Order against Shri Tushar S. Jhaveri

1. Vide order dated December 28, 2004, issued by Securities and Exchange Board of India (hereinafter referred to as ‘SEBI’), I was appointed as the Adjudicating Officer under Rule 3 of Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995 to enquire into and to adjudge under Sec.15-I of Securities and Exchange Board of India Act, 1992, the alleged violation of 11C of Securities and Exchange Board of India Act, 1992 against Tushar S. Jhaveri, sub broker of Rajesh Jhaveri Stock Brokers Ltd., Member of Ahmedabad Stock Exchange. Shri Tushar S. Jhaveri is having his  address at A-11, Lavaniya Apartment, Lavaniya Society, Vasna, Ahmedabad – 380 007. For the sake of convenience, the said Shri Tushar S. Jhaveri will be referred hereinafter in this order as ‘the noticee’. 
   
   
    
2. As per the information provided to me by SEBI, SEBI conducted investigation in to the alleged price manipulation in the shares of Monalisa Infotech Ltd. During the course of the said investigation, the investigating authority Shri P.K.Kuriachen vide his letter dated December 18, 2002 advised the noticee to furnish information with regard to the trading in the scrip of Monalisa Infotech Ltd. There was no reply to this letter by the noticee. 
3. The investigating authority issued summons dated February 05, 2003 to the noticee, directing the noticee to appear in person on February 14, 2003 before the investigating authority at the office of the investigating authority at Mumbai  along with documents as per the annexure to the said summons. As per the unauthenticated photocopies of documents made available to me by SEBI, the aforesaid summons dated February 05, 2003 was sent by speed post - acknowledgement due and the same was acknowledged by the noticee. The noticee vide his letter dated February 12, 2003 confirmed the receipt of the summons dated February 05, 2003 and expressed his inability to appear before the investigating authority on February 14, 2003. The noticee further requested to grant twenty days time to appear before the investigating authority.
   
    
4. The investigating authority issued one more summons dated March 03, 2003 to the noticee, directing the noticee to appear in person on March 10, 2003 before the investigating authority along with the documents / information as per the annexure to the said summons. As per the unauthenticated photocopies of documents made available to me by SEBI, the aforesaid summons dated March 03, 2003 was sent by speed post - acknowledgement due and the same was received by the noticee. However, it was alleged that there was no compliance of the said summons by the noticee.
   
    
5. In view of the above, I issued a notice dated February 3, 2005 to the noticee under Rule 4(1) of Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995 calling upon the noticee to show cause as to why an inquiry should not be held against him and penalty be not imposed under Sec. 15A(a) of Securities and Exchange Board of India Act, 1992. The said notice dated February 3, 2005 was sent to the noticee by registered post with acknowledgment due. From the postal acknowledgement received by my office, it was noticed that the aforesaid notice dated February 03, 2005 was received by the noticee. Since there was no reply to the said notice by the noticee within 14 days, the time which was stipulated by me for the noticee to file his reply, I was of the opinion that an inquiry should be held in the matter and accordingly a notice of inquiry dated March 24, 2005 in terms of Rule 4(3) of Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalty by Adjudicating Officer) Rules, 1995 was issued to the noticee fixing April 15, 2005 as the date of inquiry. It was advised that the noticee or his authorised representative / lawyer may appear for the inquiry at my office at Mumbai on the above date. The said notice was sent by speed post acknowledgment due. The said notice of inquiry dated March 24, 2005 was received by the noticee as evident from the acknowledgement card received by my office. 
   
    
6. On April 15, 2005, no authorised representative or lawyer of the noticee appeared before me. Therefore, I have decided to proceed with the inquiry in the absence of the noticee in terms of Reg. 4 (7) of Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalty by Adjudicating Officer) Rules, 1995 as I was of the opinion that the noticee failed to appear without any sufficient cause. 
   
    
7. Before deciding the issues which require to be examined by me, the provisions of Securities and Exchange Board of India Act, 1992 with respect to the issuance of summons by the investigating authorities and the consequences of non- compliance are perused by me. Sec. 11C of Securities and Exchange Board of India Act, 1992, interalia provides that the investigating authority may require any intermediary or any person associated with securities market in any manner to furnish such information to or produce such books, or registers, or other documents, or record before him or any persons authorized by it. Sec. 15A (a) of Securities and Exchange Board of India Act, 1992 provides for imposition of monetary penalty of Rupees one lakh for each day during such failure continues or Rupees one crore, whichever is less by the Adjudicating Officer in case any person, who is required under Securities and Exchange Board of India Act, 1992 or any rules or regulations made thereunder to furnish any document, return or report, fails to furnish the same.
   
    
8. It was alleged by SEBI that the noticee failed to comply with the summons dated February 5, 2003 and March 03, 2003 issued by the investigating authority as mentioned above.
   
    
9. The noticee did not dispute the fact that the investigating authority of SEBI issued the summonses dated February 5, 2003 and March 03, 2003. The noticee also did not dispute the receipt of summonses by him. Further, from a photocopy of postal acknowledgment made available to me by SEBI and subsequent reply of the noticee to the summons dated February 5, 2003, I noticed that the said summonses were received by the noticee. Therefore, I find that non- compliance with the summons issued by the investigating authority of SEBI by the noticee is established. 
   
    
10. I also noticed that sufficient opportunity was given by the investigating authority to the noticee by issuing two summonses from time to time. I also observe that the first summons i.e February 05, 2003 issued by SEBI directing the noticee to appear before the investigating authority alongwith documents as per the annexure to the said summons which was duly acknowledged by the noticee. The noticee in his letter dated February 12, 2003 informed SEBI that he is unable to appear before the investigating authority and requested for grant of 20 days time. Further, as per the request of the noticee, the investigating authority issued one more summons dated March 03, 2003 directing the noticee to appear before the investigating authority on March 10, 2003. From this I noted that the investigating authority gave almost a month time to the noticee to comply with the summons.  The said summons was sent by Speed Post with acknowledgement due, which was duly acknowledged by the noticee. However, there was no compliance by the noticee to the said summons.
    
     
11. I noted that there is an allegation that the noticee executed various circular transactions at ASE and BSE and created artificial volume in the scrip of Monalisa Infotech Ltd., for which enquiry under Securities and Exchange Board of India (Procedure for Holding Enquiry by Enquiry Officer and Imposing Penalty) Regulations, 2002 was also initiated against the noticee. It is also noticed that the information sought by the investigating authority was very crucial information for the investigation of the price manipulation in the scrip of Monalisa Infotech Ltd. By his repeated failure to comply with the summonses, the noticee hampered the process of investigation. In view of the above, I find that non-compliance with the summons issued by the investigating authority of SEBI by the noticee is established. 
    
     
12. Since the failure to appear before the investigating authority of SEBI by the noticee is established, the quantum of penalty has to be decided by me. 
     
13. As I mentioned above, Section 15A (a) of Securities and Exchange Board of India Act, 1992 prescribes a penalty of Rs. one lakh for each day during which the failure to furnish any documents etc. to SEBI continues or Rs. One crore whichever is less. 
    
     
14. To determine the quantum of penalty under Section 15A (a), I considered the following factors as provided in section 15J of Securities and Exchange Board of India Act, 1992 viz.(a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default ; (b) the amount of loss caused to an investor or group of investors as a result of the default and; (c) the repetitive nature of the default.
    
     
15. As regards the disproportionate gain or unfair advantage there are no quantifiable figures available on record with respect to the default of the noticee. There are also no figures or data on record to quantify the amount of loss caused to an investor or group of investors as a result of the default. Whereas the repetitive nature of the default is concerned it is observed that the investigating authority issued two summonses and the noticee failed to appear before the investigating authority on these two occasions. This shows that the default is of repetitive nature. 
    
     
16. I have also considered the decision of the Hon’ble Securities Appellate Tribunal (SAT) in the matter of Mayfair Paper & Board Pvt. Ltd. v. SEBI (Appeal No. 95 of 2004). Adjudication in the said matter was initiated by SEBI for the non-compliance of summons issued by the investigating authority of SEBI by Mayfair Paper & Board Pvt. Ltd. SAT further held that provision for enhanced penalties in the year 2002 does not mean that SEBI should impose sky high penalties. I have considered all the aspects of the said judgment of SAT.
     
    
    
    ORDER
    
    
    
    
    
17. From the preceding paragraphs of this order, it can be seen that the non- compliance of summons issued by the investigating authority by the noticee is established and by his repeated failure to comply with the summons, the noticee hampered the process of investigation. In this matter, the information sought by the investigating authority from the noticee was with respect to the details of purchases and sales made by the noticee in the scrip of Monalisa Infotech Ltd., off market trades and statement of account of bank evidencing payments made and received in the matter. I note that the information sought by the investigating authority is privy only to the noticee and there was no scope to the investigating authority to collect the information from any other sources.  I also note that noticee by choosing not the appear before the Adjudicating Authority and also not to reply to the show cause notice issued by the Adjudicating Authority has left me with a conclusion that  there is no mitigating factor which will lead me to take lenient view in the matter. Therefore in exercise of the powers conferred under section 15-1(2) read with Sec. 15 A(a) of the Securities and Exchange Board of India Act, 1992 and Rule 5 of the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995, I hereby impose a penalty of Rs.2,00,000/- (Rupees Two lakhs only) on Shri Tushar S. Jhaveri, sub broker of Rajesh Jhaveri Stock Brokers Ltd. The noticee shall pay the said amount of penalty by way of demand draft in favour of “SEBI- Penalties Remittable to Government of India”, payable at Mumbai within 45 days of receipt of this order. The said demand draft should be forwarded to Shri P. K. Nagpal, Chief General Manager, Securities and Exchange Board of India, Mittal Court, ‘B’ Wing, 224, Nariman Point, Mumbai-400021.
    
    
18. In terms of Rule 6 of the SEBI (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995, copies of this order are sent to the noticee and also to Securities and Exchange Board of India.  

Date: May 16, 2005                                                          A. Chandra Sekhar Rao

Place: Mumbai                                                                 Adjudicating Officer