Securities and Exchange Board of India (SEBI): In the instant matter, the merchant banker was alleged of trading the unpublished price sensitive information (‘UPSI’) to the traders, who are the noticee in the present matter, relating to merger of ABC Bearings Ltd. (‘ABC’) with Timken India Ltd (‘TIL’), the Adjudication Officer, Amit Kapoor found that on basis of preponderance of probabilities there was no clear indication that the UPSI was communicated to the Noticee and that the noticee had traded on basis of the alleged communication.
On 05-07-2017 ABC announced the merger of ABC with TIL on BSE through amalgamation and arrangement, resulting in increase of scrip price of ABC by 19.99 percent from a closing price of Rs. 238.10 on 04-07-2017 to closing price on Rs. 285.70 on 05-07-2017 on BSE. Upon detailed investigation by the SEBI, to ascertain whether insider trading was done in the scrip of ABC on the basis of unpublished price sensitive information (‘UPSI’) relating to merger of ABC with TIL, following violations were alleged:
Regulation 3(1) and 4(1) of SEBI (Prohibition of Insider Trading) Regulations, 2015 (‘PIT Regulations’) and Section 12A(d) and (e) of the SEBI Act, 1992 (‘SEBI Act’).
Regulation 4(1) of the PIT Regulations and Section 12A(d) and (e) of the SEBI Act.
Regulation 3(1) of the PIT Regulations and Section 12A(e) of the SEBI Act.
Show cause notice was issued to all the individuals who were alleged of committing the above-mentioned violations.
The Adjudicating Officer perused Section 12 of the SEBI Act which provides for prohibition of manipulative and deceptive devices, insider trading and substantial acquisition of securities or control and Section 15G which provides for penalty for insider trading. The relevant provisions of the PIT Regulations such as Regulation 3(1), 4(1) which provides for communication or procurement of unpublished price sensitive information and trading when in possession of unpublished price sensitive information, respectively, were also perused.
The Adjudicating Officer noted that allegations made against the noticees, were:
A scheme of amalgamation and arrangement to BSE and on the same day, TIL made a corporate announcement related to aforesaid merger to BSE and NSE at 01:22 AM and 08:42 AM respectively. The said corporate announcement, relating to merger of ABC with TIL through a scheme of amalgamation, was considered as UPSI in terms of provisions of PIT Regulations.
The UPSI related to merger of ABC with TIL had come into existence on 25-01-2017 i.e., the date on which the letter of intent relating to aforesaid merger was executed between ABC and TIL.
It was noted by the Adjudicating Officer, that during the investigation, SEBI identified individuals who were found to be allegedly connected with insider trading to the said UPSI and that they allegedly bought several shares of ABC during the UPSI period and sold these shares post UPSI period and earned huge profits. Regarding the Keynote Corporate Services Ltd (‘merchant banker’), a merchant banker responsible for providing fairness opinion pertaining to the merger, the Adjudicating Officer noted that the Vice President of Keynote and one of the noticee had interacted during the UPSI period.
Regarding the allegations of communicating insider information of UPSI to one of the noticee against the merchant banker and that the noticee had earned profits on basis of the said information of UPSI, the Adjudicating Officer noted that ‘fairness opinion’ comprises of objective evaluation of terms of a commercial transaction prepared by an independent third-party valuer. The Adjudicating Officer said that it was reasonably expected that the merchant banker had the information about proposed merger on the said date, hence, the merchant banker was considered as an insider in terms of Regulation 2(1)(g)(ii) of the PIT Regulations. Further, the Adjudicating Officer said that in order to find whether the allegations of insider trading were true, it was necessary to establish the preponderance of probabilities that noticee was a connected person, and the merchant banker had communicated the UPSI to the noticee, which was then relied upon by him for the trading and earning profits. The definition of ‘connected person’ was perused by the Adjudicating Officer, which states that ‘the person should be associated with the company by way of various means including frequent communication/ contractual, fiduciary or employment relationship/ professional relationship etc., which should allow him/ her access to unpublished price sensitive information or indicate that the person is reasonably expected to have such access’.
The Adjudicating Officer noted that the relationship between the noticee and the merchant banker existed much prior to the UPSI period and that the noticee was an active trader in the stock market. It was also noted that the noticee could have invested a huge amount in the ABC scrip, if he had access to the UPSI and had the intention of earning the profits through it. The Adjudicating Officer relied on Balram Garg v. SEBI1 wherein it was held that it is only through producing cogent materials (letters, emails, witnesses etc.) that the said communication of UPSI could be proved and not by deeming the communication to have happened owing to the alleged proximity between the parties. Further, the Adjudicating Officer noted that the connection between the merchant banker and the noticee was based on circumstantial evidence i.e., trading pattern, timing of execution of trades and absence of email communication provided by Noticee pertaining to the UPSI period, however, it was said that on basis of preponderance of probabilities there was no clear indication that the UPSI was communicated to the Noticee and that the Noticee had traded on basis of the alleged communication. Therefore, the Adjudicating Officer said that the Noticee was not established as a ‘connected person’, as per the definition and there was no merit in the allegations against the Noticee.
Regarding the allegations of earning profits against five other Noticees’, the Adjudicating Officer assessed the probability of connections. The Adjudicating Officer said that one of the Noticee who was representing the Statutory Auditor of ABC and attended meetings pertaining to the proposed merger, was in possession of UPSI at most by 01-06-2017, and therefore, was an insider in terms of Regulation 2(1)(g)(ii) of the PIT Regulations. The Adjudicating Officer noted that the representor of Statutory Auditor was alleged of communicating the said UPSI to another Noticee who was one of the partners in the Statutory Auditor of ABC and similarly the partner was alleged of communicating the said UPSI to his mother. On consideration of ‘preponderance of probabilities’ i.e., majority of probabilities indicated that the partner was ‘reasonably expected’ to have access to the UPSI, the Adjudicating Officer found that the partner and representor of Statutory Auditor of ABC had violated the provisions of Regulation 3(1) of the PIT Regulations and Section 12A(e) of the SEBI Act and the partner’s mother had violated the provisions of Regulation 4(1) of the PIT Regulations and Section 12A(d) and (e) of the SEBI Act. As a monetary penalty, Rs. 15,00,000/- penalty was imposed on the partner’s mother and the partner was asked to pay Rs. 10,00,000/- as a penalty. The representative of Statutory Auditor of ABC was penalised with an amount of Rs. 10,00,000/-.
The Adjudicating Officer said that the Chief Financial Officer of the ABC (‘CFO’) had violated the provisions of Regulation 3(1) of the PIT Regulations and Section 12A(e) of the SEBI Act, and the CFO’s son had also violated the provisions of Regulation 4(1) of the PIT Regulations and Section 12A(d) and (e) of the SEBI Act on the basis of test of preponderance of probabilities. Hence, the CFO was subjected to monetary penalty of Rs. 10,00,000/- and Rs. 20,00,000/- penalty was imposed on his son.
[In the matter of ABC Bearings Ltd. Adjudication Order No. Order/AK/AS/2023-24/29281-29829, decided on 18-09-2023]
Advocates who appeared in this case :
Sumit Agarwal, Partner; Pratham Darad, Principal Associate, Regstreet Law Advisors represented Merchant Banker Official