Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003

[17th July, 2003]

In exercise of the powers conferred by Section 30 of the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Board hereby makes the following regulations, namely:—

Chapter I PRELIMINARY

Regulation - 1. Short title and commencement.

(1)     These regulations may be called the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003.

(2)     They shall come into force on the date of their publication in the Official Gazette.

Regulation - 2. Definitions.

(1)     In these regulations, unless the context otherwise requires,—

(a)      “Act” means the Securities and Exchange Board of India Act, 1992 (15 of 1992);

(b)      [1][“dealing in securities” includes:

(i)       an act of buying, selling or subscribing pursuant to any issue of any security or agreeing to buy, sell or subscribe to any issue of any security or otherwise transacting in any way in any security by any persons including as principal, agent, or intermediary referred to in Section 12 of the Act;

(ii)      such acts which may be knowingly designed to influence the decision of investors in securities; and

(iii)     any act of providing assistance to carry out the aforementioned acts.]

(c)      “fraud” includes any act, expression, omission or concealment committed whether in a deceitful manner or not by a person or by any other person with his connivance or by his agent while dealing in securities in order to induce another person or his agent to deal in securities, whether or not there is any wrongful gain or avoidance of any loss, and shall also include—

(1)     a knowing misrepresentation of the truth or concealment of material fact in order that another person may act to his detriment;

(2)     a suggestion as to a fact which is not true by one who does not believe it to be true;

(3)     an active concealment of a fact by a person having knowledge or belief of the fact;

(4)     a promise made without any intention of performing it;

(5)     a representation made in a reckless and careless manner whether it be true or false;

(6)     any such act or omission as any other law specifically declares to be fraudulent,

(7)     deceptive behaviour by a person depriving another of informed consent or full participation,

(8)     a false statement made without reasonable ground for believing it to be true.

(9)     the act of an issuer of securities giving out misinformation that affects the market price of the security, resulting in investors being effectively misled even though they did not rely on the statement itself or anything derived from it other than the market price.

And “fraudulent” shall be construed accordingly;

Nothing contained in this clause shall apply to any general comments made in good faith in regard to—

(a)      the economic policy of the government

(b)      the economic situation of the country

(c)      trends in the securities market or

(d)      any other matter of a like nature whether such comments are made in public or in private;

(e)      “Investigating Authority” means any [2][person] authorized by the Board to undertake investigation under Section 11-C of the Act;

(f)       “securities” means securities as defined in Section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956).

[3][(2) The words and expressions used and not defined in these regulations but defined in the Act, the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Depositories Act, 1996 (22 of 1996), the Companies Act, 2013 (18 of 2013), or any rules or regulations made thereunder shall have the same meanings respectively assigned to them in those acts, rules or regulations made thereunder or any statutory modification or re-enactment thereto, as the case may be.]

Chapter II PROHIBITION OF FRAUDULENT AND UNFAIR TRADE PRACTICES RELATING TO THE SECURITIES MARKET

Regulation - 3. Prohibition of certain dealings in securities.

No person shall directly or indirectly—

(a)      buy, sell or otherwise deal in securities in a fraudulent manner;

(b)      use or employ, in connection with issue, purchase or sale of any security listed or proposed to be listed in a recognized stock exchange, any manipulative or deceptive device or contrivance in contravention of the provisions of the Act or the rules or the regulations made there under;

(c)      employ any device, scheme or artifice to defraud in connection with dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange;

(d)      engage in any act, practice, course of business which operates or would operate as fraud or deceit upon any person in connection with any dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange in contravention of the provisions of the Act or the rules and the regulations made there under.

Regulation - 4. Prohibition of manipulative, fraudulent and unfair trade practices.

(1)     Without prejudice to the provisions of Regulation 3, no person shall indulge in a [4][manipulative,] fraudulent or an unfair trade practice in securities [5][markets].

[6][Explanation.— For the removal of doubts, it is clarified that any act of diversion, misutilisation or siphoning off of assets or earnings of a company whose securities are listed or any concealment of such act or any device, scheme or artifice to manipulate the books of accounts or financial statement of such a company that would directly or indirectly manipulate the price of securities of that company shall be and shall always be deemed to have been considered as manipulative, fraudulent and an unfair trade practice in the securities market.]

(2)     Dealing in securities shall be deemed to be a [7][manipulative] fraudulent or an unfair trade practice if it involves [8][any of the following]:—

(a)      [9][knowingly] indulging in an act which creates false or misleading appearance of trading in the securities market;

(b)      dealing in a security not intended to effect transfer of beneficial ownership but intended to operate only as a device to inflate, depress or cause fluctuations in the price of such security for wrongful gain or avoidance of loss;

[10][(c) inducing any person to subscribe to an issue of the securities for fraudulently securing the minimum subscription to such issue of securities, by advancing or agreeing to advance any money to any other person or through any other means;]

[11][(d) inducing any person for dealing in any securities for artificially inflating, depressing, maintaining or causing fluctuation in the price of securities through any means including by paying, offering or agreeing to pay or offer any money or money's worth, directly or indirectly, to any person;]

(e)   any act or omission amounting to manipulation of the price of a security [12][including, influencing or manipulating the reference price or bench mark price of any securities];

(f)    [13][knowingly] publishing or causing to publish or reporting or causing to report by a person dealing in securities any information [14][relating to securities, including financial results, financial statements, mergers and acquisitions, regulatory approvals,] which is not true or which he does not believe to be true prior to or in the course of dealing in securities;

(g)   entering into a transaction in securities without intention of performing it or without intention of change of ownership of such security;

[15][(h) selling, dealing or pledging of stolen, counterfeit or fraudulently issued securities whether in physical or dematerialized form : Provided that if:—

(i)       the person selling, dealing in or pledging stolen, counterfeit or fraudulently issued securities was a holder in due course; or

(ii)      the stolen, counterfeit or fraudulently issued securities were previously traded on the market through a bonafide transaction,

(iii)     such selling, dealing or pledging of stolen, counterfeit or fraudulently issued securities shall not be considered as a manipulative, fraudulent, or unfair trade practice;]

[16][(i) ***]

[17][(j) ***]

[18][(k) disseminating information or advice through any media, whether physical or digital, which the disseminator knows to be false or misleading in a reckless or careless manner and which is designed to, or likely to influence the decision of investors dealing in securities;]

[19][(l) ***];

(m)  [20][a market participant entering into transactions on behalf of client without the knowledge of or instructions from client or misutilizing or diverting the funds or securities of the client held in fiduciary capacity”];

(n)   circular transactions in respect of a security entered into between [21][persons including intermediaries to artificially] provide a false appearance of trading in such security or to inflate, depress or cause fluctuations in the price of such security;

(o)   [22][fraudulent inducement of any person by a market participant to deal in securities with the objective of enhancing his brokerage or commission or income;]

(p)   an intermediary predating or otherwise falsifying records [23][including contract notes, client instructions, balance of securities statement, client account statements];

(q)   [24][any order in securities placed by a person, while directly or indirectly in possession of information that is not publically available, regarding a substantial impending transaction in that securities, its underlying securities or its derivative;]

(r)    [25][knowingly] planting false or misleading news which may induce sale or purchase of securities.

[26][(s) [27](mis-selling of securities or services relating to securities market;

Explanation- For the purpose of this clause, “mis-selling” means sale of securities or services relating to securities market by any person, directly or indirectly, by—

(i)       knowingly making a false or misleading statement, or

(ii)      knowingly concealing or omitting material facts, or

(iii)     knowingly concealing the associated risk, or

(iv)    not taking reasonable care to ensure suitability of the securities or service to the buyer];

[28][(t) illegal mobilization of funds by sponsoring or causing to be sponsored or carrying on or causing to be carried on any collective investment scheme by any person.]

[29][Explanation [30](-1) For the purposes of this sub-regulation, for the removal of doubts, it is clarified that the acts or omissions listed in this sub-regulation are not exhaustive and that an act or omission is prohibited if it falls within the purview of Regulation 3, notwithstanding that it is not included in this sub-regulation or is described as being committed only by a certain category of persons in this sub-regulation.]

[31][Explanation-2 Market Participant shall include any person or entity registered under Section 12 of the Act and its employees and agents.]

Chapter III INVESTIGATION

Regulation - 5. Power of the Board to order investigation.

Where the Board, the Chairman, the member or the Executive Director (hereinafter referred to as “appointing authority”) has reasonable ground to believe that—

(a)      the transactions in securities are being dealt with in a manner detrimental to the investors or the securities market in violation of these regulations;

(b)      any intermediary or any person associated with the securities market has violated any of the provisions of the Act or the rules or the regulations, it may, at any time by order in writing, direct any [32][person] (hereinafter referred to as the “Investigating Authority”) specified in the order to investigate the affairs of such intermediary or persons associated with the securities market or any other person and to report thereon to the Board in the manner provided in Section 11-C of the Act.

Regulation - 6. Powers of Investigating Authority.

Without prejudice to the powers conferred under the Act, the Investigating Authority shall have the following powers for the conduct of investigation, namely:—

(1)     to call for information or records from any person specified in Section 11(2)(i) of the Act;

(2)     to undertake inspection of any book, or register, or other document or record of any listed public company or a public company (not being intermediaries referred to in Section 12 of the Act) which intends to get its securities listed on any recognized stock exchange where the Investigating Authority has reasonable grounds to believe that such company has been conducting [33][its activities] in violation of these regulations;

(3)     to 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 person authorized by him in this behalf as he may consider necessary if the furnishing of such information or the production of such books, or registers, or other documents, or record is relevant or necessary for the purposes of the investigation;

(4)     to keep in his custody any books, registers, other documents and record produced under this regulation for a maximum period of [34][* * *] six months [35][* * *]:

Provided that the Investigating Authority may call for any book, register, other document or record if the same is needed again:

Provided further that if the person on whose behalf the books, registers, other documents and record are produced requires certified copies of the books, registers, other documents and record produced before the Investigating Authority, he shall give certified copies of such books, registers, other documents and record to such person or on whose behalf the books, registers, other documents and record were produced;

(5)     to examine orally and to record the statement of the person concerned or any director, partner, member or employee of such person and to take notes of such oral examination to be used as an evidence against such person:

Provided that the said notes shall be read over to, or by, and signed by, the person so examined;

(6)     to examine on oath any manager, managing director, officer or other employee of any intermediary or any person associated with securities market in any manner in relation to the affairs of his business and may administer an oath accordingly and for that purpose may require any of those persons to appear before him personally.

[36][(7) to call for information and record from any person including any bank or any other authority or board or corporation established or constituted by or under any Central, State or Provincial Act in respect of any transaction in securities which are under investigation;

(8)   to make an application to the Judge of the designated court in Mumbai as notified by the Central Government for an order for the seizure of any books, registers, other documents and record, if in the course of investigation, the Investigating Authority has reasonable ground to believe that such books, registers, other documents and record of, or relating to, any intermediary or any person associated with securities market in any manner may be destroyed, mutilated, altered, falsified or secreted;

(9)   to keep in his custody the books, registers, other documents and record seized under these regulations for such period not later than the conclusion of the investigation as he considers necessary and thereafter to return the same to the person, the company or the other body corporate, or, as the case may be, to the managing director or the manager or any other person from whose custody or power they were seized:

Provided that the Investigating Authority may, before returning such books, registers, other documents and record as aforesaid, place identification marks on them or any part thereof;

(10) save as otherwise provided in this regulation, every search or seizure made under this regulation shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches or seizures made under that Code.]

Regulation - 7. Power of the Investigating Authority to be exercised with prior approval.

[37][* * *]

Regulation - 8. Duty to co-operate, etc.

(1)     It shall be the duty of every person in respect of whom an investigation has been ordered [38][under Regulation 5]—

(a)      to produce to the Investigating Authority or any person authorized by him such books, accounts and other documents and record in his custody or control and to furnish such statements and information as the Investigating Authority or the person so authorized by him may reasonably require for the purposes of the investigation;

(b)      to appear before the Investigating Authority personally when required to do so by him under Regulation 6 [39][* * *] to answer any question which is put to him by the Investigating Authority in pursuance of the powers under the said regulations.

(2)     Without prejudice to the provisions of [40][the Companies Act, 2013 (No. 18 of 2013)], it shall be the duty of every manager, managing director, officer and other employee of the company and every intermediary referred to in Section 12 of the Act or every person associated with the securities market to preserve and to produce to the Investigating Authority or any person authorized by him in this behalf, all the books, registers, other documents and record of, or relating to, the company or, as the case may be, of or relating to, the intermediary or such person, which are in their custody or power.

(3)     Without prejudice to the generality of the provisions of sub-regulations (1) and (2), such person shall—

(a)      allow the Investigating Authority [41][or any person authorized by him in this behalf] to have access to the premises occupied by such person at all reasonable times for the purpose of investigation;

(b)      extend to the Investigating Authority [42][or any person authorized by him in this behalf] reasonable facilities for examining any books, accounts and other documents in his custody or control (whether kept manually or in computer or in any other form) reasonably required for the purposes of the investigation;

[43][(c) provide to such Investigating Authority or any person authorized by him in this behalf any such books, accounts and records which, in the opinion of the Investigating Authority, are relevant to the investigation or, as the case may be, allow the Investigating Authority or any person authorized by him in this behalf to take computer print-outs thereof.]

Regulation - 9. Submission of report to the Board.

The Investigating Authority shall, on completion of investigation, after taking into account all relevant facts, submit a report to the appointing authority:

Provided that the Investigating Authority may submit an interim report pending completion of investigations if he considers necessary in the interest of investors and the securities market or as directed by the appointing authority.

Regulation - 10. Enforcement by the Board.

The Board may, after consideration of the report referred to in Regulation 9, if satisfied that there is a violation of these regulations and after giving a reasonable opportunity of hearing to the persons concerned, issue such directions or take such action as mentioned in Regulation 11 and Regulation 12:

Provided that the Board may, in the interest of investors and the securities market, pending the receipt of the report of the investigating authority referred to in Regulation 9, issue directions under Regulation 11:

Provided further that the Board may, in the interest of investors and securities market, dispense with the opportunity of pre-decisional hearing by recording reasons in writing and shall give an opportunity of post-decisional hearing to the persons concerned as expeditiously as possible.

Regulation - 11.

(1)     The Board may, without prejudice to the provisions contained in sub-sections (1), (2), (2A) and (3) of Section 11 and Section 11-B of the Act, by an order, for reasons to be recorded in writing, in the interests of investors and securities market, issue or take any of the following actions or directions, either pending investigation or enquiry or on completion of such investigation or enquiry, namely:—

(a)      suspend the trading of the security found to be or prima facie found to be involved in fraudulent and unfair trade practice in a recognized stock exchange;

(b)      restrain persons from accessing the securities market and prohibit any person associated with securities market to buy, sell or deal in securities;

(c)      suspend any office-bearer of any stock exchange or self-regulatory organization from holding such position;

(d)      impound and retain the proceeds or securities in respect of any transaction which is in violation or prima facie in violation of these regulations;

(e)      direct and intermediary or any person associated with the securities market in any manner not to dispose of or alienate an asset forming part of a fraudulent and unfair transaction;

(f)       require the person concerned to call upon any of its officers, other employees or representatives to refrain from dealing in securities in any particular manner;

(g)      prohibit the person concerned from disposing of any of the securities acquired in contravention of these regulations;

(h)     direct the person concerned to dispose of any such securities acquired in contravention of these regulations, in such manner as the Board may deem fit, for restoring the status quo ante;

[44][(2) Any final order passed under sub-regulation (1) shall be put on the website of the Board.]

Regulation - 11-A. [Manner of service of summons and notices issued by the Board.

(1)     A summons or notice issued by the Board under these regulations shall be served on the person through any of the following modes, namely—

(a)      by delivering or tendering it to that person or his duly authorised agent; or

(b)      by sending it to the person by fax or electronic mail or electronic instant messaging services along with electronic mail or by courier or speed post or registered post:

Provided that the courier or speed post or registered post shall be sent to the address of his place of residence or his last known place of residence or the place where he carried on, or last carried on, business or personally works, or last worked, for gain, with acknowledgment due:

Provided further that a summons or notice sent by fax shall bear a note that the same is being sent by fax and in case the document contains annexure, the number of pages being sent shall also be mentioned:

Provided further that a summons or notice sent through electronic mail or electronic instant messaging services along with electronic mail shall be digitally signed by the competent authority and bouncing of the electronic mail shall not constitute valid service.

(2)     In case of failure to serve a summons or notice through any one of the modes provided under sub-regulation (1), the summons or notice may be affixed on the outer door or some other conspicuous part of the premises in which the person resides or is known to have last resided, or carried on business or personally works, or last worked, for gain and a written report thereof shall be prepared in the presence of two witnesses.

(3)     In case of failure to affix the summons or notice on the outer door as provided under sub-regulation (2), the summons or notice shall be published in at least two newspapers, one of which shall be in an English daily newspaper having nationwide circulation and another shall be in a newspaper having wide circulation published in the language of the region where that person was last known to have resided or carried on business or personally worked for gain.][45]

Regulation - 12. Suspension or cancellation of registration.

(1)     The Board may, without prejudice to [46][any action under the securities laws or directions or circulars issued thereunder], by an order, for reasons to be recorded in writing, in the interests of investors and securities market take the following action against an intermediary:

(a)      issue a warning or censure

(b)      suspend the registration of the intermediary; or

(c)      cancel of the registration of the intermediary

Provided that no final order of suspension or cancellation of an intermediary for violation of these regulations shall be passed unless the procedure specified in the regulations applicable to such intermediary under the Securities and Exchange Board of India [47][(Intermediaries) Regulations, 2008] is complied with.

Regulation - 13. Repeal and savings.

(1)     The Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995 is hereby repealed.

(2)     Notwithstanding repeal of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995, any violation of Regulations 3, 4, 5 and 6 of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 1995 shall be investigated and proceeded against in accordance with the procedure laid down in these regulations.

(3)     Notwithstanding repeal of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995, any investigation pending, at the commencement of these regulations shall be continued and disposed of in accordance with the procedure laid down in these regulations.