Section 23H. Penalty for contravention where no separate penalty has been provided

23H. Penalty for contravention where no separate penalty has been provided. —Whoever fails to comply with any provision of this Act, the rules or articles or bye-laws or the regulations of the recognised stock exchange or directions issued by the Securities and Exchange Board of India for which no separate penalty has been provided, shall be[1] [liable to a penalty which shall not be less than one lakh rupees but which may extend to one crore rupees]. 23-I. Power to adjudicate. —(1) For the purpose of adjudging under sections 23A, 23B, 23C, 23D, 23E, 23F, 23G and 23H, the Securities and Exchange Board of India[2] [may] appoint any officer not below the rank of a Division Chief of the Securities and Exchange Board of India to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty. (2) While holding an inquiry, the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document, which in the opinion of the adjudicating officer, may be useful for or relevant to the subject-matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub-section (1), he may impose such penalty as he thinks fit in accordance with the provisions of any of those sections. 3[(3) The Board may call for and examine the record of any proceedings under this section and if it considers that the order passed by the adjudicating officer is erroneous to the extent it is not in the interests of the securities market, it may, after making or causing to be made such inquiry as it deems necessary, pass an order enhancing the quantum of penalty, if the circumstances of the case so justify: Provided that no such order shall be passed unless the person concerned has been given an opportunity of being heard in the matter: Provided further that nothing contained in this sub-section shall be applicable after an expiry of a period of three months from the date of the order passed by the adjudicating officer or disposal of the appeal under section 23L, whichever is earlier.] 23J.[4] [Factors to be taken into account while adjudging quantum of penalty.] —While adjudging the quantum of penalty under[5] [section 12A or section 23-I],[6] [the Securities and Exchange Board of India or the adjudicating officer] shall have due regard to the following factors, namely:— (a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default; (b) the amount of loss caused to an investor or group of investors as a result of the default; (c) the repetitive nature of the default. 7[ Explanation .—For the removal of doubts, it is clarified that the power of an adjudicating officer to adjudge the quantum of penalty under sections 23A to 23C shall be and shall always be deemed to have exercised under the provisions of this section.] 8[23JA. Settlement of administrative and civil proceedings. —(1) Notwithstanding anything contained in any other law for the time being in force, any person, against whom any proceedings have been initiated or may be initiated under section 12A or section 23-1, may file an application in writing to the Board proposing for settlement of the proceedings initiated or to be initiated for the alleged defaults. 1. Subs. by Act 27 of 2014, s. 32, for "liable to a penalty not which may extend to one crore rupees" (w.e.f. 8-9-2014). 2. Subs. by Act 13 of 2018, s. 153, for "shall" (w.e.f. 8-3-2019). 3. Ins. by Act 27 of 2014, s. 33 (w.e.f. 8-9-2014). 4. Subs. by Act 13 of 2018, s. 154, for "Factors to be taken into account by the adjudicating officer" (w.e.f. 8-3-2019). 5. Subs. by s. 154, ibid ., for "section 23-I" (w.e.f. 8-3-2019). 6. Subs. by s. 154, ibid., for "the adjudicating officer" (w.e.f. 8-3-2019). 7. Ins.by Act 7 of 2017, s. 138 (w.e.f. 31-5-2017). 8. Ins. by Act 27 of 2014, s. 34 (w.e.f. 20-4-2007). (2) The Board may, after taking into consideration the nature, gravity and impact of defaults, agree, to the proposal for settlement, on payment of such sum by the defaulter or on such other terms as may be determined by the Board in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992). (3) For the purposes of settlement under this section, the procedure as specified by the Board under the Securities and Exchange Board of India Act, 1992 (15 of 1992) shall apply. (4) No appeal shall lie under section 23L against any order passed by the Board or the adjudicating officer, as the case may be, under this section.] 1[(5) All settlement amounts, excluding the disgorgement amount and legal costs, realised under this Act shall be credited to the Consolidated Fund of India.] 2[23JB. Recovery of amounts. —(1) If a person fails to pay the penalty imposed 3[under this Act] or fails to comply with a direction of disgorgement order issued under section 12A or fails to pay any fees due to the Board, the Recovery Officer may draw up under his signature a statement in the specified form specifying the amount due from the person (such statement being hereafter in this Chapter referred to as certificate) and shall proceed to recover from such person the amount specified in the certificate by one or more of the following modes, namely:— - (a) attachment and sale of the person's movable property; - (b) attachment of the person's bank accounts; - (c) attachment and sale of the person's immovable property; - (d) arrest of the person and his detention in prison; - (e) appointing a receiver for the management of the person's movable and immovable properties, and for this purpose, the provisions of sections 220 to 227, 228A, 229, 232, the Second and Third Schedules to the Income-tax Act, 1961 (43 of 1961) and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time, in so far as may be, apply with necessary modifications as if the said provisions and the rules thereunder were the provisions of this Act and referred to the amount due under this Act instead of to income-tax under the Income-tax Act, 1961. Explanation 1.—For the purposes of this sub-section, the person's movable or immovable property or monies held in bank accounts shall include any property or monies held in bank accounts which has been transferred, directly or indirectly on or after the date when the amount specified in certificate had become due, by the person to his spouse or minor child or son's wife or son's minor child, otherwise than for adequate consideration, and which is held by, or stands in the name of, any of the persons aforesaid; and so far as the movable or immovable property or monies held in bank accounts so transferred to his minor child or his son's minor child is concerned, it shall, even after the date of attainment of majority by such minor child or son's minor child, as the case may be, continue to be included in the person's movable or immovable property or monies held in bank accounts for recovering any amount due from the person under this Act. Explanation 2.—Any reference under the provisions of the Second and Third Schedules to the Incometax Act, 1961 (43 of 1961) and the Income-tax (Certificate Proceedings) Rules, 1962 to the assessee shall be construed as a reference to the person specified in the certificate. Explanation 3.—Any reference to appeal in Chapter XVIID and the Second Schedule to the Income-tax Act, 1961 (43 of 1961), shall be construed as a reference to appeal before the Securities Appellate Tribunal under section 23L of this Act. (2) The Recovery Officer shall be empowered to seek the assistance of the local district administration while exercising the powers under sub-section (1). 1. Ins. by Act 13 of 2018, s. 155 (w.e.f. 8-3-2019). 2. Ins. by Act 27 of 2014, s. 35 (w.e.f. 8-9-2014). 3. Subs. by Act 13 of 2018, s. 156, for "by the adjudicating officer" (w.e.f. 8-3-2019). (3) Notwithstanding anything contained in any other law for the time being in force, the recovery of amounts by a Recovery Officer under sub-section (1), pursuant to non-compliance with any direction issued by the Board under section 12A, shall have precedence over any other claim against such person. (4) For the purposes of sub-sections (1), (2) and (3), the expression "Recovery Officer" means any officer of the Board who may be authorised, by general or special order in writing to exercise the powers of a Recovery Officer.]