A Resolution Professional will come within the meaning of ‘Public Servant’ under Section 2(c) of the Prevention of Corruption Act, 1988 and Section 233 of IBC does not protect where he has been apprehended red-handed with the bribe amount – Sanjay Kumar Agarwal Vs. Central Bureau of Investigation, Anti Corruption Bureau, Dhanbad – Jharkhand High Court
In this case, a complaint against Resolution Professional was made that Resolution Professional/Petitioner had demanded a bribe of Rs.2,00,000/- per month for showing leniency in the insolvency resolution process for extending CIRP process from 09 months to 02 years and also demanded Rs.20,00,000/- for obtaining favourable forensic audit/valuation report from his chosen Forensic Auditor/Valuer and for helping in re-possession of plant/company.
The central question in the instant petition is whether Resolution Professional as defined under Section 22 of the IBC will come within the meaning of ‘Public Servant’ under Section 2 (c) of the Prevention of Corruption Act, 1988?.
Hon’ble High Court that: (i) functions and obligations of Insolvency Professionals are as set out under Section 208 of IBC which are public in nature. These functions intimately relate to matters relating to loans extended by the Banks which is investments from public at large and therefore will come within the meaning of public duty as provided under Section 2-c(viii) of the Prevention of Corruption Act, 1988. (ii) The appointment of Resolution Professional is made during the resolution process before the Company Law Tribunal with its approval, he will be a public servant under Section 2(c)(v) of the Prevention of Corruption Act, 1988. (iii) Section 233 of IBC gives protection to a resolution professional from criminal prosecution for acts in good faith, and not where he has been apprehended red-handed with the bribe amount. (iv) Section 232 does not exclude operation of Prevention of Corruption Act, 1988.