator analysed order logs, LTP-impact tables and trading patterns. Key findings: (a) Noticee no. 7 placed numerous buy orders at prices significantly above LTP that were executed only after sell orders were placed by Noticee no. 6; (b) unexecuted buy orders were repeatedly deleted shortly after execution of small matched trades; (c) Noticee no. 6 acted as the predominant counterparty to major LTP contributors early in the relevant patch and sold in unusually small lots (15-20 shares) despite holding larger quantities; (d) trades repeatedly touched the circuit filter and contributed disproportionately to positive LTP. These facts were held to demonstrate coordinated conduct aimed at establishing higher LTP rather than bona fide trading. Ratio vs. Obiter: Ratio - coordinated pattern of placing high-priced buy orders, cancelling unexecuted orders (spoofing), and matching sell orders in small lots by a counterparty constitutes manipulative conduct under Regulations 3 and 4. Obiter - reference to broader market behavioral expectations of a 'genuine investor' in thinly traded/recently unsuspended scrips. Conclusions: Noticee nos. 6 and 7 violated Regulations 3(a),(b),(c),(d) and Regulations 4(1), 4(2)(a) and (e). The adjudicator finds manipulative intent and effect established on the preponderance of probabilities from circumstantial and transactional evidence. Issue 2 - Liability of the company and its directors (Noticee nos. 1-5) Legal framework: Same PFUTP Regulations; also company law aspects referenced regarding inter-corporate loans and disclosure in accounts. Precedent treatment: No explicit departure from precedent; adjudicator applies evidence-led approach and requirement of proximate, admissible link between company/directors and manipulative trading. Interpretation and reasoning: Investigation established that the company had made transfers totalling Rs. 76,75,000 to VRP and VRP transferred the same amount back. Company/directors contended these were inter-corporate loans repaid and denied involvement in trading. New documents produced during proceedings (ledgers, bank statements, MCA filings) established that directors in question either were not directors during the relevant patch (one appointed later) or were independent directors with no role in day-to-day management. There was no direct evidence linking company or the named directors to trading activity or to orchestrating the manipulative trades; the fund transfers, as explained, did not on the record suffice to establish culpability for price manipulation in Patch 1. Ratio vs. Obiter: Ratio - absence of sufficient proximate evidence connecting corporate actors to trading patterns precludes finding of PFUTP violation against the company and the named directors. Obiter - observations on the limited role of independent directors and role of corporate documentation in assessing linkage. Conclusions: The SCN against Noticee nos. 1-5 is disposed of without any directions; it is difficult to conclude their involvement in manipulation on the evidence before the adjudicator. Issue 3 - Effect of screen-based trading anonymity on drawing inference of concerted action Legal framework: Civil adjudication standard (preponderance of probabilities) for regulatory violations; PFUTP Regulations governed by evidence-based inference. Precedent treatment: The adjudicator follows judicial guidance that screen anonymity does not prevent inference of concerted action where circumstantial evidence (reversal transactions, quantity, price, time, persistence) is compelling. Interpretation and reasoning: The decision rejects the contention that anonymity alone precludes inferring coordination. Citing established authorities, the adjudicator applies a cumulative-evidence test - order logs, temporal correlation, counterparty patterns and LTP impact - to infer meeting of minds elsewhere. Ratio vs. Obiter: Ratio - anonymity of screen-based trading does not bar civil/regulatory inference of coordinated manipulation where circumstantial transactional data point to a preponderant probability of coordination. Obiter - none added beyond reliance on cited authorities. Conclusions: The screen-based trading argument of Noticee no. 7 is not accepted; circumstantial evidence sufficed to infer coordinated manipulative conduct by Noticee nos. 6 and 7. Issue 4 - Spoofing (placing and cancelling orders) as evidence of manipulative intent Legal framework: PFUTP Regulations prohibit use of manipulative devices; evidence of intent may be inferred from pattern and effect of orders. Precedent treatment: The adjudicator references an external judgment distinguishing genuine cancellations from non-genuine (spoofing) conduct and adopts the principle that placing orders without intent to have them accepted constitutes manipulative conduct. Interpretation and reasoning: Repeated placement of large buy orders at prices near upper circuit, matched only by the same counterparty's small sell orders, followed by swift deletion of remaining unexecuted buy orders, was found to mislead the market about demand and to be inconsistent with bona fide trading. The market was led to ascribe significance to those orders, thereby affecting price; the pattern equated to spoofing and supported inference of manipulation. Ratio vs. Obiter: Ratio - persistent placement of orders intended not to be executed (spoofing), when correlated with matching orders and LTP impact, is evidence of manipulative intent under PFUTP Regulations. Obiter - illustrative examples from the order log. Conclusions: Spoofing-like conduct by Noticee no. 7, in concert with counterparty behaviour by Noticee no. 6, substantiated manipulative intent and effect. Issue 5 - Procedural contentions: notice, hearing, and double jeopardy Legal framework: Principles of natural justice and provisions of SEBI Act (investigation, SCN, hearing). Adjudicatory standard is preponderance of probabilities. Precedent treatment: Decision follows normal procedural scrutiny - whether adequate notice and opportunity to inspect documents and to be heard were afforded. Interpretation and reasoning: Record shows SCN served/affixed as per attempts, inspection of materials provided, adjournments accommodated, and personal hearings conducted on dates after service. Company and directors were given opportunities to inspect materials and to present submissions; corporate documentation was relied upon by the adjudicator in reaching conclusions favorable to the company/directors. The contention of double jeopardy (concurrent adjudication and investigation) was noted but not accepted as invalidating the present proceedings. Ratio vs. Obiter: Ratio - procedural objections that lack evidentiary support or are inconsistent with record of service/inspection/hearing do not bar adjudication. Obiter - particulars of service attempts and adjournments. Conclusions: Procedural contentions did not vitiate the proceedings; adequate opportunity and disclosure were found to have been provided. Issue 6 - Appropriate directions/remedy where manipulation is established Legal framework: SEBI Act powers (sections relied upon) permit market access restrictions and freezing of holdings to protect market integrity. Precedent treatment: The adjudicator exercises regulatory restraint powers to prohibit market access for a limited period and to freeze holdings pending restoration of market integrity. Interpretation and reasoning: Given finding of manipulative conduct by Noticee nos. 6 and 7, restraint from accessing the securities market and prohibition on buying, selling or otherwise dealing in securities, directly or indirectly, for a specified period was considered proportionate. Existing holdings, including mutual fund units, were ordered frozen during the restraint period to prevent continuation or benefit from manipulated positions. Ratio vs. Obiter: Ratio - where PFUTP violations are established on the preponderance of probabilities, the regulator may impose market access bans and freeze holdings for a limited, specified period to safeguard market integrity. Obiter - the two-year duration selected is a factual/determinative exercise rather than a categorical rule. Conclusions: A two-year restraint on market access and prohibition on dealing for Noticee nos. 6 and 7, with freezing of existing holdings and directions for dissemination of the order to tax authorities, exchanges, depositories and RTAs, was ordered and put into immediate effect.