Any prosecution under Section 70 of the IBC can be initiated only in accordance with the procedure as provided under Section 236(2) and not by the Resolution Professional – Vivek Prakash (Suspended Director & MD) Vs. Dinesh Kr. Gupta, Liquidator of M/s Jarvis Infratech Pvt. Ltd. & Anr. – NCLAT New Delhi

NCLAT holds that prosecution under Section 70 has to be on complaint filed by the Board or Central Government or person authorized by the Central Government. Further, clarify that any prosecution under Section 70 can be initiated only in accordance with the procedure as provided under Section 236(2) and not by the Resolution Professional. However, with regard to any other offences including the offences under Indian Penal Code, if any complaint is filed by the Resolution Professional before a Police Station that is separate issue and has no concern with the offences under Section 70 and the order impugned shall have no bearing on such proceedings by a Police Station and they are independent proceedings which has to be considered and decided in accordance with law.

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If any Public depositor applies showing due of the debt claiming itself as operational creditor and the Resolution Professional or the Tribunal do not accept the claim on the ground that they are not financial creditor, we allow the appellant to raise the question before the Tribunal and if any adverse decision is given by the Tribunal, it will be open to the appellant to raise the issue before NCLAT- Hind Motors India Ltd. Vs. Adjudicating Authority NCLT, Chandigarh – NCLAT New Delhi

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