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SEBI’s consent orders are seen as a quick escape mechanism for anyone who is caught violating market regulations and the amount paid would depend on the skills of the lawyer who negotiates the settlement
Market regulator the Securities and Exchange Board of India (SEBI) has again let off Stewart & Mackertich Wealth Management, earlier known as SMIFS Securities with a fine of Rs2.5 crore in the DSQ Software case. However, this is not the first time that the market regulator has allowed the company to get off the hook through consent orders.
The latest order on 18th July, issued by Dr KM Abraham and Prashant Saran, both whole-time members of SEBI, says, "The investigation prima facie revealed that SMIFS Securities had executed 47 synchronised transactions on behalf of promoter associated entities of DSQ Software Ltd. Therefore, it was alleged that the applicant created artificial volume in the scrip, thereby violating the provisions of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2005, SEBI (Stock Brokers & Sub-brokers) Regulations, 1992, and the provisions of SEBI SMD circular no SMDRP/POLICY/Cir-32/99 dated September 14, 1999."
Following the investigation, SEBI initiated an inquiry and issued a show-cause notice to SMIFS Securities on 13 September 2006. While the proceedings were in progress, on 4 September 2007, SMIFS Securities submitted a proposal for settlement under terms of a SEBI circular issued on 20 April 2007. However, on 12 March 2009, SEBI rejected the settlement proposal.
SMIFS Securities submitted a revised proposal on 12 October 2010 and showed willingness to pay a fine of Rs2.5 crore. The high powered advisory committee constituted by SEBI considered the consent terms proposed by SMIFS Securities and recommended to accept the settlement on payment of Rs2.5 crore. On 4 July 2011, SMIFS Securities remitted Rs2.5 crore towards settlement, without admitting or denying the charges and SEBI disposed off the pending inquiry proceedings.
SMIFS Securities was allowed to also get away in 2008 with payment of a fine of a mere Rs3 lakh, on charges of dealing with unregistered sub-brokers, failing to segregate clients' funds and securities and failing to maintain a database of its clients.
In 2004, the market regulator twice rejected the applications of Wealth Management Advisory Services (WMAS) for a portfolio manager licence after it found SMIFS Securities, SMIFS Capital Markets and SMIFS Capital Services were associates of WMAS. "As a capital market regulator, SEBI cannot ignore the connections the applicant company has with the persons who indulged in manipulation in the market," TM Nagarajan, a then whole-time member of SEBI, had said.
The same year, SEBI also rejected SMIFS' application for registration as a merchant banker. In an order issued on 6 August 2004, Mr Nagarajan, said, "An intermediary in the securities market plays an important role and hence if the intermediary is not a fit and proper person, it may act to the detriment of the interest of the investors. In view of the pending proceedings against the associates of the applicant, it is felt that grant of certificate of registration to the applicant company to act as a merchant banker may prove to be detrimental to the interest of the investors."
Earlier this year, in what was perhaps the biggest settlement through a consent order, the market regulator barred Anil Ambani, chairman of the Anil Dhirubhai Ambani group (ADAG), and four of its directors from investing in the markets till December 2011. SEBI also asked Anil Dhirubhai Ambani group companies Reliance Infrastructure (RelInfra) and Reliance Natural Resources (RNRL), which were merged with Reliance Power (RelPower), not to invest in the secondary markets-other than mutual funds-till December 2012.
The market regulator settled the matter with these ADAG companies after the Anil Ambani group, RelInfra, RNRL and its directors collectively paid Rs50 crore as the settlement amount. The case involved a probe into certain market "dealings" by the two ADAG companies, RelInfra and RNRL.
According to Watchoutinvestors.com, a site sponsored and aided by Investor Education and Protection Fund, in the period from 30 October 2001 to 12 August 2011, SEBI has reached a settlement, or passed a consent order for cases involving 538 companies.
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A hard-hitting confidential letter from UK Sinha, SEBI chairman, once more proves the seamy underbelly of the regulator under former chief CB Bhave. Moneylife alone has been reporting about this seamy side for two years now
Barely four months into his job, UK Sinha was delivered a blow that could have given us a second consecutive lame-duck chairman at the Securities and Exchange Board of India (SEBI). In a bizarre move, Dr KM Abraham, the highly controversial former Whole Time Director at SEBI wrote a letter to the Prime Minister accusing the Income-Tax Department of harassing him, over the purchase of an apartment in Mumbai (we will come to the details later). He also accused Finance Ministry officials of interference in his work-"with the knowledge of Finance Minister Pranab Mukherjee". And now, it turns out, that his sharpest and most specific allegations were reserved for UK Sinha, his new boss, for interfering in several high-profile cases! Was the last move a deliberate and well-planned strategy by some interested sections to maim Mr Sinha from the very start?
Mr Sinha has reacted with an equally hard-hitting letter, which Moneylife has reviewed. The letter exposes several of the murky goings-on during the past three years under CB Bhave, whose ally in the process were two key members of SEBI. Remember, during that period, Mr Bhave has always positioned himself as a champion of the small investor and a crusader against corporate malpractices. Moneylife alone has been reporting with persistence the real murky practices inside SEBI.
Curiously, only select parts of the Sinha letters have been released to the media so far, although the reporters claim to have perused them. Moneylife now has access to UK Sinha's 13-page letter but not the one written by Dr KM Abraham to the Prime Minister. However, the allegations that Dr Abraham makes are clear from the SEBI Chairman's response.
The first six pages of Mr Sinha's letter are a long account of how he works, the effort he has made to understand SEBI's functioning and the fact that he consults executives at all levels and seeks formal briefing notes before making important decisions or meeting people. He then proceeds to address specific allegations made by Dr Abraham about Sinha's interference in several high-profile cases. One, the SEBI board's decision to declare three orders by a two-member bench against the National Securities Depository Limited (NSDL) as non-est or void. Two, the order against the Sahara group's debentures and Reliance Industries' attempt to file consent proceedings. Three, the rejection of MCX-SX's application to set up a stock exchange. Four, the Bank of Rajasthan case and finally, refusing to give Dr Abraham a job in Mumbai as director of the National Institute of Securities Markets (NISM) by bending the rules.
The letter is probably the first recorded case where wild and sweeping allegations would have been made against a new SEBI chairman in less than three months of taking charge. It is all the more surprising, since Dr Abraham, an IAS officer (like UK Sinha) from the Kerala cadre and a doctorate from the University of Michigan, didn't quite set the capital market ablaze with path-breaking moves or regulatory orders during his three-year tenure.
Instead, he was seen as a zealous yes-man of the former chairman. So, what are his motives? In fact, his allegations suggest a desperate attempt to prevent a reversal of two crucial orders involving NSDL and MCX-SX while the remaining issues are only to provide the appearance of a broader problem. Newspaper Mint claims that the Central Vigilance Commission (CVC) now plans to probe Dr Abraham's letter. This will give an interesting twist to the SEBI saga, because if CVC looks at SEBI, it will hit a goldmine of favoured and twisted decisions that stink. For starters, it can check about how punishments and penalties were decided in the past three years and then compare it to Mr Sinha's four-month stint. To come back to Mr Sinha's replies to Dr Abraham's allegations, here are some facts he points out in his letter.
MCX-SX case: This case is before the Bombay High Court after Dr Abraham rejected MCX-SX's stock exchange application under the "fit and proper" person criteria. Mr Sinha's letter points out that in this case, MCX-SX has alleged under oath "bias in the mind of Dr Abraham" and also complained about him to the CVC. (Indeed, apartments acquired by SEBI Members, Dr Abraham and MS Sahoo, in the very same Kohinoor City Complex in which the National Stock Exchange acquired 80,000 sq feet of space and flats for senior executives has been reported to the CVC. UK Sinha had given the two Members a clean-chit in this regard). According to Mr Sinha's letter, Dr Abraham apparently alleged that SEBI's position has been "compromised in this matter". His main grouse seems to be that the Chairman asked to see the affidavit that was filed in court. Mr Sinha calls the allegation "completely misconceived, false and not borne out by facts". Indeed, recent developments in the case, do suggest that SEBI strongly backs its order against MCX-SX. But that is probably what Dr Abraham's letter intended to achieve.
NSDL case: According to Mr Sinha, Dr Abraham pushed hard to ensure that SEBI does not reverse its stand in the NSDL matter, where two orders of a board bench were declared non-est or void. Mr Sinha says, Dr Abraham was unhappy about it. "My advice to him was that in the face of strong direction from the Hon'ble Supreme Court and the advice received from the SEBI Counsel, it would not be in SEBI's interest or in public interest to do so".
Sahara: In this case, the allegation is that Mr Sinha "discouraged" Dr Abraham from issuing a public notice about the fact that the stay on SEBI's order was vacated by the Lucknow bench of the Allahabad High Court. Mr Sinha dismisses it as a "figment of imagination" and clearly, there is no public perception about any softening of SEBI's stand.
Reliance Industries/ADAG case: Dr Abraham seems upset that Mr Sinha took interest in this case and discussed "the background of how and in what manner the settlement amount (of Rs50 crore in the Anil Dhirubhai Ambani Group case) was arrived at. He points out that the file had remained with Dr Abraham and no decision was taken on the matter until he demitted office.
Bank of Rajasthan: This pertains to the listing of Bank of Rajasthan shares after a lawsuit by ICICI Bank was withdrawn. It is not clear how Sinha is alleged to have tried to influence this decision. Mr Sinha encloses a note by Dr Abraham to establish that permission to list was in fact granted by the Member himself.
Chairman UK Sinha’s analysis of the “Possible Causes” for Dr KM Abraham’s (former whole time member of SEBI) many allegations against him and finance ministry officials, includes anger, delusion, insecurity complex, severe emotional stress and many others
SEBI chairman UK Sinha's first six months in office have been a trial by fire. In his note, he analyses the "possible causes" for Dr Abraham's extraordinary action of levelling a series of serious charges against him. The explanation only points to the need for a major overhaul in the staffing and working of the capital market watchdog.
a) UK Sinha says that Dr Abraham circulated a note to the SEBI board wanting a resolution and discussion on his allegations that he was being harassed at the 'behest of a corporate entity' and at the instructions of certain officials of the Ministry of Finance mentioned in the note.
b) Mr Sinha then refers to what can only be termed Dr Abraham's strange sting operations inside SEBI. He writes, "He also told me that he keeps a recording of his phone calls and has got a device to record the private conversations that he has with people without alerting or letting the other person know that the conversation is being recorded by him. I told him that such conduct is unethical and unbecoming of a civil servant and he can selectively use it to harm other people without alerting them".
c) Mr Sinha says that "in his conversations he (Dr Abraham) made scathing comments on certain officials of the Ministry of Finance. The most severe ones have been reserved for the current joint secretary, capital markets who is from the same cadre as Dr Abraham".
d) Mr Sinha says, "I tried to counsel him to be moderate in his comments, but he appeared to be under severe emotional stress and a delusion that everybody was out to harm him and his family. He has also told that he comes from a well known media family of Kerala and that he is going to 'teach a lesson to everybody involved in harassing him'. His behaviour is being erratic and he seems to under some delusion about threat to his family. While the other WTM (Whole-Time Member) Mr Sahoo has also been facing a similar probe by the CBDR, he is facing the same stoically as a civil servant".
e) National Institute of Securities Management (NISM): If Mr Sinha is to be believed, despite his harassment, Dr Abraham was keen to hang on as Director of NISM, a hugely well-funded body that is apparently not accountable to either the CVC or the Comptroller and Auditor General. Mr Sinha's letter says that one week before his departure, Mr Bhave had recommended Dr Abraham's appointment for a 5-year term on a compensation of Rs2.50 lakh per month and also house, car and other benefits. He says, "However, Mr Bhave hesitated in passing the final orders in his capacity as Chairman, SEBI—and marked it for his successor to take a decision. Dr Abraham has raised this matter several times with me in person and requested me to the point of embarrassment that I should clear the file for his appointment". Mr Sinha explains that the rules required the selection committee to put up three names, but in this case only Dr Abraham's name was recommended.
f) According to Mr Sinha's letter, Dr Abraham was keen on staying on in Mumbai for family reasons and said that 'maintaining two establishments would lead to financial hardship to him. Maybe this was one of the reasons for the afterthought in his mind in inventing these allegations. It is also a matter of record and public knowledge that Dr Abraham and Mr Sahoo were expecting an extension of their tenure from 3 years to 5 years. The government in its wisdom decided not to grant extension". All these decisions, he says, were taken before he came to SEBI. Indeed, even Mr Bhave had lobbied hard for his term to be extended to 5 years.
In our view, the very fact that a new SEBI chairman is constrained to answer to such allegations from an outgoing member with a dubious record, just four months after taking charge, points to a deep malaise in the capital market regulatory body. Moneylife has already argued that the SEBI chairman cannot be allowed to bring in a coterie of officials (as Mr Bhave and Mr Damodaran were allowed to do), who owe allegiance to the chairman and not to the organisation or public interest. Also, key departments such as investigation, secondary markets and legal must have a degree of independence and not operate at the whims of extraordinarily powerful Whole Time Members (WTMs) on a short stint.