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TMI Blog2021 (1) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... t the NCLT directed the petitioner to resume the CIRP for taking a fresh decision by the committee of creditors regarding the resolution plan, and as such, there was no delivery of property. It is also evident from the record that on 14-02-2020 the e-mail was addressed by the PPIPL to all the members of the committee of the creditors regarding his revised offers and as such, there was also no question of deception by the petitioner. From the materials, it is apparent that though the revised offer of the PPIPL was not placed before the committee of the creditors, members of the committee of creditors were aware about the said offer, and as such, there was no question of deception or fraud practiced by the petitioner. The Hon'ble NCLT observed that the revised offer ought to have been placed before the committee. Such observation, per-se, can by no stretch of imagination be construed as motive or practicing fraud or deception on the part of the petitioner. Therefore, the ingredients to constitute an offence u/s 420 IPC is also absent in the FIR. Evidently the petitioner was discharging his official duty as per the direction of the NCLT under the provision of the Insolvency Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020. The PPIPL allegedly failed to meet the time line and also failed to submit final revised plan removing the defects therein and only submitted a revised offer and not a revised resolution plan on 14-02- 2020 with a marginal increase in its bid. However, the meeting of the COC supported the plan submitted by Mr. N. Dhar and all the creditors were aware about the revised offer submitted by PPIPL. The members of the COC were fully aware about the revised offer submitted by PPIPL on 14-02-2020, inasmuch as, copies of the same were sent through e-mail to all the members. It has been stated that being fully aware and with full knowledge of the revised offer of the PPIPL, the COC meeting approved the plan submitted by Mr. N. Dhar. The PPIPL filed an application against the resolution plan approved by the meeting of the COC praying for a direction to the CIRP to take on record and to consider the revised offer submitted by it through e-mail on 14-02-2020, which was rejected by the learned NCLT, Guwahati Bench by its order dated 18-03-2020. The NCLT by its order dated 18-05-2020 approved the resolution plan of Mr. N. Dhar (H1 bidder), which was approved by the meeting of the COC. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the prosecution against the petitioner was not maintainable, and as such, the FIR and the criminal proceeding deserves to be quashed. Mr. Das further submits that the FIR did not make out any offence u/s 420 or 406 IPC. 8. Per contra, Mr. D. Baruah, learned counsel for the respondent submits that the provision of Section 217, 233 and 236 of the Insolvency Code as well as the procedure provided in Regulation 2017 are not applicable in the instant case, inasmuch as, the said procedures relates to any offence committed under the Insolvency Code, whereas the offences in the instant case are under the provision of the Indian Penal Code. 9. Section 217 of the Insolvency Code, 2016 provides that any person aggrieved by the functioning of an insolvency agency or insolvency professional or insolvency utility may file an application before the board within a specific time and in such manner as may be specified. 10. Section 233 of the Insolvency Code provides that no suit prosecution or other legal proceeding shall lie against the Govt. or any officer of the Govt., or Chairman, member, officer or other employee of the board or an insolvency professional or liquidator, for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 2 SCC 674, Mr. D. Baruah, learned counsel for the respondent submits that the overriding effect of Section 238 of the Insolvency Code shall be applicable in a case of inconsistency. If the contention of the Insolvency Code and the other statute can be given effect simultaneously, overriding effect of Section 238 of the Insolvency Code shall not apply. 17. The Insolvency Code and Bankruptcy Grievance and Handling Procedure Regulation, 2017, lays down the procedure for lodging complaint and disposal of complaint under the Insolvency Code. Chapter VII of the Insolvency Code lays down the offence and penalties under the Code. 18. From a plain reading of Section 236 of the Insolvency Code, it appears that the restriction of Section 236 is applicable only in case of offence punishable under the Insolvency Code. However, the provision of Section 233 of the Insolvency Code, which provides immunity from any suit, prosecution or other legal proceeding for anything done under the Insolvency Code or the rules or regulations made thereunder cannot be said to be restricted only to the offence committed under the Insolvency Code. 19. As per the allegations made in the FIR, the act attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (i) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (ii) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (iii) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of time and the revised offer was rejected by the committee of creditors and the petition filed by the PPIPL to direct the petitioner to consider the revised offer of the respondent was also turned down by the learned NCLT, Guwahati Bench. 25. The resolution adopted by the committee of creditors accepting the plan of the resolution applicant N. Dhar was also approved by the NCLT, Guwahati Bench, by its order dated 18-05-2020 and the NCLT observed as under :- The COC has very well deliberated with the two plans and decided the viability, feasibility and financial matrix of each plans and approved one with 100% vote share of the members of the COC. Accordingly, I hereby approve the resolution plan of Mr. Ngaitlang Dghar (H-1 bidder) upon the following directions. 24. However, the NCLT, Delhi set aside the order of Guwahati Bench and remanded the matter for resuming the CIRP from the stage of consideration of the resolution plan. From all these facts and circumstances, it is apparent that the petitioner was acting as resolution professional as per direction of the NCLT and the decision to finalizing the resolution plan was taken by the committee of the creditors, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial duty as per the direction of the NCLT under the provision of the Insolvency Code and the respondent No. 2 after exhausting all other forums to ventilate his grievance lodged the FIR only when a favorable order was passed by the NCLT. Therefore, the lodging of the FIR after exploring all the avenues and the facts and circumstances of the present case, as discussed hereinbefore, the FIR or the criminal proceeding appears to be attended mainly with the ulterior motive of wrecking vengeance on the accused petitioner, and the present case is covered by clauses (i) (ii) (iii) and (vii) of Bhajan Lal's case. 28. Thus, having regard to the facts and circumstances of the present case and also the scope of interference with the criminal proceeding at the threshold in exercise of inherent power, this court is of the considered view, that the FIR dated 27-10-2020 and the proceeding in Paltan Bazar P.S. Case No. 825/2020 registered u/d 406/420 IPC arising out of the said FIR deserves to be quashed to secure the ends of justice. Accordingly, the FIR dated 27-10-2020 and the consequential proceeding in Paltan Bazar P.S. Case No. 825/2020 registered u/d 406/420 IPC arising out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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