The baseless allegation of Insider Trading (?) in the acquisition of lands for Amaravati by the State Government, citing which Capital shifting was mooted fell flat on the chin in the AP High Court. Some snippets follow:
From Para 20, Setting the tone for the judgment, what is about to come!!!
20) Having regard to the magnitude of the vital issues and contentions raised by the prosecution and also the petitioners, as elaborately discussed supra, and particularly as the findings that may be recorded in this judgment in the given facts and circumstances of the case, would have far reaching consequences on all the sale transactions that have already taken place and that may take place in future, I have given my earnest, anxious and thoughtful consideration to the aforementioned rival contentions raised by both the parties.
Intro: A criminal angle fished out (manufactured) from a purely civil land sale purchase transaction… age old trick of fraudsters-in-power…
22) This is a very peculiar and very interesting case and in fact a case of first of its kind where the prosecution seeks to criminalize private sale transactions entered into between the petitioners as buyers of the land and the sellers of the land long back about six years ago by invoking the concept/theory of offence of insider trading applying the same relatively to the facts of the case, primarily on the ground that the petitioners as
buyers of the land did not disclose to the owners of the land that the capital city is going to be located in the said area and thereby concealed the said material fact and cheated the owners of the land and on the ground that as the location of the capital was officially declared subsequently that there is a phenomenal increase in the value of the land and the owners of the land sustained loss on account of concealment of the said fact.
Key Point-1: Locus Standi Of The De Facto Complainant To Lodge Report With The Police
Basing on A.R. Antulay v. Ramdas Sriniwas Nayak and Ors., Court held as follows (from Paras 29 and 30):
29) So, in view of the law enunciated in the aforesaid judgments, the contention of the petitioners that the de facto complainant has no locus standi to initiate criminal prosecution by way of lodging a report with the police has no merit and it is liable to be rejected. The cavil is answered accordingly in favour of the prosecution.
30) However, though the plea relating to locus standi raised by the petitioners is not legally sustainable, justification on the part of the stranger to the alleged sale transactions in question, who is the de facto complainant, in lodging a report with the police initiating criminal prosecution against the
petitioners and that too after lapse of six years and its genuineness is certainly a relevant factor which requires consideration and the same will be adverted to at the appropriate time while dealing with the same during the course of discussion of this judgment.
Key Point-2: Concept Of Insider Trading And Its Application To The Facts Of The Case:-
From Para 31,
31) Ferreting out the origin and history of the offence of insider trading reveal that basically the offence of insider trading relates to trading of a public company’s stock or other securities (such as bonds or stock options) based on material, nonpublic information about the company. In various countries, some kinds of trading based on insider information is illegal, because it is seen as unfair to other investors who do not have access to the information, as the investor with insider information could potentially make larger profits than a typical investor could make. The study on the subject reveals that the rules governing the offence of insider trading are complex and vary significantly from country to country. The extent of enforcement also varies from one country to another. Trading by specific insiders, such as employees, is commonly permitted as long as it does not rely on material information not in the public domain. Rules prohibiting or criminalizing insider trading on material nonpublic information exist in most jurisdictions around the world, but the details and the efforts to enforce them vary considerably. In the United States, Sections 16(b) and 10(b) of the Securities Exchange Act, 1934 directly and indirectly address insider trading. The United States Congress enacted this law after the stock market crashed in 1929.
Finally, from Paras 38 and 39,
38) When the said concept of offence of insider trading is not made applicable to purchase of any immovable property like lands of private individuals and when the same is only confined to purchase of securities and bonds under the SEBI Act, the same cannot be even contextually or relatively applied or invoked to criminalize the private sale transactions relating to purchase of a land which is an immovable property in the guise of the offence of insider trading. The provisions of Sections 12-A and 15-G of the SEBI Act or any of its provisions cannot be read into and imported into the provisions of the IPC much less into Section 420 of IPC. It is not at all the intention of the Parliament to attribute any criminal liability to such private sale transactions of immovable property either under Section 420 IPC or under any provisions in the scheme of I.P.C. Therefore, this Court has absolutely no hesitation to hold that the said concept/theory of the offence of insider trading which is essentially an offence dealing with illegal sale of securities and bonds of the company cannot be applied to the private sale transactions relating to sale and purchase of lands to criminalize the said transactions under any of the provisions of the IPC much less under Section 420 of IPC. It is legally impermissible to prosecute the petitioners for the offences under Sections 420, 406, 409 and 120-B of IPC by applying the said concept of insider trading and in the guise of the said concept of insider trading.
39) Learned Advocate General would contend that the said concept of the offence of insider trading is to be relatively applied to the present facts of the case as the present facts of the case are somewhat akin to the said offence of insider trading as envisaged under the SEBI Act. By the said argument, obviously, the idea that is sought to be conveyed by the learned Advocate General is that as the allegations in the F.I.R. show that the petitioners obtained prior information from the higher officials in the Government and political leaders regarding exact location of the capital and thereby purchased the lands in the said area based on the said information, that the facts of the case constitute an offence akin to insider trading in purchasing the said lands. This Court is unable accede the said contention. It is elaborately discussed supra, while dealing with the concept of offence of insider trading and found that the said offence of insider trading essentially deals with only sale and purchase of securities and bonds based on non-public material information under the special enactment with the object of protecting the capital market and to instill investors’ confidence in the capital market. Therefore, when it is only confined to the sale and purchase of securities and bonds in the field of capital market, as already held supra, the same cannot be read into the provisions of IPC much less into Section 420 IPC. Parliament never intended to make private sale transactions relating to landed property an offence by applying the concept of insider trading or to bring the same within the purview of the said concept of insider trading. Therefore, the said contention holds no water.
Key Point-3: Right To Acquire Property Is A Constitutional Right And A Legal Right:-
From Para 40,
40) Earlier Article 19(1)(f) and Article 31 of the Constitution of India are part of Chapter III of the Constitution dealing with fundamental rights of a citizen. Article 19(1)(f) guaranteed to the Indian citizen a right to acquire, hold and dispose of property. Article 31 provided that “no person shall be
deprived of his property save by authority of law”. Therefore, in view of Article 19(1)(f) and Article 31 of the Constitution, right to property was part of fundamental right of a citizen. Subsequently, by 44th constitutional amendment both Article 19(1)(f) and Article 31 were repealed with effect from 20.06.1979. So, the right to property ceased to be a fundamental right. However, the right to acquire property continues to be a constitutional right, legal right and also a human right. Provision akin to Article 31 has been incorporated under Article 300-A in Chapter-IV of the Constitution under the rubric “right to property”.
Finally, from Paras 44 and 45,
44) From the aforesaid exposition of law, it is now abundantly made clear that a citizen has a legal and constitutional right to acquire and hold property. The said right of an individual to hold a property apart from being a legal right, has also been held to be a human right.
45) Since the prosecution seeks to criminalize the private sale transactions validly entered into by the petitioners as buyers with their sellers for a valid sale consideration under valid registered sale deeds by which they acquired the landed property in question, the aforesaid right of the petitioners as citizens of the country to acquire property as part of their constitutional right, legal right, and human right assumes significance in this context. Therefore, for that limited purpose, the aforesaid legal position has been dealt with in this case.
Key Point-4: One after the other, each section laid on the petitioners is dismantled by the division bench… Chief Justice started to realize this is a motivated case…. or there is a strong possibility of it…
From Paras 92 and 93,
92) Thus, in the light of the above legal position, viewed from any angle, even if the petitioners really got any information regarding location of the capital in the said area where the lands are purchased, the mere non-disclosure of the said information to the sellers at the time of purchasing the said lands cannot be construed as a dishonest concealment of fact for the purpose of fastening criminal liability to the petitioners for the offence under Section 420 IPC.
93) Another significant fact needs to be noticed is that the sale transactions relate to sale of land that took place long back about six years ago in the year 2014. The owners of the land, who sold their lands, had absolutely no demur whatsoever from any quarter for all this length of time in respect of sale of the said lands. They never expressed any grievance at any point of time earlier that they have been cheated by the petitioners by suppressing the fact that the capital city is going to be located in their area at the time of selling the lands. They did never raise their finger in this regard for all this length of time even after notifying the location of the capital city. Now, abruptly when some stranger lodged a report with the police who had nothing to do with the sale transactions, the sellers allegedly came up with the above said version before the police that they have been cheated by the petitioners by not informing them that the capital is going to come in their area at the time of selling their lands. So, in the said circumstances, the credibility and authenticity of the said belated version now introduced is really at stake. Therefore, the prosecution version now introduced by way of the said statements of the sellers would certainly be incredulous. If really they got grievance in this regard, they would have initiated both civil and criminal action in this regard long back when location of the capital city was notified on 30.12.2014 itself about six years back. They did not initiate any civil action to declare the sale as void on the ground of fraud or deception or on the ground of suppression of material fact. They also did not launch any criminal prosecution based on the above grounds. Therefore, the above belated version now introduced by the prosecution by way of alleged statements of sellers is far from truth. In view of the said reasons, it throws any amount of doubt on the justification of the de facto complainant who is a stranger to the said sale transactions in lodging the present report. Therefore, in the said circumstances, the contention of the petitioners that there are vested interests behind the de facto complainant who engineered the preparation of the said report lodged by him with a concocted story to illegally prosecute the petitioners cannot be completely ruled out.
Key Point-5: Recitals Of The Sale Deed Belie The Version Of The Sellers:
From Paras 95, 96, 97 and 98,
95) While the facts of the prosecution case as projected and the submissions made on behalf of the prosecution as discussed supra do not find favour to attract any offence under Section 420 IPC, in the light of the above discussion, even the factual aspects emanating from the record also do not support the case of the prosecution. A meticulous perusal of the recitals of the registered sale deeds executed by the sellers in favour of the petitioners selling their lands to them clearly proves that it is not the petitioners as buyers who have approached the sellers to sell the property to them. The recitals of the sale deed show that it is the sellers who offered to sell their lands to the petitioners to meet their legal necessities.
96) The contents of the sale deeds show that as lands are not found to be profitable to the vendors and as they are in dire necessity of money either for the purpose of meeting their family expenses or to discharge their debts that the owners have decided to sell away their lands and thereby offered to sell the lands to the petitioners and the petitioners have accepted their offer and sale consideration to a tune of lakhs of rupees was arrived at by consensus between both of them and on receipt of the said sale consideration that the sale deeds have been registered by the owners of the lands in favour of the petitioners. Therefore, it is now evident that the petitioners did not approach the owners of the land with a request to sell the lands to them so as to believe or say that the petitioners have induced them to sell the lands by suppressing the fact that the capital is going to be located in the said area. Therefore, the recitals in the sale deeds completely belies the version of the prosecution that the petitioners induced the sellers to sell the land by offering high value of sale price and by suppressing the fact that the capital is going to be located in that area. Recitals of the sale deeds clinchingly establishes that the offer to sell the lands was made by the owners/sellers of the land and the petitioners accepted the said offer and purchased the said lands. When that be the case, the question of informing the owners of the lands by the petitioners that the capital is going to be located in the said area completely loses its significance and the same does not arise at all. So, the evidence in the form of recitals of the sale deeds completely negate the contention of the prosecution. There is absolutely no dispute regarding the fact that the sale deeds contain the said recitals that the owners have offered to sell the lands to the petitioners to meet their legal necessities. In fact, in the last column of the table appended to the written submissions made by the learned Public Prosecutor, the prosecution itself elicited the said recitals in the sale deeds showing that for the purpose of meeting the family necessities of the owners of the said lands, they have sold the same to the petitioners, both in Telugu and in the translated version in English. So, these recitals absolutely clinch the issue and prove that there is no truth in the version of the prosecution that the petitioners approached the owners of the lands with a request to sell the lands by suppressing the said material fact.
97) The submission of the learned Advocate General that recitals in all the sale deeds are stereo type recitals and they are usual recitals which find mention in the sale deeds and as such they cannot be considered to disbelieve the present version of the sellers is devoid of any merit and the same cannot be countenanced. Accepting the said contention amounts to distortion of true facts borne out by record and would also result into travesty of truth. It would also be taking an erroneous view contrary to express recitals of the sale deeds which is not permissible under law.
98) No doubt, during the course of investigation it is shown that some of the owners of the lands, who sold their lands to the petitioners i.e. L.Ws.3 to 11 and 13 to 16 stated in their statements before the police given under Section 161 Cr.P.C. that one Srinivas, who is the broker/mediator, approached him on behalf of the petitioners to sell the lands and when they initially rejected his request to sell the lands, that subsequently, he convinced them by offering high sale price and that the owners have sold their lands after accepting the said sale price and that at that time the owners do not know that the capital is going to be located in the said area and subsequently they came to know that the Government notified their area as the capital region and that the petitioners without disclosing the said fact to them have purchased their lands and on account of increase in the value of the lands, thereafter, that they are put to loss and they are and they have been accordingly cheated. The recitals of the sale deeds completely belie the said version given by L.Ws.3 to 11 and 13 to 16 in their 161 Cr.P.C. statements. As already discussed supra, their own unequivocal declaration made in the sale deeds show that they voluntarily offered to sell their lands to the petitioners to meet their legal necessities and family necessities. Therefore, they are now estopped from contending contrary to their own declaration made in the form of recitals in the registered sale deeds which are admittedly signed by them before the competent registering authority. So, there cannot be any truth in the subsequent version given by them before the police that some real estate broker approached them on behalf of the petitioners and requested them to sell their lands and that there is suppression of material fact in the said process.
Key Point-6: Information Relating To Location Of Capital Is Very Much In Public Domain:-
From Paras 99 to 107
99) Be that as it may, even the version of the prosecution that the proposal of the Government to locate capital city in the area between the Krishna District and the Guntur District by the side of the Krishna river and adjacent to the highway is not known to the sellers of the land and the petitioners
clandestinely obtained the said information from the top officials and the political leaders in the then government unauthorisedly and thereby purchased the lands on the basis of the said information without disclosing the said fact to the owners of the land is far from truth. The material placed before this Court by the petitioners in the form of paper publications completely belies the said version. It is noticed supra that the ppointed day for formation of the residuary State of Andhra Pradesh under the A.P. Reorganisation Act, 2014, is 02.06.2014. The new Government for the said State was formed after General Assembly Elections on 09.06.2014. The Chief Minister sworn in on 09.06.2014. These facts are incontrovertible facts. Immediately after the swearing-inceremony, the then Chief Minister declared publicly that the capital city is going to come within the Krishna District and the Guntur District by the side of the Krishna river. This news has been widely published in all the widely circulated Telugu and English newspapers. On 10.06.2014 it was published in English newspaper with the headlines “AP capital near Guntur, Naidu says he wants capital between Guntur and Vijayawada”. The news reads as under:
“It is official. The new capital of Andhra Pradesh will come up between Vijayawada and Guntur. Andhra Pradesh Chief Minister N. Chandrababu Naidu announced this on Monday (i.e. on 09.06.2014).
Speaking to the media at his residence, Mr.Naidu said that if the capital comes up between Vijayawada and Guntur it will develop like Hyderabad city.”
100) In Andhra Jyothi, Telugu daily newspaper, it was published on 10.06.2014 that the new capital will be between Vijayawada and Guntur as it is geographically in centre. It is stated in the news that it was clarified by the Chief Minister of newly formed Andhra Pradesh Nara Chandrababu Naidu that the new capital will be between Vijayawada and Guntur as they are geographically centrally located in Seemandhra. So, inclined to form capital at that place.
101) In Eenadu, Telugu daily newspaper, which is another widely circulated local news paper, it was published on 02.07.2014 that the Andhra Pradesh Government is contemplating to establish the new capital for the State would be established by the side of Krishna river, making Amaravati as main centre and that the Government is also contemplating to construct big flyover bridges connecting all the areas in the capital region. It has been stated in the said news that the capital is to be developed on both sides of river Krishna to be linked with heavy bridges and the State Government is working
out on the collection of details of Government lands in the said area. In Times of India, English newspaper, also it was published on 02.07.20214 with the headline “AP capital in Amaravati? “Low land prices swing it in favour of ancient Satavahana Town”. The news published in the said newspaper
reads as follows:
“The new capital city of Andhra Pradesh will be built around the ancient town of Amaravti.”
102) Again on 23.07.2014 a news was published in Sakshi, Telugu daily newspaper, which is another widely circulated newspaper in the State, with the caption “Capital will be in between Krishna and Guntur and it is the suitable place for building capital city said by Chairman of Advisory Committee Narayana. It has been published in the said news that the Advisory Committee Chairman and the Minister for Municipal Administration Dr.P.Narayana, informed that they met Sri Sivaramakrishnan in Delhi and apprised him that the area between Krishna and Guntur Districts would be suitable for building new capital city in the State as it would be in equal distance to North Coastal Districts and Rayalaseema Districts apart from having water sources, airport, rail and road facilities etc. The photograph showing the Advisory Committee Chairman and Kambhampati Rammohan Rao talking to Sri Sivaramakrishnan was also published.
103) Again in Eenadu, Telugu daily newspaper, a news was published on 24.09.2014 stating that the capital city would be on ring road and it may be anywhere throughout the length of 184 K.Ms as the farmers are now coming forward and that 30,000 acres are necessary and the aerial photograph of Putrajaya Nagara was also published in the newspaper. On 05.09.2014 it was published in Economic Times, which is a English daily newspaper, with the caption “Andhra Pradesh’s new capital will be in Vijayawada region announces CM N.Chandrababu Naidu”. The news reads that putting an end to months of speculation over the issue even as some ambiguity remained on the exact location, Chief Minister N. Chandrababu Naidu announced in the State Assembly on Thursday that the new capital of Andhra Pradesh will be located in Vijaywada region. On 26.10.2014 it was published in Andhra Jyothi, Telugu daily newspaper, that the capital city will be located within the purview of Tulluru Mandal and 14 villages in the said Mandal are identified and in the first spell 30,000 acres of land is going to be acquired from the farmers under Land Pooling Scheme. On 30.10.2014 The Economic Times published the news that the Andhra Pradesh will have a “riverfront” capital on the south side of river Krishna as the State Government ended months of suspense and speculation today by announcing that 17 villages in the existing Guntur District would be developed
as new capital city. It is also stated that it is for the first time that the Telugu Desam Party lead government had come out with a clear location of the new capital as it had so far been saying it would come within Vijayawada region. Most importantly it is to be noted that the names of the proposed
villages that would form part of the new capital area are published in the above news paper stating that Neerukonda, Kurugallu and Nidamarru in Mangalagiri Mandal; Borupalem, Tulluru, Nelapadu, Nekkallu, Sakhamuru, Mandadam, Malkapuram, Velagapudi, Mudalingayapalem, Uddandarayapalem, Lingayapalem, Rayapudi, Apparajupalem and Dondapadu in Tulluru Mandal would form part of capital area.
104) In Deccan Chronicle, English daily newspaper, it was published on 31.10.2014, stating that in tune with the dream of Chief Minister N. Chandrababu Naidu of building a “riverfront capital”, the Cabinet sub-committee, on land pooling, met here on Thursday, identified 17 villages – 14 in Tulluru Mandal and three in Mangalagiri of Guntur District and most of the villages that will be formed part of the A.P. capital on the banks of the
river Krishna. Learned counsel for the petitioners submit that same news has been widely announced in T.V. channels also. But, they did not produce evidence to that effect.
105) The prosecution did not deny publication of the above news relating to the proposal of the Government to locate the capital city by the side of Krishna river between the Krishna District and the Guntur District in newspapers. So, publication of the aforesaid news is again an incontrovertible fact. Therefore, the above news which was widely published both in Telugu and English widely circulated newspapers in the State of Andhra Pradesh, clearly establishes that the information relating to the proposal of the Government to locate the capital in the said area is very much in the public domain right from June, 2014 when the present State of Andhra Pradesh was formed with effect from 02.06.2014. The above news also bears ample testimony of the fact that there is wide spread speculation and anticipation among the people in the public circle that the capital city is going to be located between the Krishna and Guntur Districts by the side of Krishna river and by the side of the highway. When that be the fact, it cannot be said that the said information is only within the exclusive knowledge of the concerned top government officials and political leaders and it is a non-public information as has been contended by the learned Advocate General. In fact, the said information relating to location of the capital area at a particular region is very much in the public domain as it was announced by no less than a responsible authority like the very Chief Minister of the State immediately on the date of his swearing-in-ceremony itself i.e. on 09.06.2014 which was published in the newspapers on 10.06.2014. Therefore, it cannot be said that the petitioners have secured the information unauthorisedly from the top government officials and political leaders regarding the area where the capital would be located. It cannot also be said that the sellers are not aware of the said fact or information. In fact, it is an information known to the whole world on account of wide publicity given to the said news in the newspapers. So, not only the petitioners, even the
owners of the land are aware of the said information relating to the proposal of the government to locate the capital city in the said area. Therefore, the sellers of the land cannot now plead ignorance of the said information that the capital is going to be located in their area and contend that the said information was suppressed and not disclosed to them at the time of selling the lands and as such they sustained loss. At the cost of repetition
it is to be held that the said information is very much in the public domain and the whole world knows about the same. The evidence in the form of the aforesaid wide publication in the newspapers bespeaks to that effect.
106) As per the submissions made by the learned Advocate General, the Cabinet took decision regarding location of capital on 01.09.2014 and it was announced in the Legislative Assembly on 02.09.2014. Therefore, on account of announcement of the said information relating to the area where the capital would be located in the Legislative Assembly, the said news is again in public domain.
107) So, when the said information is very much in the public domain and when even the sellers are aware of the same, it cannot be legitimately contended that there has been concealment of material fact dishonestly as required under Explanation appended to Section 415 IPC to attribute any
criminal liability of deception to the petitioners. In fact the plan submitted by the Investigating Officer along with the C.D. file show that not only the petitioners, but there are several other people who have purchased lands in and around the proposed capital region. Probably on account of the information that is available to them in the public domain, which is published in newspapers, all of them have purchased lands in the said area. As the right to acquire and own property is a constitutional right, legal right and human right, none can find fault with the said buyers in purchasing the lands as any citizen is entitled to acquire lands in exercise of their constitutional and legal right. So, no criminal liability can be fastened to the petitioners or any persons who purchased lands in the proposed capital region to prosecute them for any offence under criminal law. Therefore, no offence under Section 420 IPC is made out or constituted from the facts of the case.
Key Point-7: Applicability Of Sections 406 And 409 Of Ipc To The Facts Of The Case:
From Para 111,
111) So, the predominant requirement which is essential to attract the offence under Section 409 IPC is that the accused must be a public servant or a banker or a merchant or an agent and the property is to be entrusted to him in any one of the above capacities and while holding domain over the said property in his capacity as a public servant, banker, merchant or agent, broker or attorney, if he commits any criminal breach of trust in respect of the said property, it is said that an offence under Section 409 IPC is committed. Therefore, the prosecution has to necessarily establish that the accused is a public servant or a banker or an agent and that the property was entrusted to him in the said capacity and he has committed any criminal breach of trust in respect of the said property. Admittedly, it is not at all the case of the prosecution that the petitioners are public servants or bankers or merchants or agents and that any property was entrusted to them in any such capacity and that they have committed any criminal breach of trust in respect of the said property. Therefore, the necessary ingredients contemplated under law which are required to establish the said offence under Section 409 IPC are totally lacking in this case. Therefore, no offence whatsoever is constituted against the petitioners from the contents of the F.I.R. or from the material collected during the course of investigation against the petitioners under Section 409 IPC. Ergo, Section 409 of IPC is also wholly inapplicable to the facts of the case.
Key Point-8: Offence Under Section 120-B of IPC:
From Para 119,
119) In fact, criminalizing any such private sale transactions and prosecuting the buyers of the land in the given facts and circumstances of the case on the premise of concealment of a fact even if true and on the ground that there has been loss to the sellers of the land in view of the subsequent increase in the value of the lands would create a very dangerous trend in the field of criminal law and it would open the flood gates of the criminal prosecution, as every vendor/seller of lands, who sold away their lands may subsequently make an attempt to prosecute every buyer of the land whenever there is phenomenal increase in the value of the lands subsequently. Law does not permit such criminal prosecution of the buyer of the land on the said ground. Undoubtedly, it is a sort of speculative criminal prosecution that was launched by the State against the petitioners in this case, which is not permissible under law. Therefore, it is undoubtedly an attempt by the prosecution to fire a blind shot in a dark room to prosecute these petitioners in the above facts and circumstances of the case.
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