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TMI Blog2020 (10) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... . Deloitte, a private independent professional agency was appointed and a report was filed and other private investigators were also engaged to find out whether any profits were made by the brokers. On 3.7.2018, a second show cause notice was issued and a full-fledged encquiry by SEBI was conducted. The enquiry was held from February 2019 to April 2019. On 30.04.2019, SEBI passed an order of imposing a disgorgement penalty of ₹ 624.00 Crores for certain failures for not having safeguards. However, no case was made out against NSE for fraud - NSE had preferred an appeal before the Securities Appellate Tribunal (SAT). Before the Securities Appellate Tribunal, the appeal was also heard in length and reserved for orders on 05.03.2020. The petitioner also has impleaded himself in the appeal, besides filing an independent appeal. From the above, it is evident that the representation of the petitioner has already been disposed of. Section 6(3) of the Securities Contracts (Regulation) Act, 1956, mentions about the power of the Central Government to call for periodical reports or direct enquiries to be made. Already show cause notice was issued under Section 11 of the Securities Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough co-location service had wrongfully gained several crores of rupees for the past five years, which amounts to a scandal. While so, an Expert Committee to conduct an independent investigation, based on the letters of a whistle blower was appointed by the SEBI Technical Advisory Committee. As per the report of the said Committee, as, there was no load balancer and randomizers, a few brokers were able to log on to the fastest dissemination servers. There is no adequate system in place to check this fraud, which allowed the brokers to have unfair and illegal advantage. In the report it is stated that NSE had not fully cooperated with the committee. 5. It is further alleged by the petitioner that NSE had once again tried to sabotage the regulatory enforcement action by SEBI as the second attempt. However, NSE had refuted the findings of the report to SEBI. Petitioner has further alleged that there was one more attempt by the then Managing Director of NSE to sabotage the regulatory enforcement action by SEBI. Thereafter, an independent professional entity was pressed into service to investigate the following: (a) Whether norms of fair access were breached; (b) Whether some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Yet another representation to the respondents on 21.08.2018 was sent by the petitioner. The same having been received by them on 27.08.2018, no action has been taken and hence the petitioner has approached this court seeking a mandamus directing the respondents to dispose of the representation dated 21.08.2018. 11. NSE has filed counters alleging that the petitioner in both the writ petitions, is a lawyer practising in this Hon'ble High Court. He has no locus standi to even seek for a mandamus, as at the relevant time between 2010 and 2014 or even later, the petitioner had never availed the co-location service provided by NSE nor is he aggrieved as a broker or an investor or even as the user of the NSE service. Since he has not suffered any legal injury as per the alleged fraud, he cannot be called an aggrieved person to maintain the writ petitions. 12. Secondly, it is mentioned that the writ petitions are filed in the welfare of the public. There is no public interest, as trading in the stocks is only a private interest, therefore, the petitioner, who is in no way connected with either of the organisation or suffered any loss or damage, cannot maintain the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, FIUIND, New Delhi apart from other authorities, like Prime Minister's Office, Enforcement Directorate, Competition Commission of India, Serious Fraud Investigation Office and Ministry of Corporate Affairs. 16. It is further stated that a representation was considered and a decision as deemed fit was also already taken. Being an intelligence organization, FIU-IND, cannot be required to divulge the details of action taken on the basis of individual's representation or complaint, as it may have severe repercussion in the outcome of investigations/actions by other investigative/law enforcement agencies. The learned Assistant Solicitor General also mentioned that the copy of the report was available with him and unless and otherwise the court wanted to see that, it will not be shared with anyone. 17. In the above background, the interest of the petitioner is only private and if the same is a public interest, the locus will be tested in a different way. The term dual test is whether the petitioner is a person aggrieved, as admittedly, he is an advocate and had never traded with the NSE nor had suffered any loss on account of the alleged co-location service. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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