Case Law Details
Arun Mohan Vs Central Bureau Of Investigation (Delhi High Court)
HC Quashes CBI FIR in Corruption Case: IRP Not Public Servant Under Section 7
HC quashed CBI FIR u/s 7 of Prevention of Corruption Act as IRP was not a Public Servant
Conclusion: First Investigation Report (FIR) lodged against and determined that an Insolvency Resolution Professional(IRP) did not fall under the definition of a “public servant” as outlined in Section 2(c) of the Prevention of Corruption Act, 1988 as the omission to include IP in section 232 IBC was not inadvertent but a thoughtful, willful and deliberate one by the Legislature, and the Courts of law being empowered to interpret the same, ought not to legislate or supply casus omissus, which in any case was prohibited.
Held: Assessee was approached by Financial Creditor of FR Tech Innovations Private Limited (CD) for proposing the name of assessee as IRP in the company petition to be filed by the Financial Creditor under Section 7 of IBC, 2016 in the NCLT, Mumbai Bench by the FR Tech Innovations Private Limited. Assessee consented to act as an IRP of CD as proposed by Financial Creditor on inter se negotiated terms and conditions in a specified format Form 2. Assessee received eight claims in total for an amount of Rs. 2,12,08,445/- from the claimants/creditors under various categories till 13.12.2019 being last date for submission of claims. Assessee in his capacity as IRP collated and verified the claims received by him from Creditors/Claimants under various categories including the claim of Mrs. Namrata Bugalia, wife of the complainant in the above said RC case. Mrs. Namrata Bugalia, wife of the complainant, allegedly submitted the forged and fabricated documents in support of her claim including a copy of the unstamped acknowledgement and inventions agreement dated 06.03.2017 shown to have been executed on 03.03.2017, which according to assessee seems to be a forged and fabricated document. That instead of responding to the Demand Notice dated 07.01.2020 and to pre-empt any legal action against his wife, the complainant filed a false and fabricated complaint against assessee with SP, CBI, Delhi under PC Act. The complainant was stated to have concealed the receipt of Demand Notice from the assessee on 07.01.2020 as also his conduct of misappropriation of Rs 15.20 Lacs from the CD, on the basis of forged and fabricated documents. CBI registered the FIR vide RC-DAI-2020-A-001 under Section 7 and 7A of the PC Act, read with Section 120B of IPC against assessee. Assessee unlawfully and illegally assumed jurisdiction to investigate the matter under the PC Act despite the fact that neither assessee nor Paresh Kumar were public servants. During the alleged verification conducted between the lodging of the complaint and registering the FIR, CBI did not inquire into the alleged claims raised by the complainant from the Corporate Debtor. Assessee was produced before the Duty Judge and his 14 days’ Judicial Remand was sought. Assessee questioned the jurisdiction of the respondent on the ground that he was not a Public Servant as defined under PC Act and the CBI did not have jurisdiction to investigate the case and any action by them was void ab initio and that he had been illegally detained at the instance of the complainant. It was held that despite having all the previous Acts on the instant subject like The Provincial Insolvency Act, 1909, the Insolvency Act, 1920, SICA 1985, RDDBFI Act 1994 and SARFAESI 2002 which were codified to form IBC and despite being aware of the roles and duties ascribed upon the individuals who were appointed by the Courts or Boards contained therein as Liquidators, Receivers and the like, and having all relevant materials before it, the Legislature, in its wisdom, thought it fit and prudent not to include IP as “public servant” and such non inclusion was, thus, a willful and deliberate omission. It was trite that what was not specified may not be readily inferred, particularly if the same would be penal in nature. In other words, any provision of law entailing penal consequences ought to be strictly construed and nothing specified therein should not be read in or filled up readily. Resultantly, the omission to include IP in section 232 IBC was not inadvertent but a thoughtful, willful and deliberate one by the Legislature, and the Courts of law being empowered to interpret the same, ought not to legislate or supply casus omissus, which in any case was prohibited. Whether the IP was or was not a “public servant” according to IBC or PC Act 1988 or Section 21 IPC, 1860, was purely the domain of the Legislature and if required and necessitated, the legislature may carry out necessary amendments to the legislations. In the considered opinion of this Court, an Insolvency Professional did not fall within the meaning of “public servant” as ascribed in any of the clauses of sub-section (c ) of section 2 of the Prevention of Corruption Act, 1988. Resultantly, the FIR registered by the respondent no. 1/CBI was quashed and set aside.
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