Before The Securities Appellate Tribunal Mumbai

BEFORE THE SECURITIES APPELLATE TRIBUNAL
MUMBAI
Order Reserved on: 04.04.2019
Date of Decision : 09.09.2019
Appeal No. 6 of 2018
1. Price Waterhouse & Co. now known as

Price Waterhouse & Co. Bangalore LLP,
a partnership firm registered with the Institute
of Chartered Accountants of India bearing
Registration No. 007567S/S200012
5th Floor, Tower D, The Millennia,
#1 & 2 Murphy Road, Ulsoor,
Bangalore - 560008.
2. Price Waterhouse & Co. now known as

Price Waterhouse & Co. Chartered
Accountants LLP, a partnership firm
registered with the Institute of Chartered
Accountants of India bearing Registration No.
304026E/E300009.
Plot No. Y-14, Block EP, Sector V, Salt
Lake, Electronics Complex, Bidhan Nagar,
Kolkata - 700091.
3. M/s. Lovelock & Lewes, a partnership firm

301056E
Kolkata - 700091.
4. M/s. Lovelock & Lewes now known as

Lovelock & Lewes LLP, a partnership firm
116150W/W100032.
252, Veer Savarkar Marg, Shivaji Park,
Dadar (West), Mumbai - 400 028.
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5. Price Waterhouse, a partnership firm

301112E.
Kolkata - 700091.
6. Price Waterhouse now known as Price

Waterhouse Chartered Accountants LLP, a
partnership firm registered with the Institute
Registration No. 12754N/N500016.
Sucheta Bhawan, 11A Vishnu Digambar
Marg, New Delhi - 110002.
7. Price Waterhouse & Co., a partnership firm

50032S.
8th Floor, Prestige Palladium Bayan,
129-140, Greams Road, Chennai,
Tamil Nadu 600006.
8. Price Waterhouse & Co. now known as Price

Waterhouse & Co. LLP, a partnership firm
016844N/N500015.
Sucheta Bhavan, 1st Floor, 11-A, Vishnu
Digambar Marg, New Delhi - 110002.
9. M/s. Dalal & Shah now known as Dalal &

Shah LLP, a partnership firm registered with
the Institute of Chartered Accountants of
India bearing Registration No.
102020W/W100040.
1701, 17th Floor, Shapath V, Opp. Karnavati
Club, S. G. Highway, Ahmedabad 380051,
Gujarat.
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10. M/s. Dalal & Shah now known as Dalal &

Shah Chartered Accountants LLP, a
partnership firm registered with the Institute …Appellants
Registration No. 102021W/W100110.
252, Veer Savarkar Marg, Shivaji Park,
Dadar (West), Mumbai - 400028.
Versus
Securities and Exchange Board of India

SEBI Bhavan, Plot No. C-4A, G Block,
Bandra Kurla Complex, Bandra (East),
Mumbai - 400 051. …Respondent
Mr. Mukul Rohatgi, Senior Advocate with Mr. Janak Dwarkadas,

Senior Advocate, Mr. Somasekhar Sundaresan, Mr. Zerick Dastur,
Ms. Archana Uppuluri, Mr. Kunal Kothary, Ms. Palak Agrawal,
Mr. Khushil Shah, Ms. Ruby Singh Ahuja and Mr. Anupam Prakash,
Advocates i/b Zerick Dastur Advocates & Solicitors for the
Appellants.
Mr. Ravi Kadam, Senior Advocate with Mr. Kevic Setalvad, Senior
Advocate, Mr. Jayesh Ashar, Mr. Mihir Mody, Ms. Shreya Parikh,
Mr. Sushant Yadav and Mr. Tabish Mooman, Advocates i/b K. Ashar
& Co. for the Respondent.
WITH
Price Waterhouse, Bangalore,
a partnership firm registered with the Institute
Registration No. 007568S.
5th Floor, Tower D, The Millennia,
1 & 2 Murphy Road, Ulsoor,
Bangalore - 560008. …Appellant
Versus

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Mr. Shyam Mehta, Senior Advocate with Mr. Zerick Dastur,

Ms. Archana Uppuluri, Mr. Kunal Kothary, Ms. Palak Agrawal and
Mr. Khushil Shah, Advocates i/b Zerick Dastur Advocates &
Solicitors for the Appellant.
WITH
S. Gopalakrishnan
LH5, 1404, Lanco Hills,
Manikonda, Rajendra Nagar,
Hyderabad - 500 089. …Appellant
Versus

Mr. Gaurav Joshi, Senior Advocate with Mr. R. Sudhinder,

Ms. Prerana Amitabh and Ms. Vatsala Pant, Advocates i/b Argus
Partners for the Appellant.
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AND
Srinivas Talluri
Flat No. 4B, Macherla Apartments,
6-3-1218/6, Umanagar, Begumpet,
Hyderabad - 500 016. …Appellant
Versus

Mr. Mustafa Doctor, Senior Advocate with Mr. R. Sudhinder,

Ms. Prerana Amitabh and Ms. Vatsala Pant, Advocates i/b Argus
Partners for the Appellant.
CORAM : Justice Tarun Agarwala, Presiding Officer

Dr. C. K. G. Nair, Member
Per : Justice Tarun Agarwala, Presiding Officer
1. In this group of appeals, the appellants have questioned the
legality and veracity of the impugned order passed by the Whole
Time Member (hereinafter referred to as, ‘WTM’) of Securities and
Exchange Board of India (hereinafter referred to as, ‘SEBI’) under
Sections 11 and 11B of the Securities and Exchange Board of India
Act, 1992 (hereinafter referred to as, ‘SEBI Act’) which empowers

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SEBI to issue directions in the nature of remedies in the interest of
the securities market and investors in securities.
2. The WTM held that:-
(i) Entities / firms practicing as Chartered Accountant (CA)
in India under the brand and banner of Price Waterhouse
(PW) shall not directly or indirectly issue any certificate
of audit of listed companies, compliance of obligations of
listed companies and intermediaries registered with SEBI
under the applicable laws for a period of two years.
(ii) Individual auditors, namely, S. Gopalakrishanan and
Srinivas Talluri, shall not issue an audit certificate or any
certificate of compliance with respect to a listed company
for a period of three years.
(iii) Gopalakrishanan, Talluri and M/s. Price Waterhouse
Bangalore shall jointly and severally disgorge the
wrongful gains of Rs. 13,09,01,664/- alongwith interest
@ 12% p.a. from January 7, 2009 till the date of payment.
(iv) Listed companies and intermediaries registered with SEBI
shall not engage any audit firm forming part of Price
Waterhouse network for issuing any certificate with
respect to compliance of statutory obligations which SEBI

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is competent to administer and enforce, under various
laws for a period of two years.
3. Even though, separate appeals have been filed against a
common order we have clubbed all these appeals and are being
decided together by a common order.
4. Appeal No. 6 of 2018 has been filed by Price Waterhouse &
Co. alongwith nine other Chartered Accountant (CA) firms under the
banner “Price Waterhouse” (PW). Appeal No. 7 of 2018 has been
filed by Price Waterhouse, Bangalore. Appeal No. 190 of 2018 has
been filed by S. Gopalakrishnan and Appeal No. 191 of 2018 has
been filed by Srinivas Talluri.
5. The facts leading to the filing of the aforesaid appeals are that
PW Bangalore was given the audit for auditing the books of accounts
of Satyam Computers Services Limited (hereinafter referred to as
“SCSL”). The engagement partner for the audit of SCSL for the
period 2000-07 was S. Gopalakrishnan and for the financial year
2007-08 which was extended till September 2008, the engagement
partner was Srinivas Talluri.
6. SCSL was regarded as one of the top IT outsourcing firms in
the world. The Company had won numerous awards and accolades
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including in the areas of its internal audit and corporate governance.
SCSL was admired as one of India’s multinational companies. SCSL
was also listed in the New York Stock Exchange in 2001 after
necessary due diligence carried out by renowned merchant bankers
including Merrill Lynch. It is claimed that SCSL had been clocking a
good growth in line with peer companies and adding a number of top
customers each year. SCSL had eminent board members with
experience and qualifications in diverse fields as Independent
Directors. SCSL was very much in the limelight on account of media
and Analysts and there were no signs of adverse comments or
suspicious remark on its performances or the management came to
light. More also PCAOB conducted an oversight inspection on SCSL
as a US listed Company in 2006-07 and the inspection team did not
find any negative in the performance of SCSL as a whole.
7. In the year 2009, SEBI received an email dated January 7, 2009
from Shri B. Ramalinga Raju, the then Chairman of SCSL stating
that the statements of accounts of SCSL were not true and fair. The
e-mail basically revealed that there was large scale financial
manipulation in the books of accounts of SCSL, namely, that the
balance sheet of SCSL as of September 30, 2008 carried inflated /
non-existent cash and bank balances.

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8. On the basis of this information, SEBI carried out an
investigation into the affairs of SCSL. The investigations revealed
that the statutory auditor of SCSL was Price Waterhouse Chartered
Accountant w.e.f. April 1, 2000. The investigations found that
certain directors and employees of SCSL had connived and
collaborated in the overstatement, fabrication, falsification and
misrepresentation in the books of account and financial statements of
SCSL. The published books of accounts of SCSL contained false and
inflated current account bank balances, fixed deposit balances,
fictitious interest income revenue from sales and debtors’ figures.
The investigation also noted that the statutory auditors of SCSL had
connived with the directors and employees of SCSL in falsifying the
financial statements of SCSL.
9. On the basis of the investigation, a Show Cause Notice (SCN)
dated February 14, 2009 was issued to Price Waterhouse Bangalore,
Price Waterhouse’s Company Bangalore, Price Waterhouse &
Company Kolkata, Lovelock & Lewes Hyderabad, S.
Gopalakrishnan and Srinivas Talluri directing them to show cause as
to why directions under Section 11, 11(4) and 11B of the SEBI Act
should not be issued for violation of Sections 12A(a), 12A(b) and
12A(c) of the SEBI Act read with Regulations 3(c), 3(d), 4(1),
4(2)(a), 4(2)(e), 4(2)(f), 4(2)(k) and 4(2)(r) of the Securities and

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Exchange Board of India (Prohibition of Fraudulent and Unfair
Trade Practices relating to Securities Market) Regulations, 2003
(hereinafter referred to as, “PFUTP Regulations). Subsequently, a
supplementary show cause notice dated February 19, 2010 was
issued to the above persons/entities alongwith Lovelock & Lewis
Mumbai, Price Waterhouse Kolkata, Price Waterhouse New Delhi,
Price Waterhouse & Co. Chennai. Another show cause notice dated
February 19, 2010 was issued to Dalal & Shah Ahmadabad, and
Dalal & Shah Mumbai.
10. The show cause notice is a voluminous document. In a nutshell,
the respondent directed the appellants to show cause for :
(i) successive failure to exercise even a minimum level of
diligence in verifying the accounting systems and internal
controls of SCSL, though accounting manipulations were
going on “quarter after quarter” over the course of eight
years;
(ii) gross negligence and recklessness in conducting an audit
in accordance with the accounting standards and
repeatedly deviating from the mandated course of audit
especially in relation to items of significant materiality;

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(iii) abject failure of the audit function in terms of
professionalism, diligence and requisite application of
mind which had consequently led to dissemination of
spurious and false data in the market albeit certified as
true, which distorted the decision of millions of investors
and induced them to trade in the securities of SCSL;
(iv) these act of omission and commission, singly or jointly, in
the discharge of their duties and “regardless of whether
any criminal intent preceded such omissions or
commissions clearly contained the key ingredients of the
definition of fraud as laid down in SEBI (Prohibition of
Fraudulent and Unfair Trade Practices Relating to
Securities Markets) Regulations, 2003 (‘PFUTP
Regulations, 2003’ for short).
(v) for selectively obtaining direct confirmations in cases of
certain bank accounts of SCSL which had nil or
negligible balances while failing to obtain the same with
respect to the account of Bank of Baroda, New York
(BOB, NY) which showed the largest account balance
(i.e. approximately 75% of all current account balances of
SCSL) going upto Rs. 1731.88 crore in the quarter ending
30th September 2008.

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(vi) failure to consider the direct confirmations received from
banks with respect to the figures of fixed deposits while
blindly relying on the indirect confirmations received
from SCSL which showed higher balances. Failure to
make further examination or enquiry with respect to the
glaring discrepancies between the two sets of
confirmations and / or exercise ordinary prudence or care
in cross checking the relevant figures, thereby permitting
the overstatement by Rs. 3,308.41 crores (Rupees Three
Thousand Three Hundred Eight crores) as on 30th
September 2008 in the financials of SCSL.
(vii) failure to detect the fictitious invoices and inflated
revenues, debtors’ position, etc.
(viii) complicity and/or acquiescence in the fraud and aiding
and/or abetting the same.
11. It was also mentioned in the SCN that PWC International Ltd.
had approved 11 partnership firms consisting of Chartered
Accountants as their partners to use the name “Price Waterhouse” in
India. The auditor’s report, balance sheets, Profit & Loss accounts of
SCSL were signed by S. Gopalakrishnan, Chartered Accountant for
the period from April 2000 to March 2007. S. Gopalakrishnan was a

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partner in Price Waterhouse Bangalore as well as in Lovelock &
Lewes Kolkata. Srinivas Talluri was the Chartered Accountant who
signed the auditor’s report, etc. of SCSL for the period from April
2007 to March 2008. He was a partner in Price Waterhouse
Bangalore and Lovelock & Lewes Kolkata as well as in Price
Waterhouse & Co. Kolkata.
12. It was further alleged in the SCN that the 11 firms have
common branch offices located in New Delhi, Mumbai, Kolkata,
Chennai, Bangalore, Hyderabad, Pune, Gurgaon, Bhuvneshwar &
Ahmedabad and there were several common partners in these firms.
These firms share resources, manpower, offices, revenues, etc.
amongst themselves and, for this purpose, the 11 firms have entered
into an agreement in 2000 for resource sharing. It was further stated
that the members of the “engagement team” which worked on the
audit of SCSL was on the pay roll of Price Waterhouse Kolkata and
Lovelock & Lewes Kolkata.
13. Two Writ Petitions were filed in July 2010 before the Bombay
High Court for the quashing of the SCNs on the ground that SEBI
lacked jurisdiction as it was encroaching upon the jurisdiction of
Institute of Chartered Accountants of India (ICAI). Writ Petition No.
5249 of 2010 was filed by Price Waterhouse Bangalore and Writ
Petition No. 5256 of 2010 was filed by 10 CA firms along with their
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partners who were using the brand name “Price Waterhouse” in
India. By judgment dated August 13, 2010, the Bombay High Court
dismissed the Writ Petition holding that it cannot be said that SEBI at
that stage, had no jurisdiction to issue a SCN simply because the
appellants are professional Chartered Accountants. The Bombay
High Court, however, set out the scope and extent of SEBI’s power
under Section 11 and 11B of SEBI Act read with Regulation 11 of
the PFUTP Regulations to act against Chartered Accountants and the
circumstances under which SEBI could issue direction to Chartered
Accountants acting in their professional capacity. The Bombay High
Court emphatically held that the jurisdiction of SEBI in the present
case would depend upon the evidence which is available during the
investigation and that if there was only some omission without any
mens rea or connivance with anyone, in any manner, then SEBI
could not issue any further direction.
14. The judgment of the Bombay High Court has become final
inter se between the parties, as it was not challenged before a higher
forum. All the parties thus, acquiesced to the observations / findings
/ directions given by the Bombay High Court. Much will depend
upon the scope and extent of SEBI’s power against CAs as provided
by the Bombay High Court and therefore it would be necessary to

15
extract the relevant directions / observations of the Bombay High
Court.
15. The two Writ Petitions were principally directed against the
initiation of proceedings by SEBI against the CA’s under the SEBI
Act. It was contended that SEBI lacked inherent jurisdiction to
enquire into the conduct of the appellants who were professionals. It
was asserted that the appellants are not required to submit to the
jurisdiction of SEBI unless SEBI was vested with such jurisdiction. It
was contended that it was not open to SEBI to encroach upon the
rights and powers of the ICAI provided under the Chartered
Accountants Act, 1949 (hereinafter referred to as ‘CA Act’). It was
submitted that under the provisions of the SEBI Act and the
Regulations framed thereunder, directions can be issued by SEBI for
regulating the securities market, but beyond that, it had no power to
issue any such directions. It was contended that the powers of SEBI
cannot be construed to cover anybody under its umbrella on the
ground of regulating the securities market. The petitioners in Writ
Petition No. 5256 of 2010 submitted that the said petitioners had not
taken part in any manner in the matter of audit of accounts of the
Company and therefore the show cause notice could not be issued
against them. It was asserted that the show cause notice could not be
issued simply because the petitioners were associated with Price

16
Waterhouse & Company. It was contended that if there was any
occasion or request on the part of any Chartered Accountants in the
matter of discharging their professional duties, it is only the ICAI
which had the power to regulate the profession of the Chartered
Accountant (CA) under the CA Act.
16. The contention of SEBI before the High Court was that by
issuing notices to CA’s and to the audit firms, SEBI was not
regulating the profession of CAs but was safeguarding the interest of
the investors as well as the securities market. It was asserted that if
by the acts and misdeeds of the CAs and its firms it was found that
the books of accounts and balance sheets had been manipulated, it
was open to SEBI to take remedial measures by keeping such
persons and entities at a distance. It was asserted that the show cause
notices were issued on the basis of the material available with SEBI
and ultimately if it was found that the books of accounts of the
Company were manipulated with knowledge and intent, then such
manipulation would have a direct bearing on the securities market for
which appropriate action could be taken. It was further asserted that
if during the enquiry any evidence is brought to the effect that the
auditors had connived and were in collusion with B. Ramalinga Raju
and had fabricated the accounts then SEBI could proceed against the
CAs and the audit firms. It was asserted that if the CAs had violated
17
the norms and standards of accounting prescribed by the CA Act,
SEBI had powers to take regulatory measures for protecting the
investor’s interest by taking appropriate steps against the CAs by
preventing the CA from auditing the books of accounts of such listed
Companies. It was thus contended that on the basis of prima facie
evidence of fudging the books of accounts SEBI had the power and
jurisdiction to issue notices and enquire into the matter.
17. The question whether SEBI as a market regulator could be said
to have jurisdiction to pass any of the directions as contained in the
SCN was considered by the Bombay High Court. Despite the fact
that the CA Act conferred exclusive jurisdiction upon the ICAI to
adopt disciplinary misconduct, the Bombay High Court held that in a
given case SEBI can pass orders directing CA to keep away from the
securities market from auditing listed Companies. However, such
directions came with a caveat, namely, that unless and until the
evidence on record established the “jurisdictional fact”, SEBI could
not exercise any jurisdiction under the SEBI Act against a CA.
18. In Arun Kumar and Others vs. Union of India and Others
[(2007) 1 SCC 732] the Supreme Court held:
“A "jurisdictional fact" is a fact which must exist before

a Court, Tribunal or an Authority assumes jurisdiction
over a particular matter. A jurisdictional fact is one on
existence or non-existence of which depends
18
jurisdiction of a court, a tribunal or an authority. It is

the fact upon which an administrative agency's power
to act depends. If the jurisdictional fact does not exist,
the court, authority or officer cannot act. If a Court or
authority wrongly assumes the existence of such fact,
the order can be questioned by a writ of certiorari. The
underlying principle is that by erroneously assuming
existence of such jurisdictional fact, no authority can
confer upon itself jurisdiction which it otherwise does
not possess.”
19. On the question of jurisdiction, the Bombay High Court held
that it was not open to SEBI to encroach upon the powers vested with
the ICAI under the CA Act. The powers available to SEBI under
SEBI Act are to be exercised in the interest of investors and interest
of securities market. Further, in order to safeguard the interest of
investors or interest of securities market, SEBI was entitled to take
all ancillary steps and measures to ensure that the interest of the
investors were protected.
20. The Bombay High Court held that the jurisdiction of SEBI
would depend upon the evidence which is available during such
enquiry and if any material was found against a CA to the effect that
he was instrumental in preparing false and fabricated accounts, then
SEBI had the power to take any remedial measures or preventive
measures in such a case. The Bombay High Court further held that
on conclusion of enquiry, if no evidence was available regarding
fabrication and falsification of accounts etc. then SEBI could not

19
give any direction in any manner. The Bombay High Court further
held that whether any particular firm of CA had any role to play in
any manner and if it was found that there was only some omission
without any means rea or connivance with anyone in any manner,
then on such evidence, SEBI could not give any further directions.
The Bombay High Court was quite specific in holding that the
jurisdictional fact would clearly depend upon the evidence that was
unearthed during the enquiry.
21. The Bombay High Court held:-
“It is true, as argued by the learned counsel for the

petitioners, that while exercising powers under the Act,
it is not open to the SEBI to encroach upon the powers
vested with the Institute under the CA Act. However, it
is required to be examined as to whether in substance
by initiating the proceedings under the SEBI Act, the
SEBI is trying to overreach or encroach upon the
powers conferred under the CA Act.
and further held:-
“In order to safeguard the interest of investors or

interest of securities market, SEBI is entitled to take all
ancillary steps and measures to see that the interest of
the investors is protected. Looking to the provisions of
the SEBI Act and the Regulations framed thereunder, in
our view, it cannot be said that in a given case if there
is material against any Chartered Accountant to the
effect that he was instrumental in preparing false and
fabricated accounts, the SEBI has absolutely no power
to take any remedial or preventive measures in such a
case. It cannot be said that the SEBI cannot give
appropriate directions in safeguarding the interest of
the investors of a listed Company. Whether such
directions and orders are required to be issued or not is
20
a matter of inquiry. In our view, the jurisdiction of SEBI

would also depend upon the evidence which is available
during such inquiry. It is true, as argued by the learned
counsel for the petitioners, that the SEBI cannot
regulate the profession of Chartered Accountants. This
proposition cannot be disputed in any manner. It is
required to be noted that by taking remedial and
preventive measures in the interest of investors and for
regulating the securities market, if any steps are taken
by the SEBI, it can never be said that it is regulating the
profession of the Chartered Accountants. So far as
listed Companies are concerned, the SEBI has all the
powers under the Act and the Regulations to take all
remedial and protective measures to safeguard the
interest of investors and securities market.”
and further held:-
“Normally, an investor invests his money by

considering the financial health of the Company and in
order to find out the same, one will naturally would
bank upon the accounts and balance-sheets of the
Company. If it is unearthed during inquiry before SEBI
that a particular Chartered Accountant in connivance
and in collusion with the Officers/Directors of the
Company has concocted false accounts, in our view,
there is no reason as to why to protect the interests of
investors and regulate the securities market, such a
person cannot be prevented from dealing with the
auditing of such a public listed Company. In our view,
the SEBI has got inherent powers to take all ancillary
steps to safeguard the interest of investors and
securities market. The powers conferred under various
provisions of the Act are wide enough to cover such an
eventuality and it cannot be given any restrictive
meaning as suggested by the learned counsel for the
petitioners. It is the statutory duty of the SEBI to see
that the interests of the investors are protected and
remedial and preventive measures are required to be
taken in this behalf.”
22. The Bombay High Court held that the role of auditors is very
important under the Companies Act and owe a duty to the

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shareholders and are required to give a correct picture of the financial
affairs of the Company. The Bombay High Court observed:-
“An investor is likely to be guided by the audited

balance-sheet of the Company and would presume that
the facts incorporated in the balance-sheet are true and
correct. Considering the said aspect, even though the
petitioners may not have direct association in the share
market activities, yet the statutory duty regarding
auditing the accounts of the Company and preparation
of balance-sheets may have a direct bearing in
connection with the interest of the investors and the
stability of the securities market. In our view, the
petitioners in their capacity as auditors of the Company
Satyam, which was at one point of time considered to
be a blue chip company who had a defining influence
on the securities market, can be said to be persons
associated with the securities market within the
meaning of the provisions of the said Act.”
23. On the question whether SEBI can regulate the profession of a
CA, the Bombay High Court held:-
“As regards the contention of Mr. Dwarkadas that

except the Institute, no other body has any power to
regulate the profession, it is required to be noted that
SEBI's powers are restricted only in connection with
taking care of the interest of the investors and
safeguarding the interest of the investors and also to
regulate the share market. SEBI has, therefore, all the
powers to give appropriate directions in the aforesaid
field. By initiating the proceedings, it cannot be said
that the SEBI is encroaching upon the rights of the
Institute or prohibiting a Chartered Accountant from
practicing as a Chartered Accountant. It is natural that
SEBI has no power to pass an order prohibiting a
particular Chartered Accountant from practicing as a
Chartered Accountant or cannot debar a Chartered
Accountant from practicing as Chartered Accountant
but SEBI can definitely take regulatory measures under
22
the SEBI Act in the matter of safeguarding the interest

of the investors and securities market and in order to
achieve the same, it can take appropriate remedial
steps which may include keeping a person including a
Chartered Accountant at a safe distance from the
securities market. SEBI can always take preventive as
well as remedial measures in this behalf. Exercising
such powers, therefore, cannot be said to be in any way
in conflict with the powers of the Institute under the CA
Act. If ultimately any decision is taken by debarring any
particular person from auditing the books of a listed
company, such direction can always be said to be
within the powers of SEBI and that is in the aid of
regulating the affairs in connection with the investors
interests and the interest of the securities market. By
exercising such powers, it cannot be said that the SEBI
is trying to regulate the profession of Chartered
Accountants in any manner and in that view of the
matter, in our view, it can never be said that it is in
conflict with Section 24 of the CA Act.”
The Bombay High Court further held:-
“it is not advisable and safe to have any particular

person to be an Auditor of a listed Company, if he is
found that he has committed any misdeeds or fraud qua
the interest of investors or the securities market, it can
always regulate its affairs by preventing such person
from carrying on such work for a particular period”
24. The Bombay High Court held that it is open to SEBI to take
into consideration the accounting standards prescribed under the CA
Act to see if the CA has violated any audit norms then whether such
CA should be allowed to function as an auditor of a listed Company
if by construing such auditor of a listed Company it may hamper the
interest of the investors of such a listed Company. The Bombay High
Court however held that it is only the ICAI which is the regulating
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body to consider the professional norms, but in a given case if there
is evidence to show that a CA has fabricated the books of accounts
etc., then SEBI can issue directions not to utilize the services of such
a CA in the matter of audit of a listed Company. The Bombay High
Court further went on to hold:-
“However, on conclusion of inquiry, if no evidence is

available regarding fabrication and falsification of
accounts, etc., then naturally SEBI cannot give any
direction in any manner and ultimately its jurisdiction
will depend upon the evidence which may be available
in the inquiry and SEBI has to decide as to whether any
directions can be given on the basis of available
evidence on record.”
25. The Bombay High Court after considering the scheme
of the SEBI Act held that in the instant case, on the basis of a
show cause notice, SEBI had the jurisdiction to enquire and
investigate the matter in connection with manipulation and
fabricating the books of accounts and balance sheet of the
Company. The Bombay High Court further held that the
power of SEBI are independent and does not encroach upon
the powers of the ICAI under the CA Act. The Court further
held that whether any of the CA and the CA firms had, with
intention and knowledge, tried to fabricate and fudge the
books of accounts was a matter of investigation and enquiry
by SEBI and, if ultimately if any evidence came on record to

24
this effect, in that event, SEBI could take appropriate steps.
The Bombay High Court thus held:-
“Whether any of the petitioners with an intention and

knowledge tried to fabricate and fudge the books of
accounts is a matter of investigation and inquiry by the
SEBI. Ultimately if any evidence in this behalf is
brought on record before the SEBI during the inquiry,
appropriate steps can be taken in this behalf as
provided for by the SEBI Act.”
26. Insofar as the petitioner’s of Writ Petition No. 5256 of 2010
were concerned, the Bombay High Court held that SEBI would
adjudicate whether a petitioner firm of CA had any role to play and if
in a given case, ultimately it was found that there was only omission
without any mens rea or connivance with anyone, then on such
evidence, SEBI could not issue any further directions. The Bombay
High Court, in this regard, held:-
“SEBI being a quasi-judicial authority, while

adjudicating the matter, will look into this aspect and
will consider as to whether any particular firm of
Chartered Accountants has any role to play or for that
reason any of the petitioners had played any role in any
manner they may bring the matter to the notice of the
SEBI. In a given case, if ultimately it is found that there
was only some omission without any mens rea or
connivance with anyone in any manner, naturally on
the basis of such evidence the SEBI cannot give any
further directions.”
27. The findings of the Bombay High Court setting out the scope
and extent of SEBI’s power to act against CAs and the circumstances
25
under which SEBI could issue directions to CA acting in their
professional capacity can thus be culled out as under:-
(i) On the basis of the allegation in the show cause notice,
SEBI can investigate and enquire into the conduct of the
CA and the CA firms in order to find out whether the
books of accounts and balance sheet have been
manipulated and/or fabricated.
(ii) The manipulation of the books of accounts and balance
sheet by the CA and the CA firms was done with their
knowledge and intent.
(iii) If during investigation and enquiry, if any evidence is
brought on record to show that the auditors had connived
and were in collusion with B. Ramalinga Raju and had
fabricated the books of accounts of balance sheet, then
SEBI can proceed in the matter and take appropriate steps
against CA by preventing the CA from auditing the books
of accounts of such listed Companies.
(iv) SEBI can take into consideration the accounting standards
provided under the CA Act to see whether a CA has
violated any norms but upon conclusion of enquiry, if no
evidence is available regarding fabrication, fabrication or

26
fudging the books of accounts etc. then SEBI cannot issue
any direction.
(v) SEBI would adjudicate whether other Price Waterhouse
firms had any role to play and if it is found that there was
some omission on their part without any mens rea or
connivance with anyone, then on such evidence SEBI
cannot issue any further direction.
28. We have heard Mr. Mukul Rohatgi, Senior Advocate along
with Mr. Janak Dwarkadas, Senior Advocate and assisted by
Mr. Somasekhar Sundaresan, Mr. Zerick Dastur, Ms. Archana
Uppuluri, Mr. Kunal Kothary, Ms. Palak Agrawal, Mr. Khushil Shah,
Ms. Ruby Singh Ahuja and Mr. Anupam Prakash, Advocates for the
appellants in Appeal No. 6 of 2018; Mr. Shyam Mehta, Senior
Advocate along with Mr. Zerick Dastur, Ms. Archana Uppuluri,
Mr. Kunal Kothary, Ms. Palak Agrawal and Mr. Khushil Shah,
Advocates for the appellant in Appeal No. 7 of 2018; Mr. Gaurav
Joshi, Senior Advocate along with Mr. R. Sudhinder, Ms. Prerana
Amitabh and Ms. Vatsala Pant, Advocates for the appellant in
Appeal No. 190 of 2018; Mr. Mustafa Doctor, Senior Advocate
along with Mr. R. Sudhinder, Ms. Prerana Amitabh and Ms. Vatsala
Pant, Advocates for the appellant in Appeal No. 191 of 2018 and
27
Mr. Ravi Kadam, Senior Advocate along with Mr. Kevic Setalvad,
Senior Advocate, Mr. Jayesh Ashar, Mr. Mihir Mody, Ms. Shreya
Parikh, Mr. Sushant Yadav and Mr. Tabish Mooman, Advocates for
the respondent in all the appeals.
29. As per the directions of the Bombay High Court, the scope of
enquiry was restricted only to the charge of conspiracy and
involvement in the fraud and not to any charge of professional
negligence. The charge of conspiracy and involvement in the fraud
was required to be established on the basis of material available on
the basis of investigation. The Bombay High Court had narrowed the
scope of enquiry under the SEBI Act as it was aware that the
appellants are Chartered Accountant / Chartered Accountant firms
and were not dealing directly in the securities. The Bombay High
Court, thus, held that there must be evidence to show that the
engagement partners / audit firms had indulged in or were
instrumental in the fabrication of the books of account of SCSL and
that there was an intention or knowledge in connivance or collusion
with the management of the SCSL in fudging the books of account.
The Bombay High Court further held that if there was some omission
but without any mens rea then no further direction would be issued
otherwise it would encroach upon the jurisdiction of ICAI. Thus, the

28
scope of enquiry was limited to the conspiracy and involvement in
the fraud and not on professional negligence.
30. In this regard the term / words used consistently by the Bombay
High Court in its judgment becomes important and provides an
insight to the scope of enquiry. The Bombay High Court in its
judgment has consistently used the words “false”, “fabricated”,
“fabrication”, “falsification”, “concocted” and “fudge” in relation to
the books of account of SCSL. The Bombay High Court has also
used the words “indulged”, “instrumental”, “intention”,
“knowledge”, “connived”, “collusion”, “manipulation”, “fraud” and
“mens rea” in the fabrication or falsification of the books of account.
These words speak volumes of the intent, scope and extent of the
enquiry to be conducted under the SEBI laws.
31. Black’s Law Dictionary 8th Edition, defines “false” as untrue,
deceitful, lying, not genuine. What is false can be so by intent. The
term “fabricate” means to invent, forge or devise falsely. To fabricate
a story is to create a plausible version of events that is advantageous
to the person relating those events. The term is softer than a lie
(Black’s Law Dictionary 7th Edition). “Falsification” means to
counterfeit or forge; to make something false; to give a false
appearance to anything. To make false by mutilation, alteration, or

29
addition; to tamper with, as to falsify a record or document (Black’s
Law Dictionary 7th Edition). The word “falsify” may be used to
convey two distinct meanings- either that of being intentionally or
knowingly untrue, made with intent to defraud or mistakenly and
accidentally untrue (Black’s Law Dictionary 8th Edition). Chambers
Dictionary 2004 Edition defines “concoct” as to fabricate, to plan,
devise, to make up or put together, to prepare. The same dictionary
defines “fudge” as the act of distortion, to cheat, to dodge, to cover
up and “indulge” as to yield to the wishes of, to favour, to gratify, to
gratify one’s appetite freely. “Instrumental” has been defined as
acting as an instrument or means, serving to promote an object.
“Intended” means planned, with design. Black’s Law Dictionary 8th
Edition defines “knowledge” as an awareness or understanding of a
fact or circumstance. Black’s Law Dictionary 6th Edition defines
“collusion” as an agreement between two or more persons to defraud
a person of his rights by the forms of law, or to obtain an object
forbidden by law. It implies the existence of fraud of some kind, the
employment of fraudulent means, or of lawful means for the
accomplishment of an unlawful purpose. “Connivance” means the
secret or indirect consent or permission of one person to the
commission of an unlawful or criminal act by another (Black’s Law
Dictionary 6th Edition). Black’s Law Dictionary 8th Edition defines
“connivance” to mean the act of indulging or ignoring another’s

30
wrongdoing. Advanced Law Lexicon 5th Edition defines
“connivance” as voluntary blindness to some present act or conduct.
“Fraudulent” means based of fraud; proceeding from or characterized
by fraud, tainted by fraud; done, made, or effected; tainted by fraud;
done, made or effected with a purpose or design to carry out a fraud.
A statement, or claim, or a document, is “fraudulent” if it was falsely
made, or cause to be made with the intent to deceive. To act with
“intent to fraud” means to act willfully, and with the specific intent to
deceive or cheat; ordinarily for the purpose of either causing some
financial loss to another, or bringing about some financial gain to
oneself (Black’s Law Dictionary 7th Edition). “Fraud” means a
knowing misrepresentation of the truth or concealment of a material
fact to induce another to act to his or her detriment (Black’s Law
Dictionary, 7th edition). “Misrepresentation” means any
manifestation by words or other conduct by one person to another
that, under the circumstances, amounts to assertion not in accordance
with the facts; an untrue statement of fact; an incorrect or false
representation that which, if accepted, leads the mind to an
apprehension of a condition other and different from that which
exists. Colloquially, it is understood to mean a statement made to
deceive or mislead (Black’s Law Dictionary, 6th edition).
“Negligence” means the omission to do something which a
reasonable man, guided by those ordinary consideratiosns which

31
ordinarily regulate human affairs, would do, or the doing of
something which a reasonable and prudent man would not do.
Negligence is the failure to use such care as a reasonably prudent and
careful person would use under similar circumstances; it is the doing
of some act which a person of ordinary prudence would not have
done under similar circumstances or failure to do of a person of
ordinary prudence would have done under similar circumstances
(Black’s Law Dictionary, 6th edition). “Omission” means the neglect
to perform what the law requires. The intentional or unintentional
failure to act which may or may not impose criminal liability
depending upon the existence, vel non, of a duty to act under the
circumstances (Black’s Law Dictionary, 6th edition). In Chambers
Law Dictionary the word “manipulate” means to work with the
hands, to turn to one’s own purpose or advantage and “manipulation”
means the act of manipulating by hands.
32. From the aforesaid, it becomes apparently clear that what the
Bombay High Court meant was that there must be evidence to show
that there was fabrication, falsification and fudging of the books of
account of SCSL by the appellants and that the said fabrication, etc.
was done with intent, knowledge, connivance and collusion with the
management in order to play a fraud on the shareholders / investors.
The evidence must be apparent and glaring and not on the basis of
32
preponderance of probabilities. There must be direct evidence of
falsification and fabrication of the books of account of SCSL.
33. This leads us to go into the question as to how WTM has
arrived at a finding that the appellants were guilty of misconduct and
were responsible for the fabrication of the books of account of SCSL.
The findings are as follows:-
(i) the balance in the current account of SCSL with Bank of
Baroda, New York Branch was overstated by Rs. 1731.88
crore as on 30.09.2008. The confirmation did not match
with balances as per bank reconciliation statement.
(ii) the auditors relied on the bank confirmation purportedly
received from Bank of Baroda, New York through SCSL
for confirmation of the balances in the current account
with Bank of Baroda New York.
(iii) the firm failed to seek direct confirmation of bank balance
from Bank of Baroda, New York and only sought balance
confirmation from other banks having nil or negligible
balance.
(iv) fixed deposit account of SCSL held in 5 banks were
overstated by Rs. 3308.41 crore as on September 30,

33
2008. These fixed deposits were fabricated documents
which the auditors failed to detect. The letters of
confirmation addressed to the auditors were received from
the Company by the auditors and which were relied upon
were also fabricated.
(v) internal audit did not conduct verification of bank
balances and therefore it was left to the statutory auditors
to conduct such verification which they failed to do so
and they relied upon the balance confirmation letters
received through SCSL which were found to be
fabricated.
(vi) the manner in carrying out the verification of the bank
balance and fixed deposits was not in accordance with
Auditing and Assurance Standards (AAS) issued by ICAI
which was a mandatory requirement.
(a) as per AAS 13, the auditors had a duty to obtain
direct bank confirmation as a preliminary validation
procedure which the appellants failed to do so.
(b) as per AAS 30, the responsibility of sending the
letters seeking external confirmation was upon the

34
auditor which the firm failed to adhere to the said
audit process.
(c) as per AAS 30, the auditors were mandated to
verify the source of contents of confirmation letters
by additional audit procedures viz. telephonic calls,
email, etc. which the appellants failed to do so.
(vii) having failed to comply with the audit procedures as
mandated under AAS, the appellants failed to fulfill these
basic professional duties of an auditor.
(viii) the auditors have relied upon the monthly bank statement
of Bank of Baroda which turned out to be forged and
manipulated.
(ix) bank statement was obtained from SCSL instead of
obtaining it directly from the bank.
(x) by not seeking external confirmation of the current
account balance of SCSL with Bank of Baroda, New
York, the auditors had failed to exercise care and
prudence and adhere to the standards and procedures
prescribed under AAS 30.

35
(xi) complete reliance on the bank statements provided by
SCSL without taking recourse to external confirmation on
the ground that SCSL enjoyed a good reputation for
corporate governance does not behove an auditor with an
attitude of professional skepticism as mandated under
para 18 of AAS 4.
(xii) even though the fake invoices were not distinguishable
with the genuine invoices to a naked eye, it was the duty
of the auditor to transcends beyond what is visible to the
naked eye by requiring the auditors to apply an attitude of
professional skepticism.
(xiii) the auditors during the audit process had acted in total
disregard to the auditing standards under the AAS
mandate pertaining to materiality of information (bank
balances and FDs), reliability of audit evidence, external
confirmation and having an attitude of professional
skepticism.
(xiv) the auditors failed to detect the fabrication of the
Invoicing Management System (IMS) of SCSL which
were exported manually from the IMS into the Oracle
Financials which was the accounting software used by

36
SCSL which resulted in the inflation of the revenues of
SCSL. This failure to detect the fake invoices occurred as
auditors failed to carry out any reconciliation between
invoices in Oracle Financials (OF) and IMS. Failure to
detect the fake invoices indicated the quality of audit and
thus did not conduct the audit with bonafide intentions.
(xv) the ‘alternate procedure’ as per para 39 of the AAS 30
adopted by the auditors was prone to potential fraud risk
and, in any case, did not relieve the auditor from this
obligation of conducting a satisfactory confirmation of
debtors.
(xvi) passive acceptance at face value of information provided
by SCSL does not benefit the stature of audit and amounts
to gross negligence.
(xvii)the carefully laid out scheme of fraud and fabrication of
accounts in SCSL by the top management of SCSL was
not possible without the knowledge and involvement of
the statutory auditors.
(xviii) there were gaping holes in the auditing process since they
did not follow scrupulously the AAS and Guidance Note,
which points the needle of suspicion from negligence to

37
one of acquiescence and complicity on the part of the
auditors which in turns draws an inference of malafide
and involvement on their part.
(xix) the accumulated omission on the part of the auditors over
eight years is an act of gross negligence and amount to an
act of commission of fraud for the purposes of SEBI Act
and SEBI PFUTUP Regulations.
(xx) mens rea in the criminal sense is not relevant and is not
required to be established in a violation alleged under
PFUTP Regulations read with the SEBI Act in view of
the Supreme Court decision in the case of Securities and
Exchange Board of India vs. Shri Kanaiyalal
Baldevbhai Patel & Others, (2017) 15 SCC 1. Thus
reliance on the judgment of the Bombay High Court by
the appellants was unnecessary and misplaced.
34. In a nutshell, the WTM held that failure to seek external
confirmation of the bank balances, fixed deposits, failure to detect
fake invoices without adopting the rigorous procedure mandated by
AAS draws an inference of gross negligence and inference of
involvement in the fudging of the accounts. This gross negligence
amounts to an act of commission of a fraud for the purposes of SEBI

38
Act and SEBI PFUTP Regulations for which mens rea is not
required to be proved beyond a reasonable doubt but could be based
on a preponderance of probability.
35. Reliance has been made on a decision of the Supreme Court in
Securities and Exchange Board of India vs. Shri Kanaiyalal
Baldevbhai Patel, (2017) 15 SCC 1 wherein the Supreme Court held
that mens rea is not indispensable in PFUTP violations. The Supreme
Court held:-
“To attract the rigor of Regulations 3 and 4 of the 2003

Regulations, mens rea is not an indispensable
requirement and the correct test is one of
preponderance of probabilities. Merely because the
operation of the aforesaid two provisions of the 2003
Regulations invite penal consequences on the
defaulters, proof beyond reasonable doubt as held by
this Court in Securities and Exchange Board of India v.
Kishore R. Ajmera (supra) is not an indispensable
requirement. The inferential conclusion from the
proved and admitted facts, so long the same are
reasonable and can be legitimately arrived at on a
consideration of the totality of the materials, would be
permissible and legally justified. ….” .
36. Before we deal with the findings given by the WTM and the
submission made by the parties it would be appropriate to extract the
provisions of Section 12A of the SEBI Act as well as Regulation
2(1)(b), 2(1) (c), 3 & 4 of the PFUTP Regulations which reads as
follows:-
39
SEBI Act
Prohibition of manipulative and deceptive devices,
insider trading and substantial acquisition of
securities or control.
12A. No person shall directly or indirectly—

(a) use or employ, in connection with the issue,
purchase or sale of any securities listed or proposed to
be listed on a recognized stock exchange, any
manipulative or deceptive device or contrivance in
contravention of the provisions of this Act or the rules
or the regulations made thereunder;
(b) employ any device, scheme or artifice to defraud in
connection with issue or dealing in securities which are
listed or proposed to be listed on a recognised stock
exchange;
(c) engage in any act, practice, course of business

which operates or would operate as fraud or deceit
upon any person, in connection with the issue, dealing
in securities which are listed or proposed to be listed on
a recognised stock exchange, in contravention of the
provisions of this Act or the rules or the regulations
made thereunder;
(d) engage in insider trading;
(e) deal in securities while in possession of material or

non-public information or communicate such material
or non-public information to any other person, in a
manner which is in contravention of the provisions of
this Act or the rules or the regulations made
thereunder;
(f) acquire control of any company or securities more

than the percentage of equity share capital of a
company whose securities are listed or proposed to be
listed on a recognised stock exchange in contravention
of the regulations made under this Act.”
40
“PFUTP Regulations
“Definitions
2.(1) In these regulations, unless the context otherwise

requires,-
……………..
(b) "dealing in securities" includes 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
person as principal, agent or intermediary referred
to in section 12 of the Act.
(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;
41
(7) deceptive behavior 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;
(d) any other matter of a like nature;
whether such comments are made in public or in

private;
Prohibition of certain dealings in securities
3. No person shall directly or indirectly—
(a) ………
(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
42
of the provisions of the Act or the rules and the

regulations made there under.
4. Prohibition of manipulative, fraudulent and

unfair trade practices
(1) Without prejudice to the provisions of

regulation 3, no person shall indulge in a
fraudulent or an unfair trade practice in
securities.
(2) Dealing in securities shall be deemed to be a

fraudulent or an unfair trade practice if it
involves fraud and may include all or any of
the following, namely:-
(a) indulging in an act which creates

false or misleading appearance of
trading in the securities market;
…………..
(e) any act or omission amounting to

manipulation of the price of a security;
(f) publishing or causing to publish or

reporting or causing to report by a
person dealing in securities any
information which is not true or which
he does not believe to be true prior to or
in the course of dealing in securities;”
…………
(k) an advertisement that is misleading or

that contains information in a distorted
manner and which may influence the
decision of the investors;
…………….
(r) planting false or misleading news which

may induce sale or purchase of
securities.”
43
37. In Securities and Exchange Board of India vs. Pan Asia
Advisors Limited and Another, (2015) 14 SCC 71 the Supreme
Court has set out the scope of Section 12A of the SEBI Act. The
Supreme Court held:-
“78. Section 12-A of the SEBI Act, 1992 creates a clear

prohibition of manipulating and deceptive devices,
insider trading and acquisition of securities. Sections
12-A(a), (b) and (c) are relevant, wherein, it is
stipulated that no person should directly or indirectly
indulge in such manipulative and deceptive devices
either directly or indirectly in connection with the issue,
purchase or sale of any securities, listed or proposed to
be listed wherein manipulative or deceptive device or
contravention of the Act, Rules or Regulations are
made or employ any device or scheme or artifice to
defraud in connection with any issue or dealing in
securities or engage in any act, practice or course of
business which would operate as fraud or deceit on any
person in connection with any issue dealing with
security which are prohibited. By virtue of such clear
cut prohibition set out in Section 12-A of the Act, in
exercise of powers under Section 11 referred to above,
as well as Section 11-B of the SEBI Act, it must be
stated that the Board is fully empowered to pass
appropriate orders to protect the interest of investors in
securities and securities market and such orders can be
passed by means of interim measure or final order as
against all those specified in the abovereferred to
provisions, as well as against any person. The purport
of the statutory provision is protection of interests of
the investors in the securities and the securities market.
79. Along with Section 12-A, when we read

Regulation 2(1)(c) of the 2003 Regulations, the act of
fraud has been elaborately defined to include any kind
of activity which would work against the interest of the
investors in securities. Further, such interest of the
investors can be better ascertained by making reference
to Section 2(h)(iii) of the SCR Act, 1956 which defines
44
“security” to mean the right or interest in securities. A

conspectus reference to Sections 12-A(a), (b) and (c)
read along with Regulations 2(1)(b) and (c), as well as
Section 2(h)(iii) of the SCR Act, 1956 sufficiently
disclose that it would cover any act which will have
relevance in protecting the interest of the investors in
securities and security market with any person however
remotely the same are connected with such securities,
in the event of such an act working against the interest
of investors in securities and securities market by way
of fraud which has been elaborately defined under
Regulation 2(i)(c) of the 2003 Regulations.
90. Under Section 12-A, it is specifically provided to

prohibit any manipulative and deceptive devices,
insider trading and substantial acquisition of securities
or control by ANY PERSON either directly or indirectly. If
SEBI's allegation listed out earlier as well as all the
other allegations fall under Sections 12-A(a), (b) and
(c), there will be no escape for the respondents from
satisfactorily explaining before the Tribunal as to how
these allegations would not result in fully establishing
the guilt as prescribed under sub-clauses (a), (b) and
(c) of Section 12-A. Similar will be the situation for
answering the definition under Regulations 2(1)(b), (c),
3, 4(1), (2)(a), (b), (c), (d), (e), (f), (k) and (r) of the
2003 Regulations, apart from taking required penal
action against those who are involved in any fraud
being played in the creation of securities.”
38. In N. Narayanan vs Securities and Exchange Board of India,
(2013) 12 SCC 152 the Supreme Court held:-
“33. Prevention of market abuse and preservation of

market integrity is the hallmark of securities law.
Section 12-A read with Regulations 3 and 4 of the 2003
Regulations essentially intended to preserve “market
integrity” and to prevent “market abuse”. The object of
the SEBI Act is to protect the interest of investors in
securities and to promote the development and to
regulate the securities market, so as to promote orderly,
healthy growth of securities market and to promote
investors' protection. Securities market is based on free
45
and open access to information, the integrity of the

market is predicated on the quality and the manner on
which it is made available to market. “Market abuse”
impairs economic growth and erodes investor's
confidence. Market abuse refers to the use of
manipulative and deceptive devices, giving out
incorrect or misleading information, so as to encourage
investors to jump into conclusions, on wrong premises,
which is known to be wrong to the abusers. The
statutory provisions mentioned earlier deal with the
situations where a person, who deals in securities, takes
advantage of the impact of an action, may be
manipulative, on the anticipated impact on the market
resulting in the “creation of artificiality”.”
39. Thus, Section 12A of the SEBI Act creates a clear prohibition
of manipulative and deceptive devices, insider trading and
acquisition of securities. Section 12A(a),(b) & (c) stipulates that no
person should directly or indirectly indulge in such manipulative and
deceptive devices in connection with the issue, purchase and sale of
any securities or use any device or engage in any act which would
operate as fraud or deceit on any person while dealing in securities.
The emphasis is on the word(s) “securities” and “dealing in
securities”. The manipulative and deceptive devices which would
operate as a fraud or deceit is directly linked to “securities” and
“dealing in securities”. If a person is not dealing in securities either
directly or indirectly then Section 12A would not be applicable. In
this regard “securities” have been defined under Section 2(h) of the
Securities Contracts (Regulation) Act, 1956 (‘SCRA Act’ for short)
which is extracted hereunder:-

46
“(h) “securities” include—
(i) shares, scrips, stocks, bonds, debentures,

debenture stock or other marketable
securities of a like nature in or of any
incorporated company or other body
corporate;
(ia) derivative;
(ib) units or any other instrument issued by any

collective investment scheme to the investors
in such schemes;
(ic) security receipt as defined in clause (zg) of

section 2 of the Securitisation and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002;
(id) units or any other such instrument issued to

the investors under any mutual fund scheme;
(ii) Government securities;
(iia) such other instruments as may be declared

by the Central Government to be securities;
and
(iii) rights or interest in securities;”
40. “Dealing in securities” have been defined under Regulation
2(1)(b) of PFUTP Regulations, 2003 which has already been
extracted above, includes an act of buying and selling of any security
or otherwise transacting in any way in any security. The term
security has been defined under Section 2(h) of the SCR Act to
include shares, scrips, stocks, bonds, etc. Thus, Section 12A becomes
47
applicable only when a person deals in securities either directly or
indirectly and indulges in manipulative and deceptive devices, etc.
41. The scope of PFUTP Regulations, 2003 has been set out by the
Supreme Court in Kanaiyalal’s case (supra). The Supreme Court
held:-
“10. The 2003 FUTP has three chapters, namely,

“Preliminary”, “Prohibition of fraudulent and unfair
trade practices relating to securities market” and
“Investigation”. Regulation 1 contains the short title
and commencement. Regulation 2 consists of certain
definitions. Clause (b) of Regulation 2 defines “dealing
in securities” which includes 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 person as principal, agent or
intermediary referred to in Section 12 of the SEBI Act.
Clause (c) of Regulation 2 defines “fraud”.
11. Regulation 3 prohibits certain dealings in

securities, whereas Regulation 4 prohibits
manipulative, fraudulent and unfair practices.
Regulation 5 deals with the power of the board to order
investigation. Regulation 6 elaborates on the power of
the investigating authority.
14.2. Clauses (i), (j), (l), (m), (p), (o) and (q) of sub-
regulation (2) of Regulation 4 expressly make
themselves applicable only to the case of intermediaries
and not to individual buyers or sellers.
23. The object and purpose of the 2003 FUTP is to

curb “market manipulations”. Market manipulation is
normally regarded as an “unwarranted” interference
in the operation of ordinary market forces of supply
and demand and thus undermines the “integrity” and
efficiency of the market.
48
29. On a comparative analysis of the definition of

“fraud” as existing in the 1995 Regulations and the
subsequent amendments in the 2003 Regulations, it can
be seen that the original definition of “fraud” under the
FUTP Regulations, 1995 adopts the definition of
“fraud” from the Contract Act, 1872 whereas the
subsequent definition in the 2003 Regulations is a
variation of the same and does not adopt the strict
definition of “fraud” as present under the Contract Act.
It includes many situations which may not be a “fraud”
under the Contract Act or the 1995 Regulations, but
nevertheless amounts to a “fraud” under the 2003
Regulations.
30. The definition of “fraud” under clause (c) of

Regulation 2 has two parts; first part may be termed as
catch all provision while the second part includes
specific instances which are also included as part and
parcel of term “fraud”. The ingredients of the first part
of the definition are:
1. includes an act, expression, omission or
concealment whether in a deceitful manner or not;
2. by a person or by any other person with his
connivance or his agent while dealing in securities;
3. so that the same induces another person or his
agent to deal in securities;
4. whether or not there is any wrongful gain or
avoidance of any loss.
The second part of the definition includes specific

instances:
(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;
49
(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.
33. Regulation 3 prohibits a person from committing

fraud while dealing in securities. A reading of the
aforesaid provision describes the width of the power
vested with SEBI to regulate the security market. In our
view, the words employed in the aforesaid provisions
are of wide amplitude and would therefore take within
its sweep the inducement to bring about inequitable
result which has happened in this instant case.
34. Regulation 4 prohibits manipulative, fraudulent

and unfair trade practices. It is to be noted that
Regulation 4(1) starts with the phrase “without
prejudice to the provisions of Regulation 3”. This
phrase acquires significance as it portrays that the
prohibitions covered under Regulation 3 do not bar the
prosecution under Regulation 4(1). Therefore
Regulation 4(1) has to be read to have its own ambit
which adds to what is contained under Regulation 3.
39. It should be noted that the provisions of

Regulations 3(a), (b), (c), (d) and 4(1) are couched in
general terms to cover diverse situations and
possibilities. Once a conclusion, that fraud has been
committed while dealing in securities, is arrived at, all
these provisions get attracted in a situation like the one
under consideration. We are not inclined to agree with
the submission that SEBI should have identified as to
which particular provision of the 2003 FUTP
Regulations has been violated. A pigeon-hole approach
may not be applicable in this case instant.
50
47. Accordingly, non-intermediary front-running may

be brought under the prohibition prescribed under
Regulations 3 and 4(1), for being fraudulent or unfair
trade practice, provided that the ingredients under
those heads are satisfied as discussed above. From the
above analysis, it is clear that in order to establish
charges against tippee, under Regulations 3(a), (b), (c)
and (d) and 4(1) of the 2003 FUTP, one needs to prove
that a person who had provided the tip was under a
duty to keep the non-public information under
confidence, further such breach of duty was known to
the tippee and he still trades thereby defrauding the
person, whose orders were front-runned, by inducing
him to deal at the price he did.
54. The definition of “fraud”, which is an inclusive

definition and, therefore, has to be understood to be
broad and expansive, contemplates even an action or
omission, as may be committed, even without any deceit
if such act or omission has the effect of inducing
another person to deal in securities. Certainly, the
definition expands beyond what can be normally
understood to be a “fraudulent act” or a conduct
amounting to “fraud”. The emphasis is on the act of
inducement and the scrutiny must, therefore, be on the
meaning that must be attributed to the word “induce”.
55. The dictionary meaning of the word “induced”

may now be taken note of:
Black's Law Dictionary, 8th Edn., defines

“inducement” as “The act or process of enticing
or persuading another person to take a certain
course of action”.
* * *
Merriam-Webster Dictionary defines
“inducement” as “a motive or consideration that
leads one to action or to additional or more
effective actions”.
56. A person can be said to have induced another

person to act in a particular way or not to act in a
particular way if on the basis of facts and statements
made by the first person the second person commits an
51
act or omits to perform any particular act. The test to

determine whether the second person had been induced
to act in the manner he did or not to act in the manner
that he proposed, is whether but for the representation
of the facts made by the first person, the latter would
not have acted in the manner he did. This is also how
the word “inducement” is understood in Criminal law.
The difference between inducement in Criminal law and
the wider meaning thereof as in the present case, is that
to make inducement an offence the intention behind the
representation or misrepresentation of facts must be
dishonest whereas in the latter category of cases like
the present the element of dishonesty need not be
present or proved and established to be present. In the
latter category of cases, a mere inference, rather than
proof, that the person induced would not have acted in
the manner that he did but for the inducement is
sufficient. No element of dishonesty or bad faith in the
making of the inducement would be required.”
42. In the light of the above and on the totality of the facts in the
given case, we are of the opinion that while interpreting a statute, an
effort must be made to give effect to each and every word used by
the legislature. The Courts should presume that the legislature
inserted every part for a purpose and the legislative intention is that
every part of the statute should have effect. While interpreting a
provision, the effort must always be made to find out the true
intention behind the law.
43. From the aforesaid decisions and on a reading of the provisions
of Section 12A of the SEBI Act and Regulation 3 & 4 of PFUTP
Regulations, it is apparently clear that the object of Section 12A &

52
PFUTP Regulations is to curb “market manipulations”. The
manipulative and deceptive devices must be in relation to
“securities” and must be by a person “dealing in securities”. The
Supreme Court in Kanaiyalal (supra) has expanded the term
‘person’ to include a non-intermediary culpable under the PFUTP
Regulations as the front runner was found to be dealing with the
securities. Further, the charge against the “tippee” was required to be
proved under Regulation 3(a),(b),(c),(d) & 4(1) of the PFUTP
Regulations. Further, the use of manipulative device was intended to
deceive another person. The Supreme Court thus enlarged the scope
of “fraud” under the PFUTP Regulations to cover an action or
omission even without deceit if such act or omission had the effect of
inducing another person to deal in securities. Thus, more than
“reckless or careless”, “inducement” becomes more significant where
‘fraud’ is required to be proved. The Supreme Court held that mens
rea is not an indispensible requirement and fraud can be inferred on a
preponderance of probabilities. However, the inferential conclusion
must be arrived at from proven and admitted facts.
44. From the aforesaid, it becomes apparently clear that Regulation
3 and 4 of PFUTP Regulations applies only on persons dealing in
securities. The applicability can be extended to persons who are
associated with the securities directly or indirectly. Admittedly, the

53
appellants are not dealing in the securities either directly or
indirectly. They are auditors of listed companies. In order to bring
them culpable within the four corners of Section 12A and Regulation
3 and 4 of PFUTP Regulations, fraud has to be proved on the basis of
evidence. The Supreme Court in Kanaiyalal’s case (supra) extended
the applicability of the provisions of Regulation 3 and 4 of PFUTP
Regulation on a “tippee” only when a charge against him was
proved. In the instant case, there is no shred of evidence to show that
the auditor / audit firm had fabricated or falsified or fudged the books
of account of SCSL in collusion with the top management of the
SCSL. Further, fraud cannot be proved only on alleged gross
negligence, carelessness or recklessness as amounting to collusion
and connivance on a preponderance of probabilities. The Supreme
Court in Kanaiyalal’s case (supra) has categorically held that the
element of “inducement” must exist and should be proved before
holding that a person is guilty of fraud. In the instance case, there is
no finding that the appellants had induced someone and thereby
played a fraud in the securities market. Assuming without admitting
that the concept of preponderance of probabilities would also apply
in the case of the appellants, still, it must be proved by cogent
evidence that the appellants are guilty of “inducement”. In the
absence, of any evidence, the charge of fraud is not proved, nor the
provisions of Regulation 3 and 4 of PFUTP Regulations applicable.

54
If there was gross negligence, recklessness in adhering to the AAS in
the course of auditing the accounts of SCSL, it can and can only
point out to professional negligence which would amount to a
misconduct to be taken up only by ICAI.
45. The evidence that has been brought on record indicates that
certain directors and employees had connived in the fabrication,
falsification and misrepresentation in the books of account and
financial statements of SCSL. The books of account contained false
and inflated current account bank balances, fixed deposit balances,
fictitious interest from sales. We find that there is no direct evidence
to show that the engagement partners / audit firms / other PW firms
were directly involved in the fabrication of the books of account of
SCSL. In fact, the Chairman of SCSL has gone on record in so many
words that the statutory auditors were kept in the dark and that they
had no role to play in the fudging of the books of account.
46. The fraud at SCSL involved deception by way of manipulation,
fabrication, alteration of accounting records and supporting
documents from which the financial statements were prepared.
Apparently, audit team’s audit procedures did not reveal SCSL’s
alleged fraud because there was a devious systematic scheme by the
SCSL’s Directors, management and employees to circumvent SCSL

55
own corporate governance structure, internal controls and internal
audit as well as the statutory audit process. The modus operandi of
this complex fraud was perpetuated by the management of SCSL
which deceived the naked eye of the auditors. The fake sale invoices
as in the case of genuine sale invoices had a perfect document trail
like purchase orders, time sheets, master software, service
agreements, etc. and therefore very difficult to detect.
47. The scope of the enquiry as directed by the Bombay High Court
was restricted only to the charge of conspiracy and involvement in
the fraud and not to any charge of professional negligence. The
charge of conspiracy or connivance was required to be established by
the respondent on the basis of the material available pursuant to the
investigation. The Bombay High Court while passing the order was
conscious of the fact that Chartered Accountants were not amenable
to SEBI Act. The order of the Bombay High Court was thus passed
in the peculiar facts and circumstances of the given case wherein
jurisdiction was conferred upon SEBI only if it proved that on the
basis of the material the Chartered Accountant was instrumental in
preparing false and fabricated accounts or had connived in the
preparation and falsification of the books of accounts.
48. In our view, action against a Chartered Accountant can be taken
only in terms of Chartered Accountants Act, 1949. SEBI cannot in

56
the garb of proving conspiracy and connivance on the part of the
Chartered Accountant interpret the auditing standard on a standalone
basis. The auditing standards can only be related to the
professionalism of a Chartered Accountant vis-à-vis its professional
misconduct which can only be considered by the ICAI.
49. The respondent on the basis of the material was required to
prove that the audit firm or the engagement partners had willfully
with intent and knowledge connived with the management of SCSL
in the fabrication and falsification of the accounts and induced the
investors in taking a wrong decision. No such finding has been
arrived at by the WTM in the impugned order.
50. The WTM has dwelt at great length in considering the auditing
standards prescribed under the Chartered Accountants Act in coming
to a conclusion that the auditors acted in reckless or careless manner
and thus committed a “fraud” as defined under Section 2(c) of the
PFUTP Regulations. The approach adopted by the respondents is
patently misconceived and based on surmises and conjectures. In the
peculiar facts and circumstances of the case, a finding of guilt cannot
be imposed upon the appellants on the basis of preponderance of
probabilities. There has to be a specific finding that there was an
intention on the part of the engagement partners and/or of the audit
firm that they had deliberately with intention and knowledge

57
fabricated the books of accounts of SCSL in connivance with the top
management of SCSL. In the instant case, there is overwhelming
evidence to show that the fabrication and falsification of books of
accounts was done only by the top management of SCSL and that the
engagement partners as well as the audit firm had no clue nor had
any hand in this fraud. Thus, pinning down the engagement partners
and the audit firms on a preponderance of probabilities that they had
committed a big fraud in a reckless and careless manner cannot in
our view lead to a conclusion that there was any intention or mens
rea on their part. The High Court was very clear and categorical that
SEBI could only proceed under the SEBI laws only if there was a
specific finding of mens rea against the engagement partners and / or
the audit firm.
51. The contention that the term “mens rea” should be broadly
construed and recklessness should be equated to be a part of the term
“mens rea” is erroneous. On this issue, reliance by the respondents
in the case of Naresh Giri vs. State of M.P. (2008) 1 SCC 791 is
misplaced as it was dealing with Sec. 304A of the Indian Penal Code
where it was observed that a person is reckless if he carried out a
deliberate act knowing that there is some risk of damage resulting
from that act but nevertheless continues in the performance of that
act. It was also stated that there are only two states of mind which
58
contributes mens rea, namely, “intention” and “recklessness”. In the
instant case, both elements are missing. No such finding to this
extent has been given by the WTM. The said decision is thus not
applicable. Contention that proof of intention is not required and that
standard of proof can be based on preponderance of probabilities is
also misplaced Reliance on this issue in Securities and Exchange
Board of India vs. Rakhi Trading P. Ltd. 2018(13) SCC 753 is
wholly erroneous. In the case of Rakhi Trading (supra) the standard
of proof was based on preponderance of probability in synchronized
trading under the PFUTP Regulations. That principle is applicable to
persons dealing in the securities market and is not applicable in the
instant case. In the instant case, mens rea was not proved. There is
no finding that the auditors or the audit firms had knowledge or had
intention to connive or collude with the management in the
fabrication of the books of account of the company.
52. On the issue of fraud reliance by SEBI on the decision of the
Supreme Court in Securities and Exchange Board of India vs. Shri
Kanaiyalal Baldevbhai Patel, (2017) 15 SCC 1 is misconceived. The
contention of SEBI that it can exercise its jurisdiction on a Chartered
Accountant as the definition of fraud under Section 2(c) of PFUTP
Regulations includes any representation made in a reckless or
careless manner cannot be applied in the facts of the present case.

59
The decision of the Supreme Court in Kanaiyalal matter (supra) was
passed where the person was dealing directly in securities. In the
present case directions have been issued in a matter where a
Chartered Accountant has certified the books of accounts. Such act
of Chartered Accountant by no stretch of imagination could be
treated as dealing directly or indirectly in securities. It is in this light
that the Bombay High Court clearly held that mens rea is required to
be proved and that there must be an intention and knowledge that an
engagement partner / audit firm connived or colluded with the
management in the falsification and fabrication of the books of
account. The High Court clearly recorded:-
“It is further submitted that during inquiry if any

evidence is brought to the effect that the Auditors with
the connivance and in collusion with Mr. Ramalinga
Raju had fabricated the accounts, then naturally SEBI
can proceed against the petitioners.”
In furtherance to the aforesaid, the Bombay High Court further
held:-
“In a given case, if ultimately it is found that there was

only some omission without any mens rea or
connivance with anyone in any manner, naturally on
the basis of such evidence the SEBI cannot give any
further directions.”
53. Thus, in order to issue any directions under the SEBI Act, SEBI
was required to establish with evidence regarding “connivance” and

60
“collusion” by the auditors with the management of SCSL in the
falsification of the books of accounts. In the present case there is no
shred of evidence of any connivance or collusion nor there is any
finding of actual collusion or connivance by the engagement partners
and / or by the audit firm with the management of SCSL.
54. In this regard Section 11(4)(b) of the SEBI Act provides that
the Board may by an order for reasons to be recorded in writing, in
the interest of investors or securities market, take measures to
restrain persons from accessing the securities market and prohibit
any person associated with the securities market to buy, sell or deal
in securities. Taking this provision into consideration, the Bombay
High Court accordingly laid down the parameters by which SEBI
could issue a direction against a Chartered Accountant while
certifying the books of accounts of SCSL. The provisions of the
SEBI Act cannot be construed to take into its sweep any professional
who is remotely connected with the securities market by way of
certifying the books of accounts. Such inclusion would necessarily
expand the scope and ambit of the SEBI Act and simultaneously
encroach upon the powers of the ICAI under the Chartered
Accountants Act.
55. The impugned order deals at length with the non-adherence to
the auditing standards issued by ICAI. These auditing standards

61
cannot be utilized to prove conspiracy or connivance on the part of a
Chartered Accountant in the absence of any material evidence.
Reliance on the auditing standards would only, at best, lead to a
finding of a lapse in the professional work of Chartered Accountant
which can become a ground for professional misconduct to be taken
up strictly by the ICAI but such lapse under no circumstances could
lead to a conclusion that the engagement partner / the audit firm had
with intent manipulated the books of accounts in a reckless or
careless manner.
56. Let us now consider what is the role of an auditor. Under
Section 224 of the Companies Act, 1956, a Company is required to
appoint an auditor. Under Section 226 of the Companies Act, an
auditor must be a Chartered Accountant within the meaning of the
CA Act. Section 227 provides powers and duties of an auditor. Under
Section 229, an auditor is required to sign the auditor’s report. Under
Section 230, the auditor is required to read the auditor’s report before
the Company in general meeting. Failure to comply with the
provisions of the Companies Act entails penalty upon the auditor
under Section 233 of the Companies Act.
57. Auditing and Assurance Standards (AAS) has been framed by
ICAI relating to the role and responsibility of an auditor. Under
AAS2, the objective of an audit of financial statements, prepared

62
within a framework of recognized accounting policies and practices
and relevant statutory requirements, if any, is to enable an auditor to
express an opinion on such financial statements. The auditor’s
opinion helps determination of the true and fair view of the financial
position and operating results of an enterprise. The user, however,
should not assume that the auditor’s opinion is an assurance as to the
future viability of the enterprise or the efficiency or effectiveness
with which management has conducted the affairs of the enterprise.
The auditor’s work involves exercise of judgement, for example, in
deciding the extent of audit procedures and in assessing the
reasonableness of the judgements and estimates made by
management in preparing the financial statements. Furthermore,
much of the evidence available to the auditor can enable him to draw
only reasonable conclusions therefrom. Because of these factors,
absolute certainty in auditing is rarely attainable. In forming his
opinion on the financial statements, the auditor follows procedures
designed to satisfy himself that the financial statements reflect a true
and fair view of the financial position and operating results of the
enterprise. The auditor recognizes that because of the test nature and
other inherent limitations of an audit, together with the inherent
limitations of any system of internal control, there is an unavoidable
risk that some material misstatement may remain undiscovered.
While in many situations the discovery of a material misstatement by

63
management may often arise during the conduct of the audit, such
discovery is not the main objective of audit nor is the auditor’s
programme of work specifically designed for such discovery. The
audit cannot, therefore, be relied upon to ensure the discovery of all
frauds or errors but where the auditor has any indication that some
fraud or error may have occurred which could result in material
misstatement, the auditor should extend his procedures to confirm or
dispel his suspicion.
58. Under AAS 4, the primary responsibility for the prevention and
detection of fraud and error rests with both those charged with the
governance and the management of an entity. The respective
responsibilities of those charged with governance and management
may vary from entity to entity. Management, with the oversight of
those charged with governance, needs to set the proper tone, create
and maintain a culture of honesty and high ethics, and establish
appropriate controls to prevent and detect fraud and errors within the
entity. An auditor cannot obtain absolute assurance that material
misstatements in the financial statements will be detected. Owing to
the inherent limitations of an audit, there is an unavoidable risk that
some material misstatements of the financial statements will not be
detected, even though the audit is properly planned and performed in
accordance with the auditing standards generally accepted in India.

64
An audit does not guarantee that all material misstatements will be
detected because of such factors as the use of judgment, the use of
testing, the inherent limitations of internal control and the fact that
much of the evidence available to the audit is persuasive rather than
conclusive in nature. For these reasons, the auditor is able to obtain
only a reasonable assurance that material misstatements in the
financial statements will be detected. The risk of not detecting a
material misstatement resulting from fraud is higher than the risk of
not detecting a material misstatement resulting from error because
fraud, generally, involves sophisticated and carefully organized
schemes designed to conceal it, such as forgery, deliberate failure to
record transactions, or intentional misrepresentations being made to
the auditor. Such attempts at concealment may be even more difficult
to detect when accompanied by collusion. Collusion may cause the
auditor to believe that evidence is persuasive when it is, in fact, false.
The auditor's ability to detect a fraud depends on factors such as the
skillfulness of the perpetrator, the frequency and extent of
manipulation, the degree of collusion involved, the relative size of
individual amounts manipulated, and the seniority of those involved.
Audit procedures that are effective for detecting an error may be
ineffective for detecting fraud. Furthermore, the risk of the auditor
not detecting a material misstatement resulting from management
fraud is greater than for employee fraud, because those charged with
65
governance and management are often in a position that assumes
their integrity and enables them to override the formally established
control procedures. Certain levels of management may be in a
position to override control procedures designed to prevent similar
frauds by other employees, for example, by directing subordinates to
record transactions incorrectly or to conceal them. Given its position
of authority within an entity, management has the ability to either
direct employees to do something or solicit their help to assist
management in carrying out a fraud, with or without the employees'
knowledge. The auditor's opinion on the financial statements is based
on the concept of obtaining reasonable assurance; hence, in an audit,
the auditor does not guarantee that material misstatements, whether
from fraud or error, will be detected. Therefore, the subsequent
discovery of a material misstatement of the financial statements
resulting from fraud or error does not, in itself, indicate:
(a) failure to obtain reasonable assurance,
(b) inadequate planning, performance or judgment,
(c) absence of professional competence and due care, or,
(d) failure to comply with auditing standards generally
accepted in India.
This is particularly the case for certain kinds of intentional
misstatements, since auditing procedures may be ineffective for

66
detecting an intentional misstatement that is concealed through
collusion between or amongst one or more individuals in the
management. Whether the auditor has performed an audit or not in
accordance with auditing standards generally accepted in India is
determined by the adequacy of the audit procedures performed in the
circumstances and the suitability of the auditor's report based on the
result of these procedures. However, unless the audit reveals
evidence to the contrary, the auditor is entitled to accept records and
documents as genuine. Accordingly, an audit performed in
accordance with auditing standards generally accepted in India rarely
contemplate authentication of documentation, nor are auditors trained
as, or expected to be, experts in such authentication.
59. Under AAS 30, the auditor should determine whether the use of
external confirmations is necessary to obtain sufficient appropriate
audit evidence to support certain financial statement assertions. In
making this determination, the auditor should consider materiality,
the assessed level of inherent and control risk, and how the evidence
from other planned audit procedures would reduce audit risk to an
acceptably low level for the applicable financial statement assertions.
The auditor should employ external confirmation procedures in
consultation with the management. In deciding the extent to use
external confirmations, the auditor is required to consider the

67
characteristics of the environment in which the entity being audited
operates and the practice of potential respondents in dealing with
requests for direct confirmation. When obtaining evidence for
assertions not adequately addressed by confirmations, the auditor
considers other audit procedures to complement confirmation
procedures or to be used instead of confirmation procedures.
60. Under AAS 28, the report should include a statement that the
financial statements are the responsibility of the entity’s management
and a statement that the responsibility of the auditor is to express an
opinion on the financial statements based on the audit. Financial
statements are the representations of management. The preparation of
such statements requires management to make significant accounting
estimates and judgments, as well as to determine the appropriate
accounting principles and methods used in preparation of the
financial statements. This determination will be made in the context
of the financial reporting framework that management chooses, or is
required to use. In contrast, the auditor’s responsibility is to audit
these financial statements in order to express an opinion thereon. The
auditor’s report should describe the audit as including:
(a) examining, on a test basis, evidence to support the
amounts and disclosures in financial statements;.........

68
The report should include a statement by the auditor that the
audit provides a reasonable basis for his opinion.
61. Further, considering the auditing practices adopted by the ICAI,
the Bombay High Court in Tri-Sure India Ltd. vs A.F. Ferguson
and Co. and Others 1985 SCC OnLine Bom 342 : (1987) 61 Comp
Cas 548, held:-
“In “Statement on Auditing Practices” published by

the Institute of Chartered Accountants of India in the
year 1968, it is pointed out that it is the directors of
a company who are primarily responsible for the
preparation of the annual accounts and for the
information contained in it. The duty of safeguarding
the assets of a company is primarily that of the
management and the auditor is entitled to rely upon
the safeguards and internal controls instituted by the
management, although he will, of course, take into
account any deficiencies he may note therein while
drafting the audit programme. The auditor does not
conduct the audit with the objective of discovering
all frauds, because in the first place it would take a
considerable amount of time and it would not be
possible to complete the audit within the time-limit
prescribed by law for the presentation of accounts to
the shareholders. Further, such an audit would have
to involve a detailed and minute examination of all
the books, records and other documents of the
company, and the cost of doing so would be
prohibitive and disproportionate to the benefits
which may be derived by the shareholders. Finally,
even if such examinations were to be conducted,
there will be no assurance that all types of frauds,
omissions and forgery, etc., would be discovered.
The auditor, while conducting the audit, bears in
mind the possibility of existence of fraud and
irregularities in the accounts of the company.”
69
and further held-
“The duties of auditors must not be rendered too

onerous. Their work is responsible and laborious,
and the remuneration moderate………… auditors
must not be made liable for not tracking out
ingenious and carefully laid schemes of fraud when
there is nothing to arouse their suspicion, and when
those frauds are perpetrated by tried servants of the
company and are undetected for years by the
directors. So to hold would make the position of an
auditor intolerable.”
The Court further held-
On consideration of the authorities cited at the Bar,

the principles which can be carved out are as
follows:
The auditor is required to employ reasonable skill

and care, but he is not required to begin with
suspicion and to proceed in the manner of trying to
detect a fraud or a lie, unless some information has
reached which excites suspicion or ought to excite
suspicion in a professional man of reasonable
competence. An auditor's duty is to see what the
state of the company's affairs actually is, and
whether it is reflected truly in the accounts of the
company, upon which the balance-sheet and the
profit and loss accounts are based, but he is not
required to perform the functions o: a detective.
What is reasonable care and skill must depend upon
the circumstances of each case.
62. In Re Kingston Cotton Mill Company, 1896 2 Ch 279 the
Court of Appeals examined the role of auditors and held that an
auditor is not an insuror and that in the discharge of his duty, he is
only bound to exercise a reasonable amount of care and skill
depending on the circumstances of that case. The notion that the

70
auditor is bound to be suspicious as distinguished from reasonably
careful would lead to a serious error.
63. In Institute of Chartered Accountants of India vs P.K.
Mukherjee, AIR 1968 SC 1104, the Supreme Court held:-
“In other words, the auditing was intended for

protection of the beneficiaries and the auditor was
expected to examine the account maintained by the
trustee with a view to inform the beneficiaries of the
true financial position. The auditor is, in such as
case, under a clear duty towards the beneficiaries
“to probe into the transactions” and to report on
their true character.”
64. In Deputy Secretary to the Government of India, Ministry of
Finance Vs S.N. Das Gupta , AIR 1956 Cal 414, the Calcutta High
Court while examining whether a Chartered Accountant was guilty
of negligence in the discharge of his duties as auditor held:-
“the scope of the enquiry to be made by him and the

nature of the facts which he has to certify have been
held to be indicated. He has to ascertain and report
not merely whether the balance-sheet exhibits, the
true state of the company's affairs as shown in the
books of the company, but also whether the books of
the company themselves exhibit the true state of the
company's affairs.”
“Next as to the method the Auditor must follow. He

must of course examine the books of the company to
see what they contain, but he must also ask for
further information and for explanations when such
are required. In performing that function, he is
required on the one hand to employ reasonable skill
and care, but on the other hand, he is not required to
71
do more. He is not required to begin with suspicion

and to proceed in the manner of trying to detect a
fraud or a lie, unless some information has reached
him which excites suspicion or ought to excite
suspicion in a professional man of reasonable
competence. An Auditor's duty is to see what the
state of the company's affairs actually is and whether
it is reflected truly in the accounts of the company
upon which the balance-sheet and the profit and loss
account are based, but he is not required to perform
the functions of a detective. As has been said, he is a
watch-dog but not a blood-hound and, as the same
thing has been said without the aid of a metaphor,
his duty is verification and not detection, although in
performing the duty of verification, he must employ
reasonable care and skill. What is reasonable care
and skill must depend on the circumstances of each
ease.”
65. In the light of the aforesaid, picking one para of an AAS and
thus holding the appellants to be guilty of gross negligence and
recklessness in conducting the audit is misplaced. Merely because
the auditors failed to seek direct confirmation from the Bank relating
to bank balances and fixed deposit does not amount to gross
negligence or recklessness. AAS should be read as a whole. No
doubt, under AAS-30 there is a responsibility of sending letters
seeking external confirmation and, by not seeking external
confirmation, the auditors failed to exercise care and prudence.
However, it does not mean that there was gross negligence or
carelessness or that the auditors had any intention to defraud the
shareholders of the investors especially when alternate procedure as
per para 39 of AAS-30 was adopted and no fault was found in

72
following such procedure. It may be noted here that SCSL enjoyed a
good reputation for corporate governance and thus there was nothing
wrong in accepting the bank statements and fixed deposits provided
by SCSL. The same were on the letterhead of the Bank and there
was no reason to suspect that the bank statement or the fixed deposits
were not genuine. Merely saying that the norms laid down in AAS
were not followed leads to an inference of gross negligence is
misplaced. The auditor is required to employ reasonable skill and
care and is not required to proceed in the manner of trying to detect a
fraud. When the bank statements were presented by SCSL, the
auditor was entitled to accept the document as genuine. Subsequent
discovery of a material misstatement does not in our opinion amounts
to gross negligence or recklessness amounting to fraud or complete
failure to comply with the auditing standards. At best, it amounts to a
lapse. The audit could have been conducted with more care and
prudence.
66. The contention that the auditor should proceed with the attitude
of professional skepticism as mandated under AAS-4 is misplaced.
Picking a para somewhere from an AAS does not mean that the
auditor only has to sniff like a bloodhound and proceed with an
attitude of professional skepticism. The entire AAS is required to be
considered as a whole to see what are the duties of an auditor and

73
what professional standards are required to be mentioned. Reliance
by the respondents of a decision of the U.S. Court of Appeals in Kyle
Pippins vs. KPMG LLP, MANU/FESC/0889/2014 has no
application to the present controversy. The Court was faced with the
question whether the plaintiffs were entitled to receive overtime
compensation. It was found that the plaintiffs received substantial
specialised education as accountants and held that they were
employed in a professional capacity and thus were not entitled to
receive overtime compensation. While considering the kind of
specialization, the Court observed that professional skepticism
includes having a questioning mind and not doing something
mindlessly, but with perpetual diligence founded in specialized
knowledge and with consistent exercise of discretion and judgment.
None of the above has been found in the impugned order except that
the auditor should proceed with an attitude of professional
skepticism. The WTM lost fact that there are other accounting
standards apart from AAS-4.
67. Reliance on the decision in United States vs Benjamin 328 F.
2D 854 (1964) of the US Court of Appeals is misplaced. The case
was concerned with a securities fraud by an accountant. The Court
was examining whether there was sufficient evidence to convict the
accountant. In that context, the Court held that the accountant

74
deliberately closed his eyes to facts he had duty to see. The
accountant was convicted for conspiring willfully. It was found that
the accountant had knowledge of the falsity of his reports and
deliberately conspired to defraud investors. In that light the Court
observed that the accountant deliberately closed his eyes. No such
finding to this extent has been found in the instant case.
68. From the aforesaid decisions, the principles which can be
culled out is that the auditor is required to employ reasonable skill
and care but the auditor is not required to begin with suspicion or to
proceed in the manner of trying to detect a fraud or a lie, unless some
information has reached which creates suspicion. What is reasonable
care and skill must depend upon the circumstance of each case. The
auditor is not required to perform the functions of a detective. The
auditor is a watchdog and not a blood hound. The duty of an auditor
is verification and not detection.
69. Audit regulators around the world have identified certain
themes, such as the need to exercise more professional skepticism in
difficult audit areas. The circumstances may indicate a need for
deeper examination of how the firms can improve audit quality so
that the audit can serve as reliable and useful for shareholders and
investors. There is a need to maintain a high quality audit on a
consistent basis. In the Indian Courts, the audit oversight mechanism

75
is still evolving. The Companies Act, 2013 now mandates
constitution of a separate National Financial Reporting Authority
which would, inter alia, also review quality of services provided by
the member of the ICAI which has already been set up in 2018.
Complaints against auditors could be considered by this authority but
professional skepticism in isolation cannot be considered under SEBI
Laws. Under Section 28B of the CA Act, a Quality Review Board
has been constituted to perform the following functions, namely-
(i) to make recommendations to the Council with regard to
the quality of services provided by the members of
Institute;
(ii) to review the quality of services provided by the members
of the Institute including audit services; and
(iii) to guide the members of the Institute to improve the
quality of services and adherence to the various statutory
and other regulatory requirements.
70. Thus, in view of the aforesaid, SEBI as a regulator has no
authority under SEBI laws and regulations to look into the quality of
audit services performed by the auditors.
71. Detecting fraud is difficult, especially, involving material
financial statement, misstatements, which occur in about 2 percent of

76
all financial statements (as per the study on forensic accounting and
fraud detection issued by ICAI). Normally the documents supporting
omitted transactions are not kept in Company files. False
documentation is often created or legitimate documents are altered to
support fictitious documents. While fraud detection techniques will
not identify all frauds, the use forensic audit increases the likelihood
that misstatements or defalcators could be detected. The job in
forensic audit is to catch the perpetrators of the financial theft and
fraud which could range from money laundering, tax evasion, false
documentation, etc. Auditing the books of account and forensic
auditing are two different and distinct areas. The procedures for
financial audits are designed to detect material misstatement and not
in material frauds. There is no doubt that many of the financial
misstatements and frauds could be detected with the use of financial
audits which can only be done by a detailed examination of the audit
trail as well as the events and activities behind the documents. This
procedure is problematic and involves a lot of time. On the other
hand, financial audit is dependent on sample documents and reliance
on the audit trail coupled with the fact that financial audit has to be
completed within a stipulated period.
72. Thus, the auditor must not be made liable for not tracking the
carefully laid schemes of fraud when there was nothing to arouse

77
their suspicion especially when the fraud is perpetuated by the top
management of the Company and remain undetected for years. The
auditor does conduct the audit with the objective of discovering all
frauds. When an action is taken against the auditor, one has to look at
the facts which have been subjected to scrutiny and explained by the
auditors. The duty of the Tribunal is to endeavour and ascertain what
was the problem presented to the auditor and what was the
knowledge available to them at the time of audit. In our opinion it
would not be fair to consider the case with hindsight and hold that
the auditor was grossly negligent or reckless in the discharge of their
duties. One must keep in mind the facts available at the time of the
alleged negligence by the auditors and one should not be cowed
down by the facts that emerged after a scrutiny was carried out by the
special audit. So also the standard of care, while assessing the
practice as adopted is justified in the light of knowledge available at
the time of incident and not at the time of trial. The law requires that
a professional man lives up in practice to the standard of the ordinary
skilled man exercising and preferring to have special professional
skill. He need not possess the highest expert skill; it is enough if he
exercises the ordinary skill of an ordinary competent man exercising
his particular art.

78
73. In Bolam vs Friern Hospital Management Committee [1957]
1 WLR 582 it was held:-
“No matter what profession it may be, the common

law does not impose on those who practice it any
liability for damage resulting from what in the result
turn out to have been errors of judgment, unless the
error was such as no reasonably well-informed and
competent member of that profession could have
made.”
74. In Eckersley & Others vs. Binnie & Others, the Court of
Appeal (Civ Div) held :-
“In deciding whether a professional man has fallen

short of the standards observed by ordinarily skilled
and competent members of his profession, it is the
standards prevailing at the time of his acts or
omissions which provide the relevant yardsticks. He
is not, as the learned Judge in this case correctly
observed (at p. 20H of his judgment) to be judged by
the wisdom of hindsight. This of course means that
knowledge of an event which happened later should
not be applied when judging acts and omissions
which took place before that event; a very relevant
consideration here because knowledge of the
Abbeystead catastrophe has (as the evidence shows)
had a profound educational effect. It is proper and
necessary to investigate very carefully the events
leading up to this methane explosion to ascertain
what assessment was made of the methane explosion
risk, and why; but it is necessary if the defendants’
conduct is to be fairly judged, that the making of this
detailed retrospective assessment should not of itself
have the effect of magnifying the significance of the
methane risk as it appeared or should reasonably
have appeared to ordinarily competent practical
men with a job to do at the time.”
79
75. The aforesaid principle was adopted by the Supreme Court in
Jacob Mathew vs State of Punjab and Another (2005) 6 SCC 1. In
Re: A Vakil, ILR (1925) 49 Mad, it was held that negligence by
itself is not a professional misconduct. It must have the element of
moral delinquency. Similar view was adopted by the Supreme Court
in Pandurang Dattatraya Khandekar vs. Bar Council of
Maharashtra, Bombay and Ors. AIR 1984 SC 110.
76. SEBI under the SEBI Act enjoys wide powers under Section
11, 11A and 11B to protect the interests of the investors in the
securities market by taking such measures as it thinks fit. In
Securities and Exchange Board of India vs Pan Asia Advisors
Limited and Others (2015) 14 SCC 77, the Supreme Court held:-
“75. On a reading of the above statutory provisions, we

find under Section 11(1) of the SEBI Act, 1992, a duty
has been cast on SEBI to protect the interest of the
investors in securities and also to promote the
development of the securities market as well as for
regulating the same by taking such measures as it
thinks fit. The paramount purpose has been shown as
protection of interest of investors on the one hand and
also simultaneously for promoting the development as
well as orderly regulation of the security market. By
way of elaboration under Sections 11(2)(a) to (e) it is
stipulated that the duty of SEBI would include
regulating the business in the stock exchanges and any
other securities market which would include the
working of stockbrokers, share transfer agents and
similarly placed other functionaries associated with
securities market in any manner, registering and
regulating the working of the depositories, participants
of securities including foreign institutional investors in
80
particular to ensure that fraudulent and unfair trade

practices relating to securities markets are prohibited
and also prohibiting insider trading in securities.
76. Under Sections 11(4)(a) and (b) apart from and

without prejudice to the provisions contained in sub-
sections (1), (2), (2-A) and (3) as well as Section 11-B,
SEBI can by an order, for reasons to be recorded in
writing, in the interest of the investors of securities
market either by way of interim measure or by way of a
final order after an enquiry, suspend the trading of any
security in any recognised stock exchange, restrain
persons from accessing the securities market and
prohibiting any person associated with the securities
market to buy, sell or deal in securities. On a careful
reading of Section 11(4)(b), we find that the power
invested with SEBI for passing such orders of restraint,
the same can even be exercised against “any person”.
77. Under Section 11-B, SEBI has been invested with

powers in the interest of the investors or orderly
development of the securities market or to prevent the
affairs of any intermediary or other persons referred to
in Section 11 in themselves conducting in a manner
detrimental to the interest of investors of securities
market and also to secure proper management of any
such intermediary or person. It can issue directions to
any person or class of persons referred to in Section 11
or associated with securities market or to any company
in respect of matters specified in Section 11-B in the
interest of investors in the securities and the securities
market. The paramount duty cast upon the Board, as
stated earlier, is protection of interests of the investors
in securities and securities market. In exercise of its
powers, it can pass orders of restraint to carry out the
said purpose by restraining any person.”
77. In Sahara India Real Estate Corporation Limited and Others
vs Securities and Exchange Board of India and Another (2013) 1
SCC 1, the Supreme Court held the SEBI Act is a special law and a
81
complete code in itself containing elaborate provisions with respect
to protection of the interests of the investors. The SEBI Act is a
special Act dealing with a specific subject which has to be read in
harmony with the provisions of the Companies Act, 1956. The
Companies Act and the SEBI Act will have to work in tandem in the
interests of the investors. The Supreme Court held:-
“303.1. Sub-section (1) of Section 11 of the SEBI Act

casts an obligation on SEBI to protect the interest of
investors in securities, to promote the development of
the securities market, and to regulate the securities
market, “by such measures as it thinks fit”. It is
therefore apparent that the measures to be adopted by
SEBI in carrying out its obligations are couched in
open-ended terms having no prearranged limits. In
other words, the extent of the nature and the manner of
measures which can be adopted by SEBI for giving
effect to the functions assigned to SEBI have been left to
the discretion and wisdom of SEBI. It is necessary to
record here that the aforesaid power to adopt “such
measures as it thinks fit” to promote investors' interest,
to promote the development of the securities market and
to regulate the securities market, has not been curtailed
or whittled down in any manner by any other provisions
under the SEBI Act, as no provision has been given
overriding effect over sub-section (1) of Section 11 of
the SEBI Act.”
78. Thus, the powers conferred on SEBI under Section 11 and 11B
is to protect the interests of investors in securities and to promote the
development of and to regulate the securities market. Therefore, the
measure to be adopted by SEBI is remedial and not punitive. In a
given case a measure of debarring a person from entering the

82
securities market will be justified, but in our view, banning an audit
firm or an auditor from auditing the books of a listed Company or
from certifying any report of a listed Company cannot be justified.
By no stretch of imagination, a direction debarring an auditor from
auditing the books of a listed Company can be said to be remedial in
nature. A remedial action is to correct a wrong, or a defect.
Preventive measure can be issued in a given case of unfair trade
practice or where fraud is proved. However, in the instant case, the
direction to debar the auditor from auditing the books of a listed
Company is neither remedial nor preventive. In fact, the direction is
clearly punitive and violative of Article 19(1)(g) of the Constitution
of India as it takes away the fundamental right to carry on its
business. Reliance on the decision of Bank of Baroda vs. Securities
and Exchange Board of India (2000) SCC OnLine SAT 2 to
contend that the powers under Section 11 and 11B of the SEBI Act
are very wide and includes entities not within the regulatory purview
of SEBI is misplaced. The decisions in Bank of Baroda, Sahara and
Pan Asia deal with entities and market participants over whom SEBI
has direct jurisdiction under the SEBI Act and its Regulations. Thus,
the role of debarment is beyond the scope and powers under Section
11 and 11B of the SEBI Act. Direction under Section 11 and 11B of
the SEBI Act can be issued to a person associated with the securities
market. Such directions can only be remedial. If such person is not

83
dealing in securities then only remedial direction could be issued.
Preventive directions cannot be issued. In our opinion, debarment is
punitive. We may further point out that ICAI had initiated
proceedings against the auditors under the CA Act and cancelled
their license to practice as CA. Once their license has been cancelled,
there was no need for SEBI to issue an order of debarment. In our
opinion, it was a redundant exercise in view of Section 226 of the
Companies Act which stipulates that only a CA under the CA Act
could audit a Company. Once the license of an auditor to practice as
a CA has been cancelled by the ICAI, the question of auditing the
books of account of any company does not arise.
79. Appeal No. 6 of 2018 has been filed by ten partnership firms of
CA comprising several partners having their head office at various
places in India. The said ten firms are registered with the Institute of
Chartered Accountants of India (ICAI) established under the CA Act.
The said ten firms does not deal in securities either directly or
indirectly. Further, the ten firms were never the statutory auditor of
Satyam Computer Services Ltd. (SCSL).
80. The charge against the said ten firms is that they are entities /
firms practicing as CA in India under the brand and banner of Price
Waterhouse (PW) and are liable for the audit of SCSL on the basis of
84
them being a member of network of firms under the banner Price
Warehouse (PW).
81. As regards the liability of the firms in the PW Network, the
following facts, as revealed during the investigation, are relevant for
consideration:
(i) SCSL had appointed ‘PW’ (branch office being in
Hyderabad) as its auditors and PW Bangalore is stated to
have taken up the assignment. Persons deployed for the
SCSL Audits were sourced from various firms/offices of
PW. The audits thus involved personnel from various
firms linked to the PW Network.
(ii) The core engagement team who worked on the audit of
SCSL was on the payroll of other PW firms, namely,
Price Waterhouse Calcutta and Lovelock and Lewes
Hyderabad and not PW Bangalore. The resources of
these firms were utilized as per the resource sharing
arrangement between member firms. PW Bangalore has
paid the other two firms for the services rendered by them
in the audit.
85
(iii) Srinivas Talluri, one of the partners who certified the
accounts of SCSL during the period of the accounting
fraud, is a partner in three Price Waterhouse firms,
namely, Bangalore, Calcutta and Hyderabad and S.
Gopalakrishnan, the other partner who certified the
accounts of SCSL during the period of the accounting
fraud, is a partner in two Price Waterhouse firms, namely,
Hyderabad and Bangalore.
82. It has been alleged in the SCNs that these 11 firms have
common branch offices located at New Delhi, Mumbai, Kolkata,
Chennai, Bangalore, Hyderabad, Pune, Gurgaon, Bhubaneswar and
Ahmedabad and there are several common partners in these firms.
These firms share resources, manpower, offices, revenues etc.
amongst themselves and, for this purpose, the ten firms entered into
an agreement with each other. Most of the ‘engagement team’
members which worked on the audit of SCSL were on the payroll of
Price Waterhouse, Kolkata and Lovelock and Lewes, Kolkata.
83. As per available documents, PW network firms in India are
linked to each other on the following two fundamental basis:

86
a. the firms comprising the network are either members
of or connected with the Price Waterhouse Coopers
International Ltd. (PWCIL), a United Kingdom based
private company; and
b. there are Resource Sharing Agreements with each other.
(i) The PW network of audit firms neither operate as a
corporate multinational, nor do they act as agent of
any other member firm.
(ii) Each of the ten firms-
(a) is wholly owned by Indian nationals registered
as Chartered Accountants with the ICAI
(b) is a separate entity
(c) does not own stakes in one another
(d) is separately registered with ICAI
(e) maintains separate books of account
(f) accounts for profit and loss as a separate entity
(g) pays its personnel from separate budgets
(h) has their own PAN and GST Registrations
(i) files separate income tax returns
84. The WTM by the impugned order restrained the ten firms from
issuing any certificate of audited listed companies under the brand

87
and banner PW and further directed the listed companies and
intermediaries registered with SEBI not to engage any one firm
forming part of the PW network for issuing any certificate with
respect to compliance of statutory obligations with SEBI. The
reasoning and finding of the WTM leading to the passing of the
impugned order was based on the following reasons:-
(a) The webpage of PWC India indicates that PWC has
offices at Ahmedabad, Bangalore, Chennai, Delhi,
Hyderabad, Kolkata, Mumbai, Pune etc. and that the
webpage that PWC Global describes PWC as the brand
under which member firms of Price Waterhouse Coopers
International Limited (PWCIL) operate and provide
professional services which member firms include the ten
firms in question.
(b) The settlement order of Securities and Exchange
Commission, USA (SEC) has imposed remedial sanctions
and a cease and desist order against five of the ten firms
of PW in India in the context of fraud at SCSL, namely,
Lovelock & Lewes, PW Bangalore, PW & Co. Bangalore,
PW Calcutta and PW & Co. Calcutta.

88
(c) Similar findings were also given by Public Company
Accounting Oversight Board (PCAOB), USA imposing
similar sanctions.
(d) Institute of Chartered Accountants of India (ICAI) has
formulated rules of network amongst the firms registered
with ICAI which treats networks as being an aggregation
of firms which function as a consolidated unit. The WTM
perceived such network of firms as a single unit /
common entity called Price Waterhouse (PW) instead of
treating it as different registered partnership firms.
(e) The Price Waterhouse network allows the Indian firms to
share the benefits arising out of the brand name PWC and
the resources depending on the arrangements / agreements
inter se the Indian firms. The brand PWC holds the ten
partnership firms in a loose-knit network arrangement,
enabling each firm to derive the advantages of the brand
value without laying down any supervisory mechanisms
to check the quality of performance of various firms
under the network.
(f) The partners and the individual firms have ostensibly held
out to the public to be a single consolidated network of
firms under the brand PW.

89
(g) The engagement letter entered into by SCSL with PW is
signed only as a Price Waterhouse. Neither the name of
the relevant auditor nor the audit partnership firm has
been recorded explicitly thereby leading the stakeholders
to believe that the audit was done by the international
network of PWC.
85. It was contended that the impugned order is manifestly
erroneous in law and the directions given by the Bombay High Court
was totally disregarded. The impugned order is stated to have been
passed under Section 11 and 11B of the SEBI Act which empowers
SEBI to issue directions in the nature of remedies in the interest of
the securities market and investors in securities. It was urged that the
action taken in the impugned order is not remedial but punitive in
nature. It was contended that the alleged irregularities from 2000 to
2009 was only noticed when B. Ramalinga Raju made a statement in
January 2009 with regard to financial manipulation in the books of
account of the SCSL. The impugned order was passed on January 10,
2018 after nine years from the date of issuance of the SCN. It was
thus urged, that no remedial action could be taken after nine years.
The action had become stale and the delay caused, at the instance of
SEBI, was not curable.

90
86. It was urged that the ban imposed is on the CA firms and not on
the partners. It was contended that as on the date of the impugned
order there were 98 partners in the ten firms out of which 70 are new
partners who were not partners of the firms during the period 2000 to
2009 and thus banning them from doing audit work of listed
Company merely because those are presently partners in PW firms is
wholly arbitrary and illegal. Further, 90% of the staff engaged in the
“engagement team” are different now and debarring them for no fault
of theirs was thus also arbitrary and illegal.
87. It was thus contended that vicarious liability of a CA cannot be
extended to the firm and other firms other than the audit firm nor the
vicarious liability could be fastened upon the new partners who
admittedly had no role in the audit of SCSL as they were not partners
at the relevant moment of time.
88. It was contended that the WTM has failed to consider the
provisions of The Partnership Act, 1932 which governs the appellant
firms. The learned counsel submitted that under Section 31(2) of The
Partnership Act, 1932 a partner is not liable for any act of the firm
before he became a partner and thus submitted that the present
partners who were not partners at the relevant moment of time could
not be held liable for any act of the firm or its erstwhile partners.
91
89. It was contended that the ten firms were not involved in the
audit of SCSL. Each of the ten firms is a separate legal entity
registered with ICAI and has its own budget and is assessed
separately under the Income Tax Act. The ten firms have a resource
sharing agreement with each other, based on which the ten firms
share resources, manpower, offices, etc. The sharing of such
resources is to facilitate mobilizing of space, manpower at short
notice and, does not in any way, make the ten firms as one big unit /
firm.
90. Insofar as the engagement team was concerned, it was urged
that the manpower were on a payroll of PW firms of Calcutta and
Lovelock & Lewes Calcutta and their services were paid by PW
Bangalore who undertook the audit of SCSL.
91. It was contended that banning the ten firms on the strength that
they are part of the PW network was wholly illegal. Sharing of
resources, offices, manpower was permissible by ICAI which
governs the profession of CAs and thus holding that such networking
under the brand name PW was responsible for the fraud in SCSL was
totally farfetched which cannot be sustained under any provision of
law. It was contended that each of the ten firms is a separate entity
92
registered separately with the ICAI and is assessed separately under
the Income Tax Act.
92. It was urged that the ban order was wholly illegal and in
violation of Article 14 & 19(1)(g) of the Constitution of India.
93. The stand of SEBI before us is the same. The learned senior
counsel submitted that the findings given by the WTM does not
suffer from any error of law. It was contended that under the SEBI
Act, especially under Section 11 & 11B of the Act, SEBI enjoys wide
and extensive power to issue any measures in the interest of investors
and to promote the development of, and regulate the securities
market. It was urged that one of the powers which SEBI can exercise
is to issue a direction of debarment against persons associated with
the securities market.
94. It was contended that the SCSL scam had a direct and adverse
impact in the share market. The prices of SCSL scrip fell drastically.
Millions of investors lost their hard earned money on account of
abject failure on the part of the statutory auditor of SCSL in failing to
comply with its duty to the shareholders of ensuring fairness and
accuracy in the audited accounts. It was urged that failure to comply
with the basic auditing standards constituted fraud and thus it was
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vital to uphold the directions in the impugned order against all PW
entities.
95. It was contended that even though PW Bangalore is stated to
have taken up the audit assignment of SCSL, the audit assignment
was accepted on behalf of PW. The letterhead did not mention PW
Bangalore. In fact, the letter of acceptance was issued on the
letterhead of PW Hyderabad and thus an irresistible inference can be
drawn that all PW CA firms were one and the same under a common
brand and network. This is further fortified that persons deployed for
the audit were sourced from other PW firms of PW network.
96. The learned senior counsel submitted that the PW network
enabled the PW entities to set up and maintain standards of auditing
which were grossly deficient as per accounting norms prescribed by
ICAI. The PW entities were projecting themselves as a brand value
under the banner PW. Since the auditing standards across PW entities
were deficient, it became imperative to issue directions against all the
PW entities network. It was contended that since partners and staff
were sourced from other PW entities, the gross non-compliance with
accounting standards was not limited to those partners and staff but
was related to all PW entities. It was urged that PW Bangalore was
not representing the audit of SCSL. In fact, the network of PW
entities represented themselves as the single network and functioned

94
as one “loose knit” unit. It was thus urged that the appellant’s
contention that each firm was independent and a separate entity
cannot be accepted. In any case, the alleged independence and
individuality of the PW entities was not taken upon by them before
the regulatory authorities in USA and the action taken against them
was accepted by the appellant. Thus, it does not lie in their mouth to
contend that they are independent entities.
97. It was further urged that the resource sharing agreement
between the PW entities clearly indicated that they were entitled to
draw resources from other firms and share notes relating to
maintaining professional standards of accounting. The agreements
makes it apparently clear that the firms worked closely with each
other, as part of the PW network to maintain common standards in
auditing and other services and therefore functioned as one
consolidated unit.
98. In the light of the aforesaid, the admitted fact that is culled out
on which there is no dispute is, that the ten firms are not dealing in
the securities market. These firms are auditors registered with ICAI.
They are independent bodies and have their own budget, maintain
separate books of account and are assessed separately as a separate
entity by the Income Tax Authority. These firms have no stakes in

95
one another. These ten firms were not the statutory auditors of SCSL
and were not involved in the auditing of the books of account of
SCSL. There is no evidence of revenue sharing between the PW
firms.
99. There is no evidence to indicate that the ten firms had any role
to play in the audit of SCSL. These ten firms had nothing to do with
the audit of SCSL. They had no knowledge of the day to day affairs
of SCSL either directly or indirectly. There is not even a whisper of a
finding in the impugned order against the ten firms about any
connivance or collusion or intention or knowledge on their part in the
audit of SCSL. The entire basis of debarring the ten firms is the
resource sharing agreement, the brand PW and the networking of PW
as a brand. In our opinion, the approach adopted by the WTM is
patently erroneous and is flawed.
100. In the absence of any finding of connivance or collusion or
intention or knowledge on the part of the ten firms in the audit of
SCSL, and in view of the clear cut directions of the Bombay High
Court, no directions could have been issued by the WTM against the
ten firms. The reasoning adopted by the WTM in relation to the
resource sharing agreement, the brand PW and the networking of the
PW cannot be accepted.
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101. The ten firms have entered into a resource sharing agreement in
which resources are shared pursuant to an agreement and on the basis
of consideration and without liability being transferred. For facility,
the contents of the agreement is extracted hereunder:-
“WHEREAS the firms of chartered accountants are

engaged mainly in providing audit and other related
services.
WHEREAS the firms employ qualified and trained

resources for the purpose of providing audit and other
related services to their respective clients.
WHEREAS the Firms have agreed to work together and

maintain certain standard and best business practices.
WHEREAS in view of the growing volume of business

of the Firms it is felt that in order to ensure rendering of
quality services to their respective clients in the field of
audit and other related services the Firms would draw
collective resources employed amongst the Firms on an
‘as-necessary’ basis. The resource would include
manpower, relevant technical expertise, administrative
and other support (the shared resources) required to
execute professional assignments.
NOW THEREFORE it is agreed by and between the

Parties and follows –
A. Each Firm on an ‘as-necessary’ basis would be

entitled to draw resources form the other Firms
to ensure rendering of quality services to their
respective clients.
B. The consideration for rendering the above

services would be mutually agreed between the
Firms.
C. The Firms shall meet from time to time through

their designated representatives to exchange
notes and professional learnings and shall
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discuss means of enhancing their mutual

benefit from one another in relation to shared
resources, and maintain quality standards
among the resources forming part of each firm.
D. The agreement shall have effect from 1st April,

2000. Any Party may terminate the above
arrangement at any point by giving prior
written notice of at least 90 days to that effect
to the other Party. Such termination shall be
without prejudice to the rights and obligations
accruing prior to the termination taking effect.
E. Each Firm shall be responsible and liable for

the delivery of services to clients and for all
consequences relating to the professional
assignments executed by such firm regardless
of whether any of the shares resources have
been deployed in the provision of services
relating to the respective assignments.
F. Nothing contained in the agreement shall

constitute an authority in favour of any of the
Firms to represent, commit or engage on behalf
of the other Firms merely by reason of the
sharing of resources or any other act pursuant
to the agreement. Nothing contained in the
agreement shall constitute a partnership or an
agency or donation of a power of attorney in
fact or in law to represent, bind or liaise in
favour of any Firm on behalf of any of the
Firms. The sharing of resources pursuant to this
agreement shall be purely on a principal-to-
principal basis alone.
G. Any dispute or difference in relation to this

agreement shall be resolved by binding
arbitration by a sole arbitrator to be appointed
by mutual consent in accordance with the
Arbitration and Conciliation Act, 1996
IN WITNESS whereof this agreement has been

duly executed the day and year abovewritten.”
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102. The resource sharing agreement makes it clear that the firms
could draw collective resources employed amongst the firms on an
“as necessary” basis in order to ensure rendering of quality services
to their respective clients in the field of audit, etc. For the services
rendered consideration would be paid to the said firm. Clause (E) of
the agreement makes it apparently clear that the responsibility and
liability will remain with the audit firm relating to the professional
assignment executed by such firm and the firm which is providing
any kind of resources would not be made liable or responsible.
Clause (F) further amplifies that firms providing resources would not
give any authority in favour of that firm to represent on behalf of
other firms of the firm which has been given the audit. Further, the
resource sharing agreement would not constitute a partnership
between them and the sharing of resources would be purely on a
principal-to-principal basis.
103. The WTM on the basis of this resource sharing agreement has
concluded that the said agreement indicates a network between the
PW firms. It is an admitted fact that one of the PW firms, namely,
Lovelock & Lewes provided the staff which formed part of the
engagement team deputed to work on the SCSL audit. As per the
resource sharing agreement, this arrangement was permissible. There
is evidence to the effect that the Bangalore firm paid Lovelock &
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Lewes for the services rendered by them. No evidence of any
misconduct of any kind has surfaced with regard to any member of
the engagement team.
104. Thus, engaging staff from another PW firm was permissible
under the resource sharing agreement which was allowed by ICAI.
Therefore, no adverse inference of any kind of networking can be
drawn. Further, the mere fact that Srinivas Talluri and S.
Gopalakrishnan were also partners in other PW firms does not mean
that all PW entities is one big entity or are working under one
umbrella. If the law permits a person to be a partner in two or more
firms, then it is permissible for that person to become partners in
more than one firm. Misconduct committed by a partner in one firm
will not make the second firm liable. Under the Companies Act it is
permissible for a person to be a director in many Companies. If one
director of a Company commits a violation of any SEBI laws and is
penalized it does not mean that other Companies in which the said
person is also a director are also penalized. Thus, if Srinivas Talluri
and S. Gopalakrishnan are partners in a CA firm, a fault committed
by them in that firm would not affect their liability in other CA firms.
105. ICAI has formulated Rules of Network amongst the firms
registered with the ICAI. These Rules enable the practice of CA
firms as a Network on a sharing of resources basis. In order to

100
appreciate as to what in fact is a network, it would be relevant to
extract a few provisions of the Rule:-
“RULES OF NETWORK
1. These Rules are called Rules for Network amongst

the firms Registered with. The Institute of Cost
Accountants of India.
2. Definition.
(i) Network –
“Network amongst two or more firms means an

arrangement to facilitate the better function of the
affiliate member firms in the interest of the
profession and not for acquisition of any gain
Such Network shall include the formal Network to
use collective resources such as turnover,
infrastructures manpower location for execution
of Professional services of one or more type.
[Explanation –
1. An affiliation as referred to above shall also include:
(i) Having an association with an accounting

entity within or outside India such that it
results directly or indirectly in a common
professional economic of beneficial interest.
(ii) One or mode of the entities holding out that

it so affiliated or networked.
2. An entity shall not be treated as an affiliated

of another merely for the reason that they
(a) Share professional knowledge and data

base.
(b) Refer certain professional assignment or
authorize the other to represent certain
specific matters.
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3. If different Indian firms are network with a

common Multi‐National Accounting Firms (MAF)
then irrespective of the presence/absence of any
affiliate relationship between the Indian firms
inter‐set they shall be considered as part of a
network)
(ii) Formal Network - Formal network means a

network amongst two or more firms registered
with The Institute of Cost Accountants of India
(ICAI) where the object of network is to use the
collective resources of the affiliates for execution
of professional services of one or more type at one
and/or at multination points. The resources would
include financial technical and other logistic
support required to execute the professional
assignment. In such type of network, the common
resources may be pooled and exhibited together
the service user as those belonging to one
particular set of professional.
3. Name of Network:
(i) The Network may have distinct name which

should be approved by the Institute. To
distinguish a “Network” from a firm “of Cost
Accountants, the words “&” Affiliates should be
used after the name of the network and the words
“& Co” /”& Associates” should not be used. The
prescribed formal of application for approval of
Name for Network is From ‘A’(enclosed)
(ii) Standards prescribed in Regulation of the Cost &

Works Accountants Regulation 1959 shall be
applicable to the name of network.
4. Registration:
(i) A Formal network is required to be registered

with the Institute in a prescribed From
‘B’(enclosed).
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5. Ethical Compliance :
Once the relationship of network arises, whether

registered or not with the Institute, it with be
necessary for such a network to comply with all
applicable ethical requirements prescribed by the
Institute from time to time in general and the
following requirements in particular.
(a) If one firm of the network is the statutory of

an entity then the associates (including the
networked firm(s)) or the said firm
directly/indirectly should not accept the internal
audit or book‐keeping or such other professional
assignments which are prohibited for the statutory
auditor firm.
6. Consent of Client:
The network shall obtain consent of the client to

engage affiliate in discharging the professional
assignment.
8. Object of Network:
The Network itself will not carry on any business

for acquisition of gain for itself and only act as a
facilitator for its members/constituents Members
firms to pursue their professional jobs.
10. Issuing Reports:
Only the firm(s)/Member(s) forming network are

eligible to issue/sign/attest any
certificate/Report/professional
document/assignment
11. Violation of Act:
In case of alleged violation of the provisions of

the ‘Act’ Regulations framed there under
guidelines/directions laid down by the Council
from time to time and Code of Ethics by the
Network firm, the proprietary/partnership
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firms(s)/Individual Member constituting the

Network would be answerable.
106. From the aforesaid, it is clear that the Rules of Network provide
that two or more firms can form a network. Such network share
includes the formal network to use the collective resources such as
turnover, infrastructure, manpower, etc. Formal network means a
network amongst two or more firms registered with ICAI where the
object of the network is to use the collective resources of the
affiliates for execution of professional services. The resources would
include financial, technical and other logistical support required to
execute the professional assignments. Common resources could be
posted and exhibited together. Further, the network would have a
distinct name which has to be approved by ICAI. The Network is
distinguished from a “firm” of CA. If the network is approved by
ICAI, then the firm shall use the word “& Affiliates” instead of the
words “& Co” or “& Associates”. Accordingly, standards as
prescribed by ICAI under the CA Regulations, 1988 would be
applicable to the Network. Under Clause (4) of the Rules, a network
is required to be registered with ICAI. Clause (6) prescribes ethical
requirements, namely that if one firm of the network is the statutory
auditor of an entity, then the associate firms should not directly or
indirectly accept the internal auditing or book keeping.

104
107. In the instant case, there is no evidence on record to show that
the network is registered with ICAI under the Network Rules. There
is no evidence to show that the network is using the turnover or
financial of each firm as a collective resource and the same is being
pooled. There is no evidence that the ten firms are using the word “&
Affiliates”. In fact the evidence is otherwise. All the ten firms are
using the words “& Co” or “Associates”, which thus indicates that
there is no network. However, before the SEC and the PCAOB and
even before the Supreme Court some of the firms have admitted of
having a network with PWCIL. We are of the opinion that mere
admission on the part of the ten firms that there is a network of PW
firms would not make all the ten firms guilty of fraud or
manipulation of the books of accounts of SCSL. The approach of the
WTM in aiming the network responsible for the fraud in SCSL is
farfetched, and cannot be sustained. If ICAI allows independent
firms to pool their resources it does not make these firms as one big
unit. There is no shred of evidence to show that there was revenue
sharing between the ten firms. We are further of the opinion that
being members or connected with PW Cooper International Ltd., a
UK based private limited company, may make them a network of
firms under the name PW but that by itself does not make them
responsible for the alleged irregularities in the audit of SCSL. The
network Rules does not, in our opinion, shows that ICAI perceives a
105
network of firms as a “single unit”. For the purpose of avoidance of
conflict of interest, the clause relating to ethical compliance
providing that if one firm of the network is a statutory auditor of an
entity, then an associate firm of the same network cannot accept
internal audit of the same Company does not amount nor can it lead
to an inference that the PW network is working as one consolidated
unit. So long as these ten firms are separately registered and are
assessed separately under the Income Tax Act, SEBI cannot hold
them to be one large unit / entity.
108. SEBI produced a compilation of documents which included
engagement letters, balance sheets signed by auditors,
correspondence issued by auditors, minutes of board meetings, in
order to make a point that the firms were holding out to the market as
one entity and that the various letters and balance sheets showed that
they were being signed in the name “Price Waterhouse” and not any
particular firm like the appellant in Appeal No. 7 of 2019. SEBI thus
contended that it is the network which represents SCSL and that the
audit is conducted by the network when it uses the term “Price
Waterhouse”. The contention of SEBI is completely misconceived
and false. In our opinion the audit opinion is signed by the appellant
in Appeal No. 7 and not by the network. Further, the letterhead used
for the audit opinions as well as engagement letter is the letterhead of

106
“Price Waterhouse”, i.e. the firm which conducted the SCSL audit
and not the network of firms. The address of Hyderabad mentioned
on the letterhead is the address of the Hyderabad branch of the firm
which conducted the audit. We further find that AAS 28 of ICAI
provides for the following:
“The report should be signed by the auditor in his

personal name, where the firm is appointed as the
auditor; the report should be signed in the personal
name of the auditor and in the name of the audit firm.
The partner / proprietor signing the audit report
should also mention the membership number assigned
by the ICAI.”
109. In accordance with the AAS 28, the audit opinion has been
signed by the engagement partner, namely, Mr. Srinivas Talluri who
has also put his ICAI membership number and the name of the firm
which conducted the audit i.e. the appellant in Appeal No. 7 of which
he was a partner. Clause 27 of the AAS 28 requires “place of
signature” to be mentioned in the auditor’s report. Accordingly, the
place of signature i.e. Hyderabad was mentioned. Thus, it is clear
that the letterhead bearing “Price Waterhouse” and the name of
“Price Waterhouse” appearing in the signature clause is not the
network of firms as suggested by SEBI. It is the name of the firm
which conducted the audit namely “Price Waterhouse”. The ICAI
registration number of this auditing firm is 07568S.

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110. SEBI’s argument that the audit opinions were signed by the
network of Price Waterhouse is legally untenable and contrary to the
applicable law. Section 226(1) of the Companies Act, 1956 provides
that-
“226. QUALIFICATIONS AND DISQUALIFICATIONS OF

AUDITORS.
1. A person shall not be qualified for appointment as

auditor of Company unless he is a chartered accountant
within the meaning of the Chartered Accountants Act,
1449 (38 of 1949):
Provided that a firm whereof all the partners practicing

in India are qualified for appointment as aforesaid may
be appointed by its firm name to be auditor of a
company, in which case any partner so practicing may
act in the name of the firm”.
Therefore, the stress on the words “We”, “our” etc in the audit
opinion means that it represents the PW network is absolutely
erroneous in as much as the representation was only by the concerned
firm which conducted the audit.
111. SCSL and shareholders knew that they were appointing a firm
and not a brand or a PW network. Further, SCSL and its shareholders
knew that the specific partner alone would carry out the audit and not
entire Firm. Audit can only be performed by a partner on behalf of a
Firm and thus, the audit opinions have been signed by the concerned
engagement partners of SCSL responsible for the audit. Section 229

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of the Companies Act is a complete answer to the aforesaid. It
provides:-
“229. SIGNATURE OF AUDIT REPORT, ETC.

Only the person appointed as auditor of the company,
or where a firm is so appointed in pursuance of the
proviso to sub-section (1) of section 226, only a partner
in the firm practising in India, may sign the auditor's
report, or sign or authenticate any other document of
the company required by law to be signed or
authenticated by the auditor.”
112. The definition of “engagement partner” under the ICAI Code of
Ethics means the partner or other person in the firm who is a member
of the ICAI and is in full time practice and is responsible for its
engagement and its performance and its report that is issued on
behalf of the firm and, who, where required, as an appropriate
authority from a professional, legal or regulatory body. Much stress
has been laid by the WTM on the engagement letter to mean that the
audit was given to the PW network. The approach adopted is
erroneous. The engagement letter is addressed by the firm which was
appointed as the auditor viz., the appellant in Appeal No. 7 and not
by the network of firms. Clause 12 of the Code of Ethics by ICAI
states that-
“However, the Council has decided that where a

Chartered Accountant while signing a report or, a
financial statement or any other document is statutorily
required to disclose his name, the member should
disclose his name while appending his signature on the
report or document. Where there is no such statutory
109
requirement, the member can sign in the name of the

firm.”
113. The engagement letter indicates that it is the firm and not the
network that has issued the engagement letter as can be seen from the
letter heads and the signature clause of the engagement letters issued
by firms Dalal & Shah, Price Waterhouse & Co. and Lovelock &
Lewes. Similarly, even the letter for appointment of statutory
auditors was addressed by SCSL to Mr. Gopalakrishnan at the
Hyderabad branch of appellant in Appeal No. 7. The response was
addressed by the Mr. Gopalakrishnan of the appellant in Appeal
No. 7.
114. The WTM referred to certain letters to show that the letters
were being addressed in the name of “Price Waterhouse” from the
Shivaji Park office in Mumbai. It was thus urged that it was that PW
network that was auditing the accounts of SCSL. The submission of
the respondent is untenable for the same reasons that the said letters
were issued by the appellant in Appeal No. 7 and not by the network
firms. The Shivaji Park address is the branch office of the appellant
in Appeal No. 7. It was signed by a partner of the appellant in Appeal
No. 7. This does not in any way show any acceptance of
responsibility by the network of appellant firms as alleged by SEBI.
Section 27 of the Chartered Accountants Act, 1949 permits

110
maintenance of branch offices for Chartered Accountancy firms
“Maintenance of branch offices: where a chartered accountant in
practice or a firm of chartered accountants has more than one office
in India, each one of the offices shall be in separate charge of a
member of the institute. This clearly explains signing of the letter by
the Shivaji Park branch of the appellant in Appeal No. 7 by one of its
partner.
115. Thus the mere fact that the webpage of PWC India describes
that they have offices at various places in India does not mean that
they refer to the offices of the ten firms in question. The webpage of
PWC global may describe PWC as a brand but it does not mean that
it includes the brand PW which is operational in India. In any case,
even if there is a network of PW firms, implicating the ten firms on
the ground of networking as PW firms is misconceived and
untenable. There has to be a specific finding that the ten firms were
in collusion and that there was intention and knowledge to play fraud
in the audit of SCSL.
116. The webpage of PWC or PWC global does not identify that PW
entities are working closely with each other under the same brand
and identify themselves with the said brand. Even if the PW brand is
being used by the ten firms, it does not lead to an inference that these
ten firms are PWC and the same entity. Using the brand PW, does
111
not make the ten firms liable for the act done by one PW firm. The
liability for acts or omissions is certified to individual firms and
cannot be passed on to the network firms using PW brand. The
resource sharing agreement between the firms relates to sharing of
certain types of resources. It was nothing to do with the brand PW.
The ten firms have been allowed to use the PW name from the
PWCIL UK. The mere fact that PW firms in India are members of
PWCIL UK and are allowed to use the brand PW does not make
them into a “loose knit network arrangement as one consolidated
entity” and thus be made liable. If any advantage is gained by using
the brand PW, it does not mean that all the PW firms are working
under one umbrella even if the network is omnipresent and
identifiable by its name.
117. The contention that investors were misled into believing that
the audit was carried out by an international firm called PW is
patently erroneous. The international firm is called PWC and the
Indian firm is PW. There is a world of a difference between PWC
and PW.
118. Much reliance has been placed on the settlement orders of the
Securities and Exchange Commission (SEC) and Public Company
Accounting Oversight Board (PCAOB). To elaborate on this issue,

112
we find that in the aftermath of the SCSL scam, the SEC and the
PCAOB of the United States of America deemed it appropriate to
institute “cease and desist” and censure proceedings against PW,
Bangalore, Lovelock and Lewes, Kolkata, Price Waterhouse & Co.
Bangalore, PW, Kolkata and Price Waterhouse & Co. Kolkata
(Appellant Nos. 1, 5 and 2 in Appeal No. 6 of 2018). These
proceedings were instituted pursuant to the relevant provisions of the
Securities Act which, inter alia, dealt with an auditor lacking in
character or integrity or found to have engaged in unethical or
improper professional conduct or willfully violated or aided or
abetted the violation of the securities laws. The consenting PW
entities anticipated the institution of these proceedings and submitted
‘an offer of settlement’ which was accepted by the SEC and PCAOB.
In the light of the said offers of settlement, consent orders were
passed by both, SEC and PCAOB dated 5th April 2011. In the order
dated 5th April 2011, the SEC observed that there had been gross
violations of the auditing standards in the SCSL audit.
119. The WTM has relied upon certain observations made in these
orders, some of which are extracted hereunder:-
“4. The failures in the confirmation process on the

Satyam audit were not limited to that engagement, but
were indicative of a quality control failure throughout
PW India. During the relevant period, PW India’s
quality control system failed to detect that engagement
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teams throughout PW India routinely relinquished

control of the delivery and receipt of cash
confirmations to their audit clients and rarely, if ever,
questioned the integrity of the confirmation responses
they received from the clients. Despite annual quality
reviews, PW India did not recognize this compliance
failure until after January 2009....
11. Lovelock, PW Bangalore, PW Co. Bangalore, PW

Co. Calcutta, and PW Calcutta are member firms of
PricewaterhouseCoopers International Limited, a
United Kingdom-based private company.
12. PW India, along with five other India-based PwC

network Firms, operate as a domestic Indian network of
related audit firms. As such, these firms share
common audit and other assurance and assurance
risk management leadership and follow common audit
and other assurance policies and procedures, including
in the areas of audit and assurance risk management,
training and supervision.
13. PW India and the five other India-based PwC

Network Firms operate their audit practices under
resource sharing arrangements that facilitate the
provision of audit services as a network of related
firms. … PW India partners typically are affiliated with
several firms within the domestic network of audit firms
simultaneously. During the relevant period, PW India
and the other domestic India-based firms shared
resources and settled inter-firm balances at the end of
each fiscal year.
14. PW India and the five other India-based PwC

Network Firms operate in a manner that generally does
not make any distinctions among the individual firms in
the network. For example, the PW India Firms share
office space and have identical telephone numbers. In
addition, the Respondents’ website makes no obvious
distinction among the individual PwC Network Firms
located in India.”
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120. We have perused the SEC order and PCAOB order. We are of
the opinion that the observations made in the said orders cannot be
relied upon as a piece of evidence in as much as these are settlement
orders where the firms agreed to settle with SEC and PCAOB in
exchange for a reasonable order involving remedial measures as a
result of which the firms were allowed to continue with the existing
audit engagement. The settlement orders issued a slew of remedial
measures which was accepted and acted upon by the appellants. In
our view, the settlement orders have no precedential value in SEBI
proceedings. If SEC and PCOAB are to be relied upon by SEBI, then
they should have also issued similar measures and further allowing
PW firms to continue with the existing audit arrangement instead of
debarring them from auditing listed Companies. The appellants have
denied the findings and observations in these orders and in our
opinion are entitled to deny these findings in any other legal or
regulatory proceedings. Whereas, SEC & PCAOB had jurisdiction
over auditors of US listed Companies, the same is not the case with
SEBI. We may point out that PCAOB in its order acknowledged at
multiple places that PW Bangalore served as SCSL’s auditor. The
PCAOB also recorded that Price Waterhouse & Co., Bangalore, Price
Waterhouse, Calcutta and Price Waterhouse & Co., Calcutta did not
participate in the audits of SCSL.

115
121. In our view the observations made in SEC & PCAOB orders
that failure in the confirmation process in the SCSL audit were not
limited to that engagement but were indicative of a quality control
failure throughout PW India or the observations that there had been
gross violations of the auditing standards in the SCSL audit cannot
be utilized. The WTM, in order to implicate the PW firms was then
required to go into the individual accounting standards adopted by
each firm in relation to their audit engagement with their listed
Company and then arrive at a finding that the accounting standards
were not a per the standards prescribed by the ICAI. Resource
sharing agreement would not in our view lead to a conclusion that
each firm was adopting the same accounting standards as adopted by
the audit firm which audited SCSL. Thus, reliance by the WTM on
the SEC & PCAOB orders does not prove connivance or collusion,
nor leads to a conclusion that these firms do not meet with the
prescribed accounting standards as per ICAI.
122. The decision in S. Sukumar vs. Secretary, Institute of
Chartered Accountants of India, (2018) 14 SCC 360 relates to
possible violation of Section 25 and Section 29 of CA Act and
FEMA Regulations. The observations given are only prima facie. In
fact the Supreme Court directed the Union of India to constitute a
three member Committee of experts to look into the statutory

116
framework of Sections 25 and 29 of the CA Act and to bring
appropriate legislation for oversight of the profession of auditors, etc.
In the instant case, the jurisdiction of SEBI to pass orders against CA
is governed by the Bombay High Court order which provides that
SEBI has to establish intention, knowledge, connivance, collusion,
mens rea on the part of a CA. The order of Bombay High Court is
binding on SEBI.
123. There is one other aspect which nails the issue and this is
Section 31(2) of the Indian Partnership Act, 1932. For facility, the
provision is extracted hereunder:-
Section 31(2)
“Subject to the provisions of section 30, a person who

is introduced as a partner into a firm does not thereby
become liable for any act of the firm done before he
became a partner.”
124. The aforesaid provision is patently clear. A new partner
inducted into a firm is not liable for any act of the firm done before
he became a partner. Further, when a new partner is taken or an
existing partner retires with the consent of all the partners, it becomes
a case of reconstitution of the partnership firm under Section 187 of
the Income Tax Act. Where a firm is dissolved either by agreement
of the partners or by operation of law and another firm takes over the
business, then it will be a case of succession governed by Section

117
188 of the Income Tax Act as held by a Full Bench of the Allahabad
High Court in Dahi Laxmi Dal Factory vs. Income Tax Officer,
Sitapur, 1974 All LJ 883.
125. Thus, the liability of a new partner commences from the date of
his admission as a partner in the firm. He is not liable for the pre-
existing debts. Unless there is an agreement to show that the
incoming partner is liable for the pre-existing debts, a new partner
cannot be made liable to honour the liabilities of the old firm before
he became a partner.
126. In this regard, reliance is placed on the judgment of Sharad
Vasant Kotak and Ors vs Ramnik Lal Mohanlal Chawda and Anr.
[(1998) 2 SCC 171]. Paragraph 16 of the judgment states:-
“Each partner is, it is true, the agent of the firm; but as

pointed out before, the firm is not distinguishable from
the persons from time to time composing it; and when a
new member is admitted he becomes one of the firm for
the future, but not as from the past, and this present
connection with the firm is no evidence that he ever
expressly or impliedly authorized what may have been
done prior to his admission. This is wholly consistent
with the fact that after the admission of a new member,
a new partnership is constituted, and thus special
circumstances are required to be shown before the
debts and liabilities of the old partnership are treated
as having been undertaken by the new partnership.”
127. From the aforesaid, it is apparently clear that every time there is
a change in the partnership, the firm is treated to have been

118
reconstituted and appropriate filings are done as per Regulation
190(4) and 190(7) of CA Regulations, 1988.
128. In this regard the appellants have taken a specific plea in
paragraphs 6.20 and 6.24 of the memo of appeal, namely, that a
majority of the current partners of the ten firms became partners only
after 2009. This fact has not been denied by the respondent. As on
the date of the impugned order there were 98 partners in the ten firms
out of which 70 are new partners who were not partners of the PW
firms during the period 2000 to 2009. Thus banning them from doing
audit work of listed Company merely because they are presently
partners in PW firm is in complete violation of Section 31(2) of the
Partnership Act. Specific arguments were raised by the ten firms on
this issue before this Tribunal which was not countered by the
respondent. However, in the written submission a feeble assertion
was made to the effect that the SEBI Act is a standalone statute and
the direction issued under the SEBI Act cannot be tested on the basis
of the provisions of the other Acts. It was asserted that securities
fraud is unique and must be viewed in the context of the securities
market and innocent investors which cannot be rectified by resorting
to conventional and old laws. Such submissions show bankruptcy of
ideas. Instead of conceeding, the attitude of the respondent appears to
be that SEBI and SEBI laws are superior, and that SEBI cannot be
119
brow beaten. The respondent has lost sight of Section 32 of SEBI Act
which specifically provides that the provisions of the SEBI Act shall
be in addition to, and not in derogation of the provisions of any other
law for the time being in force. Such “old” law is the Partnership Act
which is still in force and is squarely applicable.
129. Section 4 of The Partnership Act, 1932 defines a “partnership”.
The Supreme Court in Deputy Commissioner of Sales Tax, (Law)
Board of Revenue (Taxes), Ernakulam vs. M/s. K. Kelukutty,
(1985) 4 SCC 35 explained partnership as-
“The Indian Partnership Act, 1932 has, by Section 4,

defined a “partnership” as “the relation between
persons who have agreed to share the profits of a
business carried on by all or any of them acting for
all”. The section declares further that the persons who
have entered into partnership with one another are
called individually “partners” and collectively “a
firm”. The components of the definition of
“partnership”, and therefore of “a firm” consist of (a)
persons, (b) a business carried on by all of them or any
of them acting for all, and (c) an agreement between
those persons to carry on such business and to share its
profits. It is the relationship between those persons
which constitutes the partnership. The relation is
founded in the agreement between them. The foundation
of a partnership and, therefore, of a firm is a
partnership agreement. A partnership agreement is the
source of a partnership; it also gives expression to the
other ingredients defining the partnership, specifying
the business agreed to be carried on, the persons who
will actually carry on the business, the shares in which
the profits will be divided, and the several other
considerations which constitute such an organic
relationship. It is permissible to say that a partnership
agreement creates and defines the relation of
120
partnership and therefore identifies the firm. If that

conclusion be right, it is only a further step to hold that
each partnership agreement may constitute a distinct
and separate partnership and therefore distinct and
separate firm. That is not to say that a firm is a
corporate entity or enjoys a juristic personality in that
sense. The firm name is only a collective name for the
individual partners. But each partnership is a distinct
relationship. The partners may be different and yet the
nature of the business may be the same, the business
may be different and yet the partners may be the same.
An agreement between the partners to carry on a
business and share its profits may be followed by a
separate agreement between the same partners to carry
on another business and share the profits therein. The
intention may be to constitute two separate
partnerships and therefore two distinct firms. Or to
extend merely a partnership, originally constituted to
carry on one business, to the carrying on of another
business. It will all depend on the intention of the
partners. The intention of the partners will have to be
decided with reference to the terms of the agreement
and all the surrounding circumstances, including
evidence as to the interlacing or interlocking of
management, finance and other incidents of the
respective businesses.”
130. The aforesaid makes it clear that partners may be different
even though the business may be same, still it would constitute two
separate distinct partnership and therefore two distinct firms.
131. In Ritesh Agarwal and Another vs Securities and Exchange
Board of India and Others, (2008) 8 SCC 205, the Supreme Court
held:-
“A citizen of India has a right to carry on a profession

or business as envisaged by Article 19(1)(g) of the
Constitution of India. Any restriction imposed
thereupon must be made by reason of a law
121
contemplated under clause (6) thereof. In the absence

of any valid law operating in the field, there would not
be any source for imposing penalty. A right to carry on
trade is a constitutional right. By reason of the penalty
imposed, the Board inter alia has taken away the said
constitutional right for a period of ten years which, in
our opinion, is impermissible in law as the Regulations
were not attracted.”
132. The said principle is squarely applicable in the instant case. If
the appellants have violated the provisions of the Companies Act
they can be prosecuted there under but the respondent cannot invoke
the SEBI laws in this cavalier fashion which violates the appellants’
fundamental right to carry on business as envisaged under Article
19(1)(g) of the Constitution of India.
133. There is yet another aspect. The show cause notice was issued
on February 14, 2009 and August 26, 2009. The impugned order was
passed on January 10, 2018. It took SEBI nine long years to complete
the proceedings and the fault lay entirely on SEBI. The request of the
appellants to cross examine certain individuals whose statements
were relied upon by SEBI was rejected. This Tribunal on June 1,
2011 allowed the appeal and directed SEBI to allow cross
examination. SEBI did not do so and took the matter to the Supreme
Court and kept it pending for six years. The Supreme Court on
January, 2017 held that the stand of SEBI was incorrect and directed
122
that cross examination and inspection should be allowed to the
appellants.
134. During the pendency of the proceedings, the appellants were
carrying on their business and auditing listed companies to the
satisfaction of the shareholders and / or of the investors without any
blemish. Over the last decade, the appellants have adopted extensive
remedial measures as per SEC / PCAOB settlement orders. The
independent monitors appointed by SEC / PCAOB have certified that
remedial measures have been successfully implemented, meaning
thereby that the audit quality met with the requisite standards. Thus
looking from this angle also, the order of debarment was not the
appropriate choice.
135. Thus, considering the aforesaid we are of the view that the
order of WTM debarring the PW firms to audit listed company on the
ground of PW network or projecting it as a PW brand cannot be
sustained.
136. There is no doubt that there has been a professional lapse on the
part of the auditors in conducting the audit especially their failure to
seek direct confirmation from the Bank relating to Bank Balances
and fixed deposits. These lapses amounted to negligence. Action has
already been taken by ICAI against the auditors. Negligence is the

123
breach of duty caused by omission to do something which a
reasonable man is guided by these considerations to do something
which a prudent and reasonable man would not do so. Negligence
becomes actionable on account of a lapse or omission amounting to
negligence. In the concept of negligence amounting to an offence, the
element of mens rea must be shown to exist, but under Torts,
negligence becomes actionable on account of lapse or omission.
Once you breach your duty, negligence becomes actionable as there
has been a failure to attain that standard of care.
137. A professional such as an auditor comes under a category of
persons professing some special skill. Any task which is required to
be performed with a special skill would generally be undertaken to
be performed only if the person possesses the requisite skill for
performing that task. The only assurance which such professional can
give is, that he is possessed of the requisite skill in that branch of
profession which he is practicing and that he would be exercising his
skill with reasonable competence. This is what a person / Company
approaching the professional can expect.
138. Thus, a professional may be held negligent if he is not
possessed of the requisite skill which he professed to have possessed
or he did not exercise with reasonable competence. The standard to
be applied for judging whether the person charged has been negligent
124
or not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not necessary for that person to
possess the highest level of expertise in that branch which he
practices.
139. In the light of the aforesaid, the WTM found that for this
negligence, the auditors and the firms benefitted by way of charging
a fee amounting to Rs. 13,09,01,664/-. The WTM was of the opinion
that this wrongful gain was liable to be disgorged. We find that for
this professional lapse, there has been a breach of duty and failure to
maintain that standard of care. For this lapse / negligence, we are of
the opinion that the appellants were not justified to retain this
amount. In our opinion, the WTM was justified in disgorging the said
amount along with interest. The power was rightly exercised under
Section 11 and 11-B of the SEBI Act to persons who in some way
was associated with the securities market as well as under the
Companies Act.
140. For the reasons stated aforesaid, the order of the WTM of SEBI
debarring the PW firms as well as the two auditors from auditing
listed Companies cannot be sustained and is quashed. Directions to
listed Companies not to engage any audit firm forming part of PW
network is also quashed. Appeal No. 6 of 2018, Appeal No. 190 of
2018 and Appeal No. 191 of 2018 are allowed. The order of the
125
WTM disgorging the amount is sustained and consequently Appeal
No. 7 of 2018 is partly allowed. In the circumstances of case, parties
shall bear their own costs.
Sd/-
Justice Tarun Agarwala
Presiding Officer
Sd/-
Dr. C. K .G. Nair
Member
09.09.2019
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Before The Securities Appellate Tribunal Mumbai

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BEFORE THE SECURITIES APPELLATE TRIBUNAL

Order Reserved on: 04.04.2019

Date of Decision : 09.09.2019

Appeal No. 6 of 2018

1. Price Waterhouse & Co. now known as

2. Price Waterhouse & Co. now known as

3. M/s. Lovelock & Lewes, a partnership firm

4. M/s. Lovelock & Lewes now known as

5. Price Waterhouse, a partnership firm

6. Price Waterhouse now known as Price

7. Price Waterhouse & Co., a partnership firm

8. Price Waterhouse & Co. now known as Price

9. M/s. Dalal & Shah now known as Dalal &

10. M/s. Dalal & Shah now known as Dalal &

Securities and Exchange Board of India

Mr. Mukul Rohatgi, Senior Advocate with Mr. Janak Dwarkadas,

Securities and Exchange Board of India

Mr. Shyam Mehta, Senior Advocate with Mr. Zerick Dastur,

Securities and Exchange Board of India

Mr. Gaurav Joshi, Senior Advocate with Mr. R. Sudhinder,

Securities and Exchange Board of India

Mr. Mustafa Doctor, Senior Advocate with Mr. R. Sudhinder,

CORAM : Justice Tarun Agarwala, Presiding Officer

Per : Justice Tarun Agarwala, Presiding Officer

1. In this group of appeals, the appellants have questioned the

legality and veracity of the impugned order passed by the Whole

Time Member (hereinafter referred to as, ‘WTM’) of Securities and

Exchange Board of India (hereinafter referred to as, ‘SEBI’) under

Sections 11 and 11B of the Securities and Exchange Board of India

Act, 1992 (hereinafter referred to as, ‘SEBI Act’) which empowers

SEBI to issue directions in the nature of remedies in the interest of

the securities market and investors in securities.

2. The WTM held that:-

(i) Entities / firms practicing as Chartered Accountant (CA)

in India under the brand and banner of Price Waterhouse

(PW) shall not directly or indirectly issue any certificate

of audit of listed companies, compliance of obligations of

listed companies and intermediaries registered with SEBI

under the applicable laws for a period of two years.

(ii) Individual auditors, namely, S. Gopalakrishanan and

Srinivas Talluri, shall not issue an audit certificate or any

certificate of compliance with respect to a listed company

for a period of three years.

(iii) Gopalakrishanan, Talluri and M/s. Price Waterhouse

Bangalore shall jointly and severally disgorge the

wrongful gains of Rs. 13,09,01,664/- alongwith interest

@ 12% p.a. from January 7, 2009 till the date of payment.

(iv) Listed companies and intermediaries registered with SEBI

shall not engage any audit firm forming part of Price

Waterhouse network for issuing any certificate with

respect to compliance of statutory obligations which SEBI

is competent to administer and enforce, under various

laws for a period of two years.

3. Even though, separate appeals have been filed against a

decided together by a common order.

4. Appeal No. 6 of 2018 has been filed by Price Waterhouse &

banner “Price Waterhouse” (PW). Appeal No. 7 of 2018 has been

filed by Price Waterhouse, Bangalore. Appeal No. 190 of 2018 has