For institution of prosecution under Section 70(1)(c) of IBC, there has to be prima facie satisfaction that papers which have been sought for, are in his control or custody which is not being given by the Corporate Debtor – Avneesh Kumar Singh & Anr. Vs. Rakesh Kumar Jain, RP of SN Jee Buildwell Pvt. Ltd. & Ors. – NCLAT New Delhi
Section 70(1)(c) of IBC provides that when Corporate Debtor does not deliver to the resolution professional all books and papers in his control or custody belonging to the corporate debtor and which he is required to deliver, he shall be punishable with imprisonment for a term which shall not be less than three years. Essential fact to be found is “the papers and books in his control or custody”. There has to be prima facie satisfaction that papers which have been sought for, are in his control or custody which is not being given by the Corporate Debtor, which may lead to a reference for institution of prosecution. From the facts, which has been brought on record, it is clear that total thirty-seven documents were asked for by the RP, which all were provided except Sr. No. 27. There is also no finding that this document at Sr. No. 27 is in the possession of either of the Appellants. It held that we thus are of the view that Direction for initiating prosecution was uncalled for. We thus are satisfied that direction in the Order dated 22.10.2021 directing for instituting prosecution deserved to be set aside and is hereby set aside.
