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2023 (4) TMI 1139 - HC - Insolvency and BankruptcyAction against Resolution Professional - Demand of Bribe for showing leniency in the insolvency resolution process for extending CIRP process from 09 months to 02 years - demand of bribe for obtaining favourable forensic audit/valuation report from his chosen Forensic Auditor/Valuer and for helping in re-possession of plant/company - applicability Section 7 of PC Act to this petitioner (as a ‘Resolution Professional’ is not a public servant within the meaning of Section 2(C) of the Prevention of Corruption Act or under Section 21of the IPC). Whether ‘Resolution Professional’ as defined under Section 22 of the I&B Code will come within the meaning of ‘Public Servant’ under Section 2 (c) of the PC Act? HELD THAT:- This court is of the view that resolution professional will come within the meaning of a public servant under Section 2(c) the PC Act for the reason that definition of public servant as given under the PC Act is very wide and expansive. It is not limited to those serving under the Government or its instrumentalities and drawing salary from the public exchequer. Apart from the list of the functionaries given in Section 2 (c), the definition also lays down the functional criteria to include within its fold those discharging public duty or any duty authorized by a court of justice, in connection with administration of justice. Under Section 16 (1) an interim resolution professional is appointed by the adjudicating authority on the insolvency commencement date. Under section 22 (3)(a), the committee of creditors after taking a decision to continue the interim resolution professional as the resolution professional, is required to communicate its decision to Adjudicating Authority and others - Against this scheme of the I&B Code the plea advanced on behalf of the petitioner that Adjudicating Authority had no role in the appointment of Resolution Professional is not sustainable. Thus, 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 P.C. Act. Whether the functions of a Resolution Professional partake the character of a ‘public duty’? - HELD THAT:- The appointment of resolution professional is made by the National Company Law Tribunal, which is the Adjudicating Authority for the insolvency resolution process of the companies under the I & B Code, 2016. Resolution Professional has a key role to play in the insolvency resolution process and to protect the assets of the corporate debtors. From his nature of assignment and duty to be performed his office entails performance of functions which are in the nature of public duty and therefore will come within the meaning of public servant both under sections 2 (c) (v) & (viii) of the PC Act - the plea that the Petitioner was not a Public Servant within the meaning of the PC Act is rejected. Petition dismissed.
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