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Advocate acted professionally as per instruction of his client can't be made criminally liable: MHC


M.L.Ganesh v. CA V.Venkata Siva Kumar

Crl.OP.No.4669 of 2020 DECIDED ON: 30.09.2020 The present case is decided by Hon’ble Mr. Justice G.K.Ilanthiraiyan. The present case is a Criminal Original Petition filed under Section 482 Cr.P.C., praying to call for the records and quash the criminal complaint in CC.No.5095 of 2019 on the file of XVII Metropolitan Magistrate Court, Chennai.

The Hon'ble Supreme Court of India and also various High courts repeatedly held that an advocate who acted professionally as per per the instructions of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established. (para 9)

The main issue was :

Whether the decision taken by Committee of creditors is defamatory or not?

The learned council for petitioner stated that that the appointment and removal of Resolution Professional is provided under the Insolvency and Bankruptcy Code. In Corporate Insolvency Resolution Process, the interest of the creditors and the stakeholders is paramount. Since the Committee of Creditors may compromise of several institutions, to manage the CIRP the Code provides appointment of RP and has to act upon the guidelines of COC and his actions are subject to the approval of COC. Therefore, COC unanimously resolved to remove the respondent and appointed another RP. Therefore, the decision taken by the COC which comprises of 5 financial institutions and as such such removal cannot be termed as defamatory. He also argued that the respondent completely suppressed all those details and lodged the present impugned complaint. The learned council relied upon the judgment of K.Virupaksha and others Vs State of Karnataka and others reported in (2020) 4 SCC 440. He further submitted that the petitioner is being an advocate he represented on behalf of his client and as such his representation and arguments made in the court cannot be construed or termed as defamatory in nature as alleged by the respondent herein. If it is treated as defamation, no legal professional will render legal assistance to any aggrieved person afraid of vexatious complaint from the other side. The learned council for respondent argued that second accused is a counsel on record and filed counter and started abusing respondent making serious unfounded baseless allegations. When the respondent pointing out such serious baseless allegations are harming his reputation and advised the second respondent to avoid such abusive attacks. Therefore it would attract the offence under Section 499 of IPC and as such the learned Magistrate rightly taken cognizance for the offence under Section 499 of IPC as against the accused persons.

The Court reasoned that a lawyer is an advocate, one who speaks for another. Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client. Therefore no lawyer could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer, because it is the lawyer's business to decide whether he could properly act upon the instructions, and whatever responsibility might ensue from acting upon those instruction would be his, and no one else's, is opposed to the entire trend of decisions defining the scope and extent of the privilege conferred upon the lawyer. (para 8)

Thus it was held that,

In the case on hand, allegations made in the application filed on behalf of the members of COC filed by the second respondent are not defamatory in nature. In fact, on the application the respondent was removed and the same was also challenged upto National Company Appellate Tribunal, Delhi and confirmed.

In view of the discussion, the impugned complaint is clear abuse of process of court and as such it cannot be sustained as against the petitioners. Accordingly, these criminal original petitions are allowed, and the entire proceedings in CC.No.5095 of 2019 on the file of XVII Metropolitan Magistrate Court, Chennai is quashed. Consequently, connected miscellaneous petitions are closed.


-Kamalini

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