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TMI Blog2022 (8) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the case and other factors, before considering the aspect of condonation of delay in terms of Section 473 of CrPC. The approach of the High Court of adjourning adjudication of the interim application seeking disclosure of documents cannot be appreciated. Ideally, the High Court ought to have considered the interim application before dealing with the limitation aspect. Initiation of criminal action in commercial transactions, should take place with a lot of circumspection and the Courts ought to act as gate keepers for the same. Initiating frivolous criminal actions against large corporations, would give rise to adverse economic consequences for the country in the long run. Therefore, the Regulator must be cautious in initiating such an action and carefully weigh each factor. In ordinary course, this Court would have remanded the matter for adjudication by the High Court on the interim application moved by the appellant seeking such disclosure. However, arguments have been extensively advanced before this Court touching upon important aspects of criminal jurisprudence which require consideration. Moreover, the facts stated above, clearly indicate that the acts which are sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are the cornerstone of the principles of open justice. Even for adjudication of condonation of delay under Section 473, CrPC, the modus of initiation of criminal complaint and the conclusions reached therein are relevant in the facts and circumstance of the case. The simple test in this case is whether SEBI has launched the prosecution on the basis of the investigation report alone. The answer seems to be No by SEBI s own admission in its reply where it states that the investigation report was inconclusive and hence further scrutiny of the transactions by experts was called for. That being the case, further Reports and opinions obtained, from whomsoever it may be, are only an extension of the investigation to help SEBI as a Regulator to ascertain the facts and reach conclusions for prosecution or otherwise. We do not agree with the contention of the learned Senior Counsel for SEBI that the first opinion of Justice (Retd.) B. N. Srikrishna is covered by legal privilege under Section 129 of the Evidence Act. Same is the case with the second opinion of Justice (Retd.) B. N. Srikrishna and the Report of Sh. Y. H. Malegam, which are nothing but a continuation of the fact finding exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid complaint, the SEBI appointed an investigating officer to inquire into the aforesaid complaint. Accordingly, a report was submitted by the said investigating officer on 04.02.2005. 4. It may be necessary to note that SEBI chose not to take any action with respect to the aforesaid letter. The appellant alleged that a note was prepared by the Legal Affairs Department of the SEBI on 17.05.2006, wherein it was noted that the report had not brought out any specific violation of any legal provision by RIL. However, the note was said to have observed that there was requirement of an opinion by an external expert inter alia on the possibility of initiating appropriate criminal proceedings against RIL. In this context, a retired Judge of this Court, Justice (Retd.) B.N. Srikrishna was approached by SEBI for the same. The learned retired Judge is stated to have given his first opinion to SEBI, which was divulged by SEBI in parts, to the appellant herein. 5. On 16.04.2010, SEBI sent a letter to RIL alleging that RIL had funded purchase of its own shares by 38 related entities and thereby violated Section 77 (2) of the Companies Act, 1956 and consequently, violated Regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond time. Justice (Retd.) B.N. Srikrishna addressed a letter dated 26.07.2017 to the SEBI in the following manner: "Considering the importance of the matter I am of the view that some very senior person should be consulted in this matter. I would suggest SEBI to approach Mr. Y.H. Malegam, Chartered Accountant, who may be consulted in this matter. He is a person of high standing and great repute. In my opinion, he would be the most appropriate person to advise us as to whether the monies transferred to RUPL and RPTL were towards project advances and other charges or were merely round tripping. You may depute one senior person to meet him and discuss with him the facts. It would enable him to take a view in the matter and make a report to you. After the report of Mr. Malegam is received, you may further discuss the matter with me." 11. It is stated by the appellant that Mr. Y.H. Malegam, Chartered Accountant examined the records of RIL and various other companies and submitted his report to SEBI. 12. Based on the report of Mr. Y.H. Malegam, an opinion was sought from the learned retired Judge for the second time. 13. On 21.01.2019, the appellant addressed a letter to SEB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the SEBI Act, 1992 as amended in 2002, for having violated Regulations 3,5 and 6 of the SEBI (PFUTP) Regulations 1995, Regulation 11 of the SEBI (SAST) Regulations, 1997 and be further pleased to deal with the accused in accordance with the law. (b) That this Hon'ble Court may be pleased to issue the process against the accused for offences punishable under Sections 77(2) and 77A r/w Section 55A of the Companies Act, 1956." 17. On 30.09.2020, the SEBI Special Court dismissed the complaint filed by SEBI as being barred by limitation. 18. The aforesaid order has been challenged by SEBI in Criminal Revision Application No. 209 of 2020 before the High Court of Bombay. In the aforesaid proceedings, the appellant filed an application being IA No. 1945 of 2021, seeking the following documents: (i) Report of Sh. Y.H. Malegam, Chartered Accountant. (ii) Brief for opinion / Case for opinion prepared by SEBI for obtaining further written opinion of Hon'ble Mr. Justice (Retd.) B.N. Srikrishna. (iii) Revised written opinion issued by Hon'ble Mr. Justice (Retd.) B.N. Srikrishna. 19. The High Court after extensively hearing the arguments on the aforesaid application passed the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent appeal is not maintainable as there is no criminal complaint pending as on this date. The appellant cannot seek documents in a criminal revision against dismissal of the complaint on the ground of limitation. ii. The issue before the High Court was limited to the issue of limitation and the attempt of the accused to expand the proceedings to seek documents cannot be entertained. iii. That the impugned order was a mere adjournment order which has not affected any rights of the accused. Therefore, the appeal is not maintainable against such an adjournment order. iv. The law laid down in T. Takano v. Securities and Exchange Board of India, 2022 SCC Online SC 210, is not applicable to the present case as it was rendered in the context of investigation under different Regulations. v. The documents are being sought at a premature stage. If cognizance is taken by the trial Court, the accused would be entitled for the documents in terms of Section 207 of CrPC. Any attempt to seek documents beyond the scope of Section 207 CrPC cannot be accepted. vi. The opinion of the Retd. Judge and the report of the Chartered Accountant are clearly covered as part of litigation privi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm in which company is a partner; ii.) No funds was given by RIL to 34 entities to which NCDs were allotted; iii.) Ambanis were neither directors nor shareholders of the entities to whom shares were allotted; iv.) Ambanis were not allotted any shares pursuant to PPDIV issue. 7. In view of above, no action is required to be taken on the part of Ministry of Corporate Affairs. (Emphasis supplied) In this context, the re-examination of the complaint by SEBI ought to happen only after providing adequate opportunity to the accused to fully defend his case. 26. There is no doubt that the Special Court of SEBI in M.A. No. 686 of 2020 has dismissed the complaint of SEBI on the ground of limitation. Against such an order, SEBI has filed a Criminal Revision being Criminal Revision Application No. 209 of 2020 before the High Court which is pending. On perusal of this Criminal Revision Petition it is clear that SEBI has made the following prayer: (a) This Hon'ble Court be pleased to quash and setaside the impugned order dated 30th September, 2020 and direct the Ld. Special Court Judge to issue process against the Accused. (emphasis supplied) Interestingly, SEBI has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused. In the facts of the present case there were more than sufficient grounds for the Ld. Judge to primafacie be satisfied of the offence and issue process in the matter. …… W. The Ld. Judge failed to note that it was vitally necessary to take cognizance of the offences in the interest of justice under Section 473, keeping in mind the devious method of involving 38 companies and routing of funds in a preplanned and preordained sequence of transactions. If no cognizance is taken of such egregious offences, it would seriously harm the interest of the investors in the securities market. It is in the interests of justice that large conglomerates having lakhs of shareholders are not permitted to flagrantly violate the law and seek to escape prosecution. 27. Coming to the point of delay, inter alia the contention of SEBI is that the Court should have considered Section 473 of CrPC to condone delay having considered the facts and circumstances in proper perspective. At this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sively advanced before this Court touching upon important aspects of criminal jurisprudence which require consideration. Moreover, the facts stated above, clearly indicate that the acts which are sought to be prosecuted go back to the year 19921994, and over three decades have passed without there being any end to the litigation. In this regard, the Court intends to examine this important issue and pass appropriate orders to ensure that the adjudication is not delayed unnecessarily, ad infinitum. ISSUE II 31. This brings us to the issue as to whether the interim application seeking documents, filed by the appellant herein deserves to be allowed in the instant case. The respondents have raised objections for such disclosure on two counts: i. That such a request was already rejected by the High Court in an earlier writ petition filed by the appellant herein, when the settlement proceedings were on going; ii. That the respondents claim legal privilege, as against both the opinions of Justice (Retd.) B. N. Srikrishna and the Report of the Chartered Accountant, viz. Sh. Y.H. Malegam. 32. Coming to the first objection, there is no gainsaying the fact that the respondent (regulato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Settlement proceedings is to facilitate the Regulator to consider the feasibility of settlement in certain cases, without allowing a roving and fishing expedition. However, the findings of the High Court in the aforesaid case are of no avail to the SEBI, as we are at a stage when SEBI has invoked the provisions under the criminal law to prosecute the appellant herein. 35. At this juncture, SEBI relies on Regulation 29 of Securities and Exchange Board of India (Settlement Proceedings) Regulations 2018, which notes as under : CONFIDENTIALITY OF INFORMATION . 29. (1) All information submitted and discussions held in pursuance of the settlement proceedings under these regulations shall be deemed to have been received or made in a fiduciary capacity and the same may not be released to the public, if the same prejudices the Board and/or the applicant. 2) Where an application is rejected or withdrawn, the applicant and the Board shall not rely upon or introduce as evidence before any court or Tribunal, any proposals made or information submitted or representation made by the applicant under these regulations: Provided that this subregulation shall not apply where the settlemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SEBI's case that during the Settlement proceedings, the appellant had disclosed numerous documents, which mandated SEBI to reexamine its stand. Accordingly, the matter was referred to Justice (Retd.) B. N. Srikrishna for a second time. 41. Thereafter, Justice (Retd.) B. N. Srikrishna wrote back to SEBI asking them to consult Sh. Y. H. Malegam, a renowned Chartered Accountant to determine the culpability of the appellant and various directors. It is reported that this exercise had culminated in the Second opinion of Justice (Retd.) B. N. Srikrishna. 42. SEBI is a regulator and has a duty to act fairly, while conducting proceedings or initiating any action against the parties. Being a quasijudicial body, the constitutional mandate of SEBI is to act fairly, in accordance with the rules prescribed by law. The role of a Regulator is to deal with complaints and parties in a fair manner, and not to circumvent the rule of law for getting successful convictions. There is a substantive duty on the Regulators to show fairness, in the form of public cooperation and deference. 43. The duty to act fairly by SEBI, is inextricably tied with the principles of natural justice, wherein a party ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have access to information and possess opportunity to address arguments and counter arguments; (ii) fair trial, i.e., this will enable the parties to effectively participate in the proceedings; and (iii) transparency and accountability, i.e., the investigative agencies are held accountable through transparency and not opaqueness. Keeping a party abreast of the information that influenced the decision promotes transparency of the judicial process which was discussed in the aforesaid case in the following manner: "24. While the respondents have submitted that only materials that have been relied on by the Board need to be disclosed, the appellant has contended that all relevant materials need to be disclosed. While trying to answer this issue, we are faced with a multitude of other equally important issues. These issues, all paramount in shaping the jurisprudence surrounding the principles of access to justice and transparency, range from identifying the purpose and extent of disclosure required, to balancing the conflicting claims of access to justice and grounds of public interest such as privacy, confidentiality and market interest. An identification of the purpose of disclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (reliability) and the process (fair trial and transparency), it would be insufficient if only the material relied on is disclosed. Such a rule of disclosure only holds nexus to the outcome and not the process. Therefore, as a default rule, all relevant material must be disclosed." 45. There is no doubt that the set of facts portrayed herein are unique. The impugned action of the appellant hails back to the year 1994, and almost three decades have gone by without there being any light at the end of the tunnel. The investigation report by SEBI in 2005 was inconclusive about the alleged offence. There is even a communique by the Minister of Corporate Affairs, Union of India recommending closure of the case as they found nothing to further the prosecution under Section 77 of the Companies Act, 1956. In this light, SEBI's action to initiate a criminal complaint without providing the appellant an adequate opportunity to defend itself by releasing necessary Reports and other documents, cannot be appreciated by this Court as it is in gross violation of the appellant's right to natural justice. Recently, in S. P. Velumani v. Arappor Iyakkam, 2022 SCC Online SC 663, while dealing with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Affairs and private Business: And who would use that Freedom if they might be ensnared by it? This were to beget a Diffidence betwixt such who should, of all others, have the greatest mutual Confidence with one another; and this will make Men so jealous of their Advocates that they will lose their private Business, or succumb in their just Defence, rather than Hazard the opening of their Secrets to those who can give them no Advice when the case is Half concealed, or may be forced to discover them when revealed." In England, the Legal professional privilege is often classified under two subheadings: legal advice privilege and litigation privilege. Legal advice privilege comprises of communications between a client and his legal adviser, and is available when proceedings are in existence or contemplated. Litigation privilege on the other hand, covers a wider class of communications, such as those between the legal adviser and potential witnesses. 50. Coming to legal advice privilege in England, the House of Lords through Justice Carswell in Three Rivers District Council and others (Respondents) v. Governor and Company of the Bank of England (Appellants), [2004] UKHL 48, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an expert, it could have undertaken the exercise of further investigation by itself, which was not done. iii. SEBI ultimately took further steps, only because of the first opinion of Justice (retd.) B. N. Srikrishna. iv. The first opinion of Justice (retd.) B. N. Srikrishna is a part and parcel of the investigation and documents connected therewith. v. Moreover, certain documents have already been disclosed to the appellant herein. 54. The simple test in this case is whether SEBI has launched the prosecution on the basis of the investigation report alone. The answer seems to be 'No' by SEBI's own admission in its reply where it states that the investigation report was inconclusive and hence further scrutiny of the transactions by experts was called for. That being the case, further Reports and opinions obtained, from whomsoever it may be, are only an extension of the investigation to help SEBI as a Regulator to ascertain the facts and reach conclusions for prosecution or otherwise. 55. For the above reasons, we do not agree with the contention of the learned Senior Counsel for SEBI that the first opinion of Justice (Retd.) B. N. Srikrishna is covered by 'legal privil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divulge the information which exonerate it. Such cherrypicking by SEBI only derogates the commitment to a fair trial. In Nea Karteria Maritime Co Ltd v. Atlantic and Great Lakes Steamship Corporation, [1981] Com LR 138 at 139, Mustill J. held as under: 'I believe that the principle underlying the rule of practice exemplified in Burnell v British Transport Commission [1956] 1 QB 187 is that where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.' The aforesaid principle is often referred to as the 'Cherrypicking' principle. 58. In the case at hand, SEBI could not have claimed privilege over certain parts of the documents and at the same time, agreeing to disclose some part. Such selective disclosure cannot be countenanced in law as it clearly amounts to cherrypicking. 59. In view of the aforesaid discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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