9911796707
TMI Blog2003 (11) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... itiate prosecution under section 24 of the SEBI Act and (ii) adjudication proceedings under section 15I read with section 15 G of the SEBI Act against the Appellant. 3. The Appellant is the Managing Director of ABS Industries Ltd., Vadodara (ABS) a company incorporated under the Companies Act 1956 (name of the company has been subsequently changed to Bayer ABS Ltd.). The main business of ABS is manufacture of ABS resins (Acrylonitrile Butadiene Styrene) and SAN, (Styrene Acrylonitrile resins). Shares of ABS are listed on Bombay Stock Exchange National Stock Exchange, Ahmedabad Stock Exchange and Vadodara Stock Exchange. Bayer AG (Bayer) is a company registered in Germany having many subsidiaries in various parts of the world. Bayer took controlling stake in ABS in October 1996 by acquiring (a) 55,80,000 shares in the allotment made on a preferential basis by ABS (@ ₹ 70/-) (b) 20% shares from the existing shareholders @ ₹ 80/- per share in a public offer. 4. It has been stated by SEBI that there were allegations of purchases being made prior to announcement of Bayer acquiring controlling stake in ABS, on the basis of inside inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic announcement to the NSE, BSE and VSE on October 1, 1996 in this regard; (c) this purchase was financed by the Appellant; (d) while holding that there was requirement to establish profit for the purpose of establishing a violation of Regulation 3 read with Regulation 4 of the SEBI Regulations and accordingly making no specific finding that the Appellant had made any profit from the said transaction, and further finding that in fact the action of the Appellant in this regard were beneficial to the Company, the Chairman found the Appellant in breach of Regulation 3, and in violation of the Regulation, pursuant to the provisions of Regulation 4 thereof; (e) while finding that issuance of directions under the Regulation 11 would be inoperative and infructuous in the facts and circumstances, pursuant to section 11(1) Read with Section 11 B of the SEBI Act, the Chairman who Suo motu directed the Appellant to deposit a sum of ₹ 34,00,000 with the Investor Protection Funds of BSE and NSE to compensate the investors who may come forward at a later period of time seeking compensation for the loss incurred by them in selling at price which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany (ABS and SAN resins), including automobiles, consumer durables, telecommunication instruments, were planning to put up facilities in India. The Appellant was aware of the importance of technological arrangements with foreign companies so as to remain an important market player in the new economic scenario. In this regard, ABS had serious dialogues with reputed global manufacturers of ABS resin, including Japan Synthetic Rubber ( JSR ) (which was also the Company's existing technical collaborator), Mitsubishi Rayon, Toyo Engineering, Dow Chemicals, Monsanto Chemicals, etc. since 1994. There had been several frequent reports and articles in various newspapers and magazines from late 1994, all through 1995 and most of 1996 that ABS was seriously contemplating association with a foreign company. In this context paginated index copy of the relevant press clippings filed in the Tribunal was referred to. In mid - July 1995, the Company signed a secrecy agreement with Monsanto to explore the possibility of technical/foreign collaboration, while dialogues with other foreign companies continued. In November 1995, Monsanto's styrenic business worldwide was taken over by Bayer. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the details thereof. The Appellant appraised the Board accordingly. At that stage, there was no agreement or understanding between the parties and there was no certainty that the parties would infact agree to go ahead with the joint venture. Accordingly the Board authorised the Appellant to undertake further discussions in the matter. There was no concrete proposal whatsoever before the Board on which it could take a decision, at that stage. The resolutions passed by the Extraordinary General Meeting were subject to the approval by the financial institutions. On September 29, 1996, the Appellant visited Germany again, with a view to obtain a definite commitment from Bayer to enter into the said joint venture/merger and to agree on the terms and conditions on the basis of which the parties would do so. The experts were involved for the first time at this stage to iron out the methodology and modality of investment. Appellant travelled with the Company's legal counsel for this purpose. Bayer had invited their merchant bankers and legal advisors to be present at the said discussions in Germany. This was the first time that the said experts were involved in the discussions, as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said 20% shares under the public offer, the entire transaction would have become null and void. Subsequently, the shareholders passed a special resolution on October 30, 1996 approving the preferential allotment of shares to Bayer. At this meeting, UTI categorically opposed the preferential allotment to be made to the promoters. This is recorded in the minutes of the meeting. 14. In the last week of December, 1996, owing to considerable pressure from the financial institutions, Bayer was forced to increase the offer price from ₹ 70/- per share to ₹ 80/- per share. The announcement to increase in the offer price appeared in the news papers on December 27, 1996. However, this decision was taken by Bayer and its merchant bankers pursuant to their discussions with the financial institutions. The Appellant was not involved in any manner in that decision. 15. The Company has significantly benefited by the induction of Bayer. All creditors continue to rate the Company with the highest creditworthiness having the entire loan repayments and schedules being met in a timely manner. It has also strengthened the relations with vendors, suppliers, and employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween October 1, 1996 and October 7, 1996 at an average price of more than ₹ 70/- per share i.e. after intimation had been given to the stock exchanges that a Board meeting was going to be convened to discuss and decide on raising of further capital through preferential offer, if any. (e) Further, the Appellant had instructed Shri Kedia again to purchase further shares from the market. In fact, after the press advertisement on October 8, 1996 1,24,250 shares were purchased at a price of over ₹ 80/- Therefore, clearly the shares were acquired only to fulfill the obligation undertaking by the Appellant to Bayer to ensure that it obtains 51% shares in the Company. The Appellant did not seek to acquire the shares in order to make any profit therefrom. Bayer's induction was extremely critical to the Company, and it is only with this objective in mind, i.e. in order to ensure that Bayer succeeds in obtaining 51% shares in the Company, that the Appellant requested Shri Kedia to acquire the shares. The Principles of Insider Trading 17. The SEBI Regulations on insider trading seek to prohibit persons who by virtue of their connection with a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or to abstain from dealing the securities. 19. The aforesaid observations in Cady Roberts Co., clearly indicate that the prohibition on trading on undisclosed information is only when information is entrusted for a corporate purpose and should not be used for personal benefit on the principle that there is inherent unfairness when the party takes advantage of such information knowing that it is unavailable to others. Consequently it is only when the information is being misused for personal benefit or where a person takes advantage of such information that there would be a contravention of fiduciary obligation cast upon the corporate insider who is in possession of the material information. The decision of the SEC does not suggest that the information cannot be used even for a corporate purpose. In fact, the SEC has recognised that if there are conflicting fiduciary obligations the obligation to the company is paramount and there is no compulsory bar to the use of such information. In the context in Cady Roberts at page 11 it is stated that even if we assume the existence of conflicting fiduciary obligations, there can be no doubt which is primary here. Additionall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also reiterates this underlined principle. Burger J. in his descent, inter alia observed Finally, it bear emphasis that this reading of Section 10(b) and Rule 10b-5 would not threaten legitimate business practices. So read, the anti fraud provisions would not impose duty on a tender offeror to disclose its acquisition plans during the period in which it tests the water prior to purchasing the full 5% of the target co.'s stock. Nor would it proscribe warehousing . Likewise, market specialists would not be subject to a disclosure or refrain requirement in the performance of their every day (455 US 243) market functions. In each of these instances, trading is accomplished on the basis of material non-public information, but the information has not been unlawfully converted for personal gain. 23. Justice Blackmun in his dissent inter alia observes The duty to abstain or disclose arose, not merely as an incident of fiduciary responsibility, but as a result of the inherent unfairness of turning secret information to account for personal profit. He went on to observe the concept of 'insider' itself has been flexible; wherever confidential information has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slate into future earnings. In the context of the facts of that case, the Supreme Court went on to observe As the facts of this case clearly indicate, the tippers were motivated by the desire to expose the fraud see supra 648-649. In the absence of a breach of duty to shareholders by the insider, there was no derivative breach by Dirks. Blackman J. in his descent in footnote 11 explained requirement of scienter in insider trading cases. The Court observed ....when the disclosure to an investment banker or some other advisers, however, there is normally no breach because the insider does not have scienter; he does not intend that the insider information be used for trading purpose to the disadvantage of shareholders. Moreover, if the insider in good faith does not believe that information material or non-public, he lacks the necessary scienter, Earnst Earnst v. Hochfelder 425 US, at 197. In fact, the scienter requirement functions in part to protect good faith errors by this type Id, at 211, n.31 25. In the context of the facts and circumstances of the case, and in view of the said legal position it cannot by any stretch of imagination have been said that the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eavily. It was also pointed out that the other three competitors of ABS viz. (1) M/s. Rajasthan Polymer Resin Ltd., (2) M/s. Polychem Ltd., and (3) M/s. Bhansali Engineering and Polymer Ltd., have suffered significant loss and that their networth had been wiped out significantly and they were nearly sick companies for the past several years. It was also pointed that in this background it was imperative and in the interests of company and its stakeholders, such as shareholders, lenders, employees, suppliers, etc., that the company survived. The only way for ABS to survive was the introduction of a foreign partner. Bayer was one of the largest and most reputable global conglomerates in this business and their induction into the company would go a long way in the survival and growth of the Company. (g) The Chairman in his decision of 1st June 2001, appreciated the fact that the Company gained substantially from the take over by Bayer AG, as mentioned in para 14(x) of the Reply. The Chairman went on to observe however, there are many advantages (some of which are listed in para 14 above) which are not possible to quantify in terms of gain, there is no doubt ABS Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... theory targets a corporate insider's breach of duty to shareholders with whom the insider transacts; the misappropriation theory outlaws trading on the basis of non-public information by a corporate 'outsider' in breach of a duty owed not to a trading party, but to the source of the information. 11 and 12 The misappropriation theory advanced by the Government is consistent with Santa Fe Industries Inc Vs. Green 430 US 462, a decision underscoring that section 10(b) is not an all purpose breach to fiduciary duty ban; rather it trains on conduct involving manipulation or deception. 27. The Court while considering the earlier decisions of the US Supreme Court in Chiarella and Dirks observed: ......This Court found no obligation, see id., at 665 - 667, 103 S.Ct. at 3266 - 3268, and repeated the key point made in Chiarella; There is no general duty between all participants in market transactions to forego action based on material, the non-public information. 28. Consequently even while continuing with the misappropriation theory in the context of insider theory the US Supreme Court did not lose sight of the underlying principles of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is not a mechanical task. It is more than a mere reading of mathematical symbols. It is an attempt to discover the intent of the legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed by Lord Denning, it would be idle to expect every statutory provision to be drafted with devine prescience and perfect clarity. We can do no better than to repeat the famous words of Judge Learned Hand when he said: ... it is true that the words used, in another literal sense, are the primary and ordinarily less reliable source of interpreting and meaning of any writing; be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning 6.It is a well recognized rule of construction that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided. 33. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of investors. Insider trading takes place when insiders or other persons, who by virtue of their position in office or otherwise, have access to unpublished price sensitive information relating to the affairs of a company, and deal in securities of such company or cause the trading of securities while in possession of such information or communicate such information to others who use it in connection with the purchase or sale of securities. Thus, by benefiting certain investors as compared to others. Insider trading prejudices smooth functioning of the securities market and undermines investor's confidence. 35. In the light of the underlying principles relating to the prohibition of insider trading as well as the objects and reasons and intention behind the Regulations, it is abundantly clear that what was intended to be prohibited under Regulation 3 was the dealing in securities which was with a view to misuse information for obtaining unfair advantage. One of the indicia of that unfair advantage was making of profit. Consequently if the dealing in securities was not with a view to misuse the information or gain unfairly from the use of the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the 'disclosure or abstain' rule. 41. To establish the offence of insider taking, it is essential to establish a breach of such duty owed to the company by the insider. This necessarily requires some manipulation or deception by the insider (Dirks v. US SEC 403 (646), that proof of mens rea to manipulate or deceive is therefore necessary. The clearest evidence of the manipulation or deception being perpetrated by a corporate insider is when an insider uses the unpublished price sensitive information to make secret profit/personal gains. The necessary circumstance for liability is to ascertain whether the insider has made any secret profits or personal gains. If such benefit can be established, the insider is liable for the offence for insider trading (Dirks v. SEC 406 US 646). 42. The U.S. Supreme Court, while considering the Appeal in the case of Dirks v. SEC, while holding that personal benefit/personal gains form the basis of liability of insider trading stated: In some situations the insider will act consistently with his fiduciary duty to shareholders and yet release of the information may affect the market. For example, it may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to any corporate purpose. Lipson's case does not in any manner contradict the aforesaid principles on the basis of which insiders are held liable. 47. The necessary requirement to successfully establish liability for insider trading is unlawful conversion of unpublished price sensitive information resulting in secret profits/ personal gains. The Regulations 48. The prohibition against Insider Trading in India is provided for in Regulation 3 of the said Regulations which so far as relevant, reads : Prohibition on dealing, communicating or counseling on matters relating to insider trading - No insider shall - either on his own behalf or on behalf of any other person, deal in securities of a company listed on any stock exchange on the basis of any unpublished price sensitive information Regulation 2(e) defines an insider : Insider means any person who is or was connected with the company or is deemed to have been connected with the company, and who is reasonably expected to have access, by virtue of such connection, to unpublished price sensitive information in respect of securities of the company or who has received or ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lations, by inter alia promoters and other existing shareholders who would qualify as insiders under the said Regulations. Therefore, it is clear that transactions entered into even on the basis of unpublished price sensitive information would not be in breach of the Regulations if they are undertaken for a corporate purpose, that any other interpretation of Regulation 3 would render the same absurd for inter alia the following reasons: a) All corporate activities on the basis of unpublished price sensitive information would stand proscribed. b) Corporate insiders would be subject to a form of strict liability against dealing in securities even if they act in furtherance of their duty to the Company. c) A corporate insider would be liable although he has committed no breach of his fiduciary duties, to the Company. d) Promoters cannot consolidate their holdings in their company subject to limit prescribed by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, on basis of unpublished price sensitive information. 52. Chapter III of the SEBI Regulations on insider trading sets out SEBI's powers to invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther person to deal in securities. Regulation 11 does not empower the Board to pass any other wider directions. The power under regulation 11 is only to pass necessary interim directions for the purpose of preserving the status quo during or immediately after the investigation. Regulation 11 does not empower the Board to make any final and/or conclusive determination as to whether the insider has acted in breach of the Regulations. It is for that reason that advisedly the Regulation does not empower the Board to call for any Documentary evidence or to summon any persons it considers necessary as witnesses before passing the said directions provided for therein. It is significant to note that in contrast Section 15-I(Power to Adjudicate) of the said Act expressly confers upon the Adjudication Officer the power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the Adjudicating Officer may be useful for or relevant to the subject matter of the inquiry. 56. From the scheme of the SEBI Act read with the Regulations it is apparent that a final and conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider under Regulation 2 (e) as he being a person negotiating on behalf of his company, was in a position to know about the impending tie up/takeover with/by Bayer Industries. The information about takeover, amalgamation, mergers, etc. is a price sensitive information within the meaning of Regulation 2 (k) (v) of the SEBI (Insider Trading) Regulations, 1992 and this information was not available to sellers and public at large. 17. The information about the takeover is price sensitive information, this can be seen from expression unpublished price sensitive information which is defined in Regulation 2 (k) of the Regulations. This expression reads as under: unpublished price sensitive information means any information which relates to the following matters or is of concern directly or indirectly, to a company, and is not generally known or published by such company for general information, but which it published, is likely to materially affect the price of securities of that company in the markets- (i) financial results (both half yearly and annual) of the company (ii) intended declaration of dividends (both interim and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he minutes of September 20, 1996 meeting did not indicate that any informal understanding had already been arrived at in this regard, that the minutes in fact, clearly state that the salient features of the agreement are in the process of being discussed. 63. From the very day i.e. October 1, 1996 when ABS and Bayer entered into the said share subscription agreement, the said stock exchanges were informed that a Board Meeting was to be convened to discuss and decide raising of further capital through a preferential offer, for the purpose of the said merger/takeover. Further, it is empirically able to establish that the general information that the company was merging/entering into a joint venture with another company and/or Bayer AG was not price sensitive information and did not materially affect the price of securities of ABS Industries in the market, e.g. in February 1996, the Express Weekly (Edition of 8th January to 14th January, 1996) carried an article wherein it was mentioned that ABS Industries was contemplating a tie-up with Monsanto (subsequently, publicly taken over by the Bayer AG). On the very next day after the article was published, the price of ABS's s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation regarding Bayer's said requirement to hold 51% equity of the said company was the unpublished price sensitive information on the basis of which the Appellant entered into the said transactions. This argument was for the first time taken during the course of the said hearing and is contrary to the notice issued by SEBI and the impugned Order, which proceeded on the basis that the information regarding the take-over/merger was the relevant unpublished price sensitive information. It is not open to SEBI to make the said submission and the same should be struck off from the record of the proceedings. If the same is considered at this stage the same would violate natural justice as the Appellant has had no opportunity to place on record and plead that the said information was neither material nor price sensitive no unpublished. It was Bayer's world wide policy that it required to hold 51% equity of any company it enters into a tie-up/ merger / take-over with, which fact is widely known, therefore the said information can not be regarded to be unpublished. Power to direct disgorgement / compensation 66. The impugned order directs the Appellant to deposit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise provided in section 11, if after making or causing to be made an enquiry, the Board is satisfied that it is necessary; (i) in the interest of investors, or orderly development of securities market, or; (ii) to prevent the affairs of any intermediary or other persons referred to in section 12 being conducted in a manner detrimental to the interest of investors or securities market; (iii) to secure the proper management of any such intermediary or person. It may issue such directions; (a) to any person or class of persons referred to in section 12, or associated with the securities marked; or (b) to any company is respect of matters specified in section 11A, as may be appropriate in the interests of investors in securities and the securities market. 68. Paragraphs 33, 34 35 of the said notice issued to the Appellant pursuant to Regulation 9, reads that: 33. Section 11B was inserted by the Securities (Amendment) Laws, 1995. This provision of the Act operates independently of and in addition to the regulations. Besides section 11B being a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d does not have any power to direct the Appellant to pay the said amount by way of compensation, pursuant to Section 11 B of the said Act. Accordingly, that the impugned order in so far as is does so, is ultra vires the provisions of the said Act, and liable to be struck down. 71. It was urged on behalf of the Respondents, that the Board had inherent powers under Section 11B of the said Act to issue all necessary directions in the interest of the investors, and the orderly development of the securities market. In this regard the Respondents sought to rely upon the judgement and order of the Hon'ble Bombay High Court in the matter of B.P. Plc v. SEBI (SEBI Appeal No.10 of 2001 in Appeal no.37 of 2001) dated May 2, 2002 by which the Hon'ble Bombay High Court upheld SEBI's directions to the Appellants therein to pay interest to the aggrieved investors. This judgment and order is clearly distinguishable from the facts and circumstances of the present matter. In B.P. Plc's case it was held that SEBI has the power to direct the payment of interest to aggrieved investors on a conjoint reading of the provisions of the said Regulation 44 and Section 11B of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal it was argued on behalf of the Respondent that the impugned direction of deposit purportedly to compensate any aggrieved, investors who may come forward in the future was made pursuant to the said Regulation 11. This submission is contrary to the record as aforesaid, and should accordingly be struck out. 75. Regulation 11 merely empowers the Board to pass certain interim directions, for the purpose of maintaining the states quo during the course of the investigation and/or, immediately thereafter upon receipt of the said investigative report. Further, that the directions which may be passed pursuant to Regulation 11 are limited to the purposes enumerated therein, which do not include compensating any aggrieved parties. Further that the said Regulation 11 does not empower the Board to arrive at any final and/or conclusive determination as to whether any person has acted in breach of the said Regulations for reasons more particularly stated above. Such final and conclusive determination can only be made by the Adjudicating Officer, pursuant to the powers conferred upon him by sections 15-G, 15-I and 15-J of the said Act or pursuant to a prosecution initiated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues Ltd. Bombay v. Collector of Customs, Bombay [1984 (18) ELT 533] and Madhusudan Gordhandas Co. v. Collector of Customs, Bombay [1987 (29) ELT 904]. There is in fact no such findings whatsoever on this point by the investigating officer or in the impugned order. The investors have not incurred any loss by the said transactions. 79. Furthermore the said transactions by ensuring the investment of Bayer AG into ABS Industries has ensured the survival and profitability of the company, which in the long run has benefited general body of shareholders, therefore this accusation by SEBI at this stage of the proceedings has no basis in fact. Specific allegations of profit/personal benefit 80. The impugned order at paragraph 20 stated: It was contended that in the absence of any evidence that acquisition was for trading purpose, i.e. the process of buying and selling with intent to make profit, there cannot be violation or contravention of the insider trading Regulations. The contention is not acceptable as the word used in the Regulations is dealing in securities . This expression is defined in Regulation 2(d) which reads as dealing in securities m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit, that his sole objective in entering into the said transactions was to benefit the said company by ensuring the entry of Bayer. The Shareholders Agreement dated 27th February 1997 between Bayer India Ltd. and the Appellant, belies any such suggestion that the Appellant has retained Management control over the newly formed joint venture company. Clause 2(Board structure) and in particular Clause 2.1 thereof provides that so long as Bayer owns not less than 50.9% of the equity shares in joint venture company the board of directors shall always be in odd number and that Bayer shall have the right to appoint/designate majority of the directors on the Board. Further, that at present the Board of directors was to consist of the total number of nine directors out of which Bayer was entitled to appoint and nominate the majority number of directors i.e. five directors on the Board. Clause 2.2 further provides that as long as the Appellant owns not less than the minimum required shares of the said joint venture company, he would be entitled to appoint and nominate only four directors, which appointments include the nominees of Financial Institutions. Further, that in case the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the realm of possibility and was not in any manner definite or certain. This being the case the Appellant was not even aware that there might be any requirement in the future to hold a certain minimum number of shares. In any event, that there was no agreement whatsoever between the parties at that time, of any minimum shareholding which would be required to be held by the Appellant, that therefore no such motivation prompted him to instruct the said I.P. Kedia to enter into the said transactions. The Appellant denied such intention. In fact ultimately the Appellant was constrained to put in his own shares to ensure the success of the open offer and the Appellant consequently was unable to hold the quantity of shares as contemplated in the original draft shareholders agreement. Infact the financial institutions opposed allotment of any additional shares to the Appellant as originally contemplated. Consequently, in fact the Appellant has personally suffered in the process of ensuring the successful entry of Bayer into ABS. 86. It is incorrect that the Appellant made any profit/personal benefit by entering into the said transactions through the said I.P. Kedia. The App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bayer team visited ABS for technical and financial evaluation of ABS and asked for further details which were furnished by ABS. On 5th and 6th September 1996 Appellant visited Germany and held meetings with Bayer's officials and concluded an in principle agreement whereunder interalia Bayer insisted that Bayer wanted to have a majority stake of 51% but that and the Appellant was to continue in management and in control of the merged company etc. On 8th September 1996 Appellant returned to India from Germany. On 20th September 1996 the Board of ABS was informed of the Appellant's visit to Germany and the minutes recorded the salient features of the agreement that were discussed with Bayer. From the available facts nothing has happened between the 8th and 20th of September 1996; therefore it can safely be concluded that the in principle agreement was arrived at on the 5th and 6th of September 1996. On 29th September, 1996 the Appellant once again visited Germany alongwith his legal advisors and the Merchant Banker and the legal advisors for Bayer in India. On 2nd and 3rd October, 1996 Legal consultants of both companies worked out a draft subscription agreement and shareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but to ensure that Bayers obtain 51% of the share capital of ABS and that if Bayer did not get the said 51%, the joint venture or merger would have fallen through and it was in the interest of ABS that the joint venture with Bayer goes through. 90. The entire basis of the Appellant's argument is based on a totally incorrect principle and is clearly an after thought. Shares of ABS were being freely traded at stock exchanges. The purchases effected by Kedia clearly demonstrated that shares of ABS were available for purchase in the market even at prices well below the open offer price of ₹ 70/- It is incorrectly sought to be suggested that whilst the sellers were ready and willing to sell their shares to Kedia, they would have been unwilling to sell their shares to Bayer at a public offer. There is nothing in the submission made by the Appellant to substantiate this incorrect premise. It is therefore clear that Bayer would have been able to obtain the necessary 20% at the open offer and there is no material available on record to suggest anything to the contrary. As per the agreements disclosed by the Appellant, he was only required to co-operate with Bayer in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 94. Insider Trading may be described as trading which is based on an imbalance of information resulting in one party to the transaction having advantage over the other party by reason of his having unpublished price sensitive information. 95. According to the Respondent the growth of the securities market depends on investor's confidence in the fairness of the securities market which can only be achieved by ensuring that the securities markets operate freely and fairly with all participants having equal access to all information so that they can make informed investment decisions. It cannot be disputed that: i. the Appellant as Managing Director of ABS was an insider ii. the Appellant had unpublished price sensitive information. iii. at the relevant time i.e. between 9th September and 8th October 1996 the Appellant had financed Mr. Kedia and directed him to purchase shares of ABS on the basis of the aforesaid price sensitive information. The Appellant is therefore guilty of having breached Regulation 3. It is clear from the bare reading of Regulation 3 that the prohibition of insider trading by an insider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler of a stock exchange; (iii) is a merchant banker, share transfer agent, registrar to an issue, debenture trustee, broker, portfolio managed, investment advisor, sub-broker, Investment Company or an employee thereof, or, is a member of the Board of Trustees of a mutual fund or a member of the Board of Directors of the Asset Management Company of a mutual fund or is an employee thereof who has a fiduciary relationship with the company. (iv) is a member of the Board of Directors, or an employee, of a public financial institution as defined in section 4A of the Companies Act, 1956; or (v) is an official or an employee of a self regulatory organisation recognised or authorised by the Board of a regulatory body; or (vi) is a relative of any of the aforementioned persons; (vii) is a banker of the company; Regulation 2(i) 2(i) relative means a person, as defined in section 6 of the Companies Act, 1956 (1 of the 1956); Regulation 2(k) Unpublished Price Sensitive Information means any information which relates to the following matters or is of concern directly or indirectly to a company and is not generally known or publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. Regulation 11 Directions by the Board 11. Directions by the Board.- On receipt of the explanation, if any, from the insider under sub-regulation (2) of Regulation 9, the Board may without prejudice to its right to initiate criminal prosecution under section 24 of the Act, give such directions to protect the interest of investors and in the interest of the securities market and for due compliance with the provisions of the Act, rules made thereunder and these Regulations, as it deems fit for all or any of the following purposes, namely:- (a) directing the insider not to deal in securities in any particular manner; (b) prohibiting the insider from disposing of any of the securities acquired in violation of these regulations; (c) restraining the insider to communicate or counsel any person to deal in securities. 97. The Appellant has not seriously disputed that information relating to the issue of shares by preferential allotment (Regulation 2(k)(iii) and information relating to mergers Regulation 2(k)(v) are price sensitive information. Merely to reinforce the point that information relating to mergers is unpublished p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision is clearly aimed at fraud in the traditional sense and finds its UK equivalent in Section 47 of The Financial Services Act, 1986. It came to be applied to insider trading by Courts, through private litigation and then by the SEC in 1960 as part of SEC enforcement policy on insider trading. In the USA since the law governing insider trading is part of the general law of fraud, mens rea, motive, intention to make a profit, who is an insider, duty of an insider and outsider etc. are relevant and are required to be established before a charge of insider trading can be made and/or said to have been proved. 101. In UK pursuant to the European Communities Directive on Insider Dealing (18th November, 1989) the Criminal Justices Act, 1993 was enacted. Chapter V of that Act contains provisions which repeals the Company Securities (Insider Dealing) Act, 1985, under which Insider trading became an offence for the first time in UK in 1980. The provisions under the Criminal Justice Act, 1993 are very different from the SEBI Act and Regulations. Therefore reference to USA and UK judgements must be read in the context of the USA and UK law's relating to insider trading. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited because of the similarity of facts as is apparent from the quoted passage It is unlawful for an insider, such as majority stockholder, to purchase the stock of minority stockholders without disclosing material facts affecting the value of the stock, known to the selling minority stockholders, which information would have affected the judgment of the sellers. 107. During the course of arguments SEBI cited judgement in the case of SEC v/s David E. Lispon (U.S. court of Appeal (7th Circuit) Docket No.01 -1226) to illustrate the point that in USA even though benefit/ motive is required to be proved in order to make out the charge of insider trading and that insider trading for a legitimate purpose may be defence to the charge of insider trading, the U.S. Court nevertheless held, if the existence of an alternative legitimate purpose were a defence to a charge of insider trading, any insider who wanted to be able to engage in such trading with impunity would establish an estate plan that required him to trade in his company's stock from time to time. He could then trade on the basis of inside information yet defend on the ground that he was also trading in implement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 110. Chiarella V. United States 445 U.S. 222 cited by the Appellant was a case whether an outsider, i.e. a printer could be held guilty of Insider trading under the U.S. legislation relating to Insider trading since the facts of that case bear no resemblance to the facts with which we are concerned in the present appeal, the said judgement has no relevance. It was on the basis of this judgment that it was sough to be agued that legitimate corporate purpose was an exemption to the rule prohibiting insider trading. But under the Indian legislation relating to insider trading no such exemption can be carved out even on the basis of a purposive interpretation. The Regulations are clear and explicit and do not require any interpretation aids in understanding its meaning/purpose and intent. The said judgment was really a case where incorrect instructions had been given to the jury which was the basis of the decision and if correct instructions had been given to the jury what the decision would have been, has expressly been left open. 111. Attorney General's Reference- 1988 1 A.C. 971 case cited by the Appellant has no relevance in the present context. The issue in that matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a conclusive determination as held by the Appropriate Authority as this portion of the Judgement has been separately stayed by the Hon'ble Bombay High Court. 114. SEBI in its Order, and its Counsel in the course of argument have taken aid of judgements of the U.S. Courts only for the purpose of enforcing well established principles relating to Insider trading which are enshrined as a part of the Regulations and not on the basis that U.S. law relating to Insider trading is in any way similar to or in para materia with the Indian Regulations relating to insider trading. 115. With reference to SEBI's power to pass directions to disgorge profit made pursuant to insider trading, it was submitted that under Section 11(2) (g) of the SEBI Act, SEBI is empowered to prevent insider trading by taking such measures to protect interests of investors. The term such measures is very wide and is not couched with any conditions/restrictions. Regulation 9(2) also empowers SEBI to call upon the Insider who has been found guilty of committing breach of regulations 3 and 4 to take such measures as SEBI may deem fit to protect interest of investors and the integrity of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ascertain whether an order passed is remedial/compensatory/ penal, the order itself has to be looked at. The Appellant as a result of Insider trading has made a profit as stated earlier. The Appellant therefore cannot be allowed to retain such ill-gotten gains, and in the circumstances SEBI by the said impugned order has directed the Appellant to disgorge the ill-gotten gains and pay it into the two Investor protection funds, which will be utilized to compensate Investors who had sold their shares to the Appellant acting through Mr. Kedia. Suitable orders to that effect can be passed to identify such sellers. In any event even if such sellers cannot be identified or do not come forward to receive the compensation the amount having been deposited with the Investor protection fund of NSE and BSE will be put to use for the general benefit of Investors, that in the circumstances the Impugned Order is clearly remedial/compensatory in nature and is not a penal order. 117. The two Judgements of the United States Courts cited by the Appellant are not insider trading cases though they relate to orders passed to disgorge profits. In USA there does not appear to be any investor p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, can not be viewed as a decision as such by Monsanto to takeover ABS. It, as the Appellant rightly stated was only for exploring the possibility. The fact that Bayer came in place of Monsanto on its takeover by Bayer does not change the nature of the undertaking. The Appellant has stated in its Appeal Memorandum that in February Bayer approached ABS to discuss the possibility of an association between ABS and Bayer. This also indicates that the matter was not crystallized then, but was in a fluid stage. From the sequence of developments chronicled by the Appellant in his memorandum of appeal it appears that the discussions were going on and on from February, 1996 followed by supply of various details to Bayer. It is seen from the records that even though the Board of Directors of ABS considered the prospects of foreign collaboration in their meeting held on 28.6.1996 they desired to examine the matter further. It was on 5th -6th September, 1996 the Appellant held discussions with Bayer in Germany regarding the possible joint venture. He returned to India on 8.9.1996. He appraised the Board of Directors of ABS of the developments with reference to his discussion with Bayer. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is reflected both in the shareholders agreement and the share subscription agreement.......... There was ample reason to believe that if Bayer did not have eventually 51% we had no agreement. This situation would have been extremely damaging for the future of our company. Hypothetically, I may have offered more shares from my investment companies to meet the short fall as long as I was doing so with the confines of the law . You will observe that the structure that was worked out for equity holding and approved by the Boards indicated 51% equity holding by Bayer and 26% equity by me. Any sale of shares from me or my companies would have brought my equity holding below 26%, the situation I wanted to avoid particularly in the context of the agreement that I was to continue in the identical management capacity. As mentioned earlier, I wanted to get as many shares for completing 51% for Bayer for the success of the arrangement. 120. It appears that the Appellant was frantic to ensure that Bayer's holding in ABS reaches 51% and he had even directed Mr.Kedia to purchase 1,24,250 shares at the rate of ₹ 82/- on 8th October, 1996 after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.E. JSR our existing collaborator, Mitsubishi corpn. and Monsanto from USA. Since Monsanto's Technology was preferred the co. entered into a secrecy agreement with Monsanto in July 1995 to explore the possibilities of a technology tie up. While the discussion with Monsanto was going on in November 1995 Monsanto sold their worldwide styrene business including ABS/SAN Resins to M/s. Bayer AG. The deal was completed by the end of 1995. In February/March the co. once again started with JSR Mitsubishi and explored the possibilities once again from GE and DOW. M/s.GE Plastics and Dow Plastics both denied out request since they did not want to licence technology. GE Plastics however announced to enter India through collaboration with IPCL or by themselves. Then Bayer AG approached us because of our secrecy agreement and history of Monsanto. The co. was keeping all its option open upto June 1996. Having independent discussion with all these cos. M/s. Bayer AG was known to have the best technology specially after acquired from Monsanto Styrene business. It was discussed in the board meeting of 28.6 to explore the possibilities further and accordingly a team, from Bayer AG was allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns getting as many share from the market should the discussions eventually result into joint venture with Bayer. Discussion about this matter was going to take place on the Board meeting on 20th Sept. But Bayer would not consider any proposal unless they were guaranteed for 51% equity into the Co. I therefore told Mr.Kedia that if the shares are offered by my relatives or for that matter anybody he can procure on my behalf and I will finance the purchase. I had expressly informed him that the purchases should not be in a manner, to have any undue price rise or undue movement. I had told him to purchase the shares as long as offered in the natural course at the prevailing market price. While I was instructing Mr.Kedia I considered it to be a natural process. In my wildest imagination also I could never have thought that I was committing any crime or offense. The figure of 51% for Bayer was important for me and all the while I was thinking that should this discussion result into joint venture how to muster up this 51% of share by Bayer. The share holding pattern of 12 crores equity was that I was holding, 30% institutions were holding, around 25% my relations and friends were holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re holding shares and eventually got their consent to offer their shares into the public offer. The Fin. Instns. realizing the necessity of joint venture with Bayer helped by offering part of their equities in the public offer. As on last date there was still short fall of 933250 shares. I was left with no option but to offer my shares from my investment co. i.e. Tash Investment Co. to complete the transaction to get Bayer 50.97%. The shareholders agreement was subsequently signed amending 51% figure to 50.97%. I never wanted to dilute my holding in the Co. Since by virtue of the agreement I still continued to hold the management and managing directorship for next 7/10 years and all the advantages which I was enjoying before the joint venture. The agreement stipulated that the technology would be available free but no German would come to manage affairs of the Co. The agreement also had stipulated giving me minority protection in the form of around 26% voting rights. Even in case at a future date if with the equity expansion, my equity was diluted to much lower level. The only condition was that I had to maintain my shareholding as on the date they acquired ..... . It was therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plant. Thereafter on 5th /6th September, 1996 the Appellant visits Germany and discusses the matter. The speed with which things moved thereafter need be noted. On 8th he returned to India from Germany; reports the matter to the Board of Directors on 20.9.96, on 29.9.96 Appellant visits Germany with legal adviser to work out legal formalities, discussion continues upto 3.10.1996. On 3.10.1996 a formal share subscription and shareholders agreements were entered into. Board of ABS approves the agreement on 5.10.1996. It is to be noted that the Appellant has admitted that the public came to know of the deal only on 1.10.96 on ABS informing the stock exchanges about the matter. 124. I have perused all the press clippings/reports filed by the Appellant in support of his version that the information relating to acquisition of ABS by Bayer was not an unpublished information. But I do not find any one of those clippings/reports supporting the Appellant's version. The sensitive information is the specific fact that Bayer was entering into ABS by acquiring51% of its capital. This specific information is the price sensitive information, which I do not find having been disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion will generally be in his possession because of some connection which he has with the company whose securities are to be dealt on (e.g. he may be a director, employee or professional adviser of that company) or because some one in such a position has provided him directly or indirectly (para - 2 of the White Paper on Conduct of Company Directors 1977 (Comnd 7037 )(UK). 129. High Powered Committee on Stock Exchange Reforms (1985) in its report submitted to the Ministry of Finance, Govt. of India had explained the concept of Insider Trading. According to the said report 'Insider trading' generally means trading in the shares of a company who are in the management of the company or are close to them, on the basis of undisclosed price sensitive information regarding the working of the company, which they possess but is not available to others. Insiders or persons connected with companies are in a position to take advantage of confidential, price sensitive information before it becomes public and thereby make speculative profits for themselves to the detriment of uninformed public investors. An insider coming in possession of inside information in relation to a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the ordinary course of business or under any law; or (iii) counsel or procure any other person to deal in securities of any company on the basis of unpublished price sensitive information. 4. Violation of provisions relating to insider trading. Any insider who deals in securities or communicates any information or counsels any person dealing in securities in contravention of the provisions of regulation 3 shall be guilty of insider trading. 132. Chapter III is on investigation. It provides for investigation by SEBI, procedure to be followed for investigation, obligation of insider on investigation by the Board, submission of report to the Board by the investigating authority, nature of follow up of the investigation report etc. Power to issue directions in appropriate cases has also been stated under this chapter. Apart from the power to appoint investigating authority, SEBI, under this Chapter is empowered to appoint a qualified auditor to investigate into the books of account or the affairs of the insider. Appeal provisions against SEBI's orders has also been provided under this chapter Chapter III by and large is on procedural a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ketable securities of a like nature in or of any incorporated company or other body corporate. The security involved in the instant case is the shares of a public company viz ABS Industries Ltd., (ABS) It is not disputed. The fact that the shares of ABS are listed on stock exchanges is also not in dispute. Therefore, the subject share is covered under regulation 3(i). The regulation 3 (i) has referred to persons connected with the company and persons deemed to have been connected. Both these type of persons have been defined in the regulation 2( c) and 2(h) as follows: 2 (c ) connected person means any person who - (i) is a director, as defined in clause (13) of section 2 of the Companies Act, 1956 (1 of 1956), of a company, or is deemed to be a director of that company by virtue of sub-clause (10) of section 307 of that Act; or (ii) occupies the position as an officer or an employee of the company or holds a position involving a professional or business relationship between himself and the company and who may reasonably be expected to have an access to unpublished price sensitive information in relation to that company; 2(h) person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dividends (both interim/final) (iii) issue of shares by way of public rights, bonus, etc.; (iv) any major expansion plans or execution of new projects; (v) amalgamation, mergers and takeovers; (vi) disposal of the whole or substantially the whole of the undertaking; (vii) such other information as may affect the earnings of the company; (viii) any changes in policies, plans or operations of the company; 138. Any information, in order that it is unpublished price sensitive information must be related to any of the specified matters. Whether any information is price sensitive, not withstanding that it relates to one or more of the specified matters will always be a question of fact to be answered having regard to the facts and circumstances in each case. The information must, however relate to one or more of the matters enumerated in the definition. Further more, the information must be such that it is not generally known or published by the company and it is likely to materially affect the price of the company's securities. 139. It is in the light of the legal position explained above, the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take over by Bayer, has been admitted by the Respondent also as could be seen from its observation in the order that there is no doubt ABS Industries really gained immensely from the takeover of Bayer AG. 143. The Appellant has not denied the fact of acquiring shares through his brother in law in the days preceding the acquisition of ABS's shares by Bayer. But his reasoning is that at the relevant time, the information relating to Bayer entry was already in the public domain. 144. The Appellant's version that he had also tendered 9 lakh and odd shares from his own promoter quota to enable Bayer to acquire 51%on account of short fall in the target of the open offer, requires to be noted. The cold response from the public share holders to the Bayer's offer has been stated by the Appellant in his deposition before the SEBI officer that Even after making considerable efforts, the shares obtained by Bayer upto 20th September (December ?) were not even 5% The merchant bankers of Bayer Industries M/s. DSP Merril Lynch were in active discussions with financial institutions particularly UTI and LIC which had a large chunk of shares for offloading the shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant had produced a large number of press cuttings/reports to show that Bayer joining as a partner to improve the efficiency of ABS, in my view none of these statements/reports has given any specific indication as to the entry of Bayer as a 51% partner. In terms of regulation 3 (k) the information relating to the matters or of concern in respect of the matters stated therein (which clearly covers amalgamation mergers and takeovers)to not to be considered as unpublished price sensitive information, it should be shown that it was generally known or published by such company for general information. It is on record that the company furnished the information only on 1.10.1996 i.e. the date on which the subject matter of the agenda of the Board meeting of ABS to be held on 5.10.1996. There is nothing on record to show that ABS had published the information for general information at any time except notifying the stock exchanges preceding the acquisition of ABS by Bayer. It is to be noted that the nature of Bayer association, the extent of its involvement, its financial stake in the company etc. are of considerable importance from the point of view of other investors. None of the press c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any means or instrumentality of interstate commerce or the mails of any facility of any national securities exchange (445 US 226) (a) to employ any device, scheme, or artifice to defraud (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. The provision is clearly aimed at curbing fraud. So is the case in UK. 151. In my view reference to USA and UK judgements must be read in the context of the USA and UK law and these concepts and principles cannot be imported into the SEBI Regulations on insider trading which is a separate code by itself. In my view US/UK law relating to insider trading is not similar to or para materia with SEBI Regulations. Therefore, I do not consider it necessary to consider various decision of USA/UK courts cited by the Counsel for the parties. 152. The wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essential element of the offence, it is necessary to look at the objects and terms of the statute It has always been a principle of the common law that means rea is an essential element in the commission of any criminal offence against the common law. In the case of statutory offences it depends on the effect of the statute..... There is a presumption that mens rea is an essential ingredient in a statutory offence, but this presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals (State of Maharashtra V Mayer Hans George AIR 1956 SC 722 AT PG. 728) It is to be noted that as per the SEBI Act insider trading is a statutory offence. In this context it is also to be noted that the persons violating the provisions of SEBI Act, rules and regulations are liable to criminal prosecution. The penalty for violation of the provisions of SEBI Act, rules and regulations has been provided in Section 24 of the SEBI Act. As per the said Section 24 the offender shall be punishable with imprisonment for a term which may extend to ten years or with fine, which may extend to twenty five crore rupees or with both . This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of gaining any unfair advantage, the charge of insider trading warranting penalty can not be sustained against him. 154. In the instant case it is clear that the Appellant was frantically trying to get a joint venture partner to strengthen the company, when the particular industry was facing problems. The partner was Bayer. It put stiff condition of holding 51% capital in the company. The Appellant's intention in acquiring the share was to facilitate the entry of Bayer for the betterment of the company and its other shareholders, employees etc. The object was not to gain unfair personal gain. It is true that in the process the shares which he purchased at a lower price fetched a higher price when offered in the public offer. But this gain was only incidental, and certainly not by cheating others. If the Appellant's intention was to make money in the process, he could have cornered much more shares and profitted considerably. His bonafide is evident from the fact that he had instructed Mr. Kedia to buy even 1,20,000 shares @ ₹ 80/- when the public offer response was not that warm, so as to meet the deficiency, if any, in obtaining 20% shares by Bayer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the Appellants to deposit ₹ 34,00,000 in the Investor protection Fund to compensate the shareholders is, therefore in violation of the principles of natural justice. 159. In any case as stated in this order since the Respondent has not made out a case to hold the Appellant guilty of indulging in insider trading no action is called for under section 11, 11B of the Act read with regulation 11 of the SEBI Regulations on insider trading. Therefore, that part of the order directing Rakesh Agrwal to deposit a sum of ₹ 34,00,000/- with Investor Protection fund of BSE and NSE to compensate the investors who may come forward at a later period of time seeking compensation for the loss incurred by them in selling at a price higher than the offer price can not be sustained. The said part of the order is set aside. 160. SEBI has power to order adjudication under section 15 G and launch prosecution under section 24. In case the Appellant is aggrieved by the order of the adjudicating officer or the decision of the competent court in the criminal complaint, the Appellant is not short of appellate remedies. This Tribunal, is of the view that it is beyond its ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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