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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 ..... ned National Company Law Tribunal (NCLT), Guwahati Bench by its order dated 28-08-2019. 4. A meeting of the Committee of Creditors (COC) was scheduled to be held on 11-02- 2020. All the resolution applicants including the Panna Pragati Infrastructure Pvt. Ltd. (in short "PPIPL") were advised by the notice dated 06-02-2020 about the agenda of the COC meeting to be held on 11-02-2020. Since the agenda item could not be completed, the COC decided to adjourn the meeting to next day and accordingly, it was decided that the meeting would be held on the next day, i.e., 12-02-20 at 10.30 am at the same place. The resolution applicant Mr. N. Dhar increased his bid amount from Rs. 54 crores to Rs. 54.3 crores + CIRP cost on 12-02-2020 and its plan was approved by 100% voting in the COC meeting on 12-02- 2020. Despite being aware that the resolution plan had to be finalized and negotiations were to be carried out, the PPIPL remained absent on the meeting held on 12.02.2020. 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 margina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion plan before the committee of the creditors for their approval colluded with the other bidders to illegally finalized the resolution plan/bid forwarded by other bidders at a lower price. It was also alleged that the informant came to know that the petitioner has been paid by the other bidders in order to get their bids finalized and approved. It was alleged in the FIR that action of the petitioner amounted to dishonest misappropriation and conversion of the assets and properties of M/S Meghalaya Infratech Pvt. Ltd. for its own purpose in violation of the provision of law, and as such, the act of the petitioner amounted to criminal breach of trust and cheating. 7. Learned counsel for the petitioner Mr. D. Das referring to various provisions, viz., Section 217, 233, 236 of the Insolvency and Bankruptcy Code, 2016 as well as Section 3 of the Insolvency and Bankruptcy Board of India (Grievance and complaint handling proceeding) Regulation, 2017, submits, 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. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilt" or "innocence" of the person charged with a crime. "Civil suit" refers to a civil action instituted before a court of law for realization of a right vested in a party by law. 29. The phrase "legal proceeding" connotes a term which means the proceedings in a court of justice to get a remedy which the law permits to the person aggrieved. It includes any formal steps or measures employed therein." 15. Further contention of Mr. Baruah is that "good faith" is a question of fact, which is to be decided on the basis of the facts and circumstances case during the trial and the FIR or the criminal proceeding cannot be quashed at the initial stage on the ground, that the accused has done the act in "good faith". 16. Placing reliance on the decision of the Apex Court in Municipal Corporation of Greater Mumbai Vs. Abhilash Lal and Ors., reported in MANU/SC/1580/2019 and Macquarie Bank Ltd. Vs. Shilpi Cable Technologies Ltd, (2018) 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 gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take into account the material facts of the incident complained of before passing an order of granting sanction or else official duty would always be in peril even if performed bona fide and genuinely." 21. The law with regard to quashing of a criminal proceeding at the initial state is by now well settled by long line of decisions including the lead case in State of Haryana Vs. Bhajanlal, (1992) 1 Suppl. 1 SCC 335, wherein the Apex Court dealing with the principles and guidelines for quashing the criminal proceeding at the initial stage held in paragraph 102 as under : - "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r converted it to his own use ; (b) dishonestly used or disposed of the property or willfully induced any other person to do so in violation of the Code (iii) Any direction of law prescribing the mode in which the trust is to be discharged. (iv) by any legal contract made touching the discharge of such trust. 23. As already indicated above, admittedly the petitioner was appointed as resolution professional under the provision of Insolvency Code and he was discharging his duty under the provision of the said Code. The allegation against the petitioner was that the revised offer of resolution applicant, viz., the PPIPL was not considered or placed before the committee of the creditors and the committee of creditors approved the plan/bid of another resolution applicant, who was found to be the highest bidder. Admittedly the request of the respondent No. 2 for extension 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 26. In V.Y. Jose and Anr. Vs. State of Gujarat and Anr. (2009) 3 SCC 78 held that an offence of cheating cannot be said to have been made out unless the following ingredients are satisfied : "(i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit." 27. Evidently the petitioner was discharging his official 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 circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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