Saturday, 10 October 2020

Whether any party can prosecute Advocate for defamation if he pleads on behalf of a client?

 In regard to the decision of Meredith J. in

AIR 1948 Pat 56 (Z33) It would be wholly improper for

me to canvass the correctness of this single Judge's

decision of another High Court which is not binding

upon me except to the extent that it refers to the decision

of Burn J. in 1935 Mad WN Cr 76 (A). The learned

Judge writes :


"I have been referred to the notes in Ratanlal's Penal

Code for a Madras case, 1935 Mad WN Cr 76 (A)

which, according to the learned commentator, laid down

that where the accused was charged with defamation

because his vakil put a defamatory question to the

complainant and the vakil gave evidence that he did so

on the instruction of his client, the accused, the

instructions of the accused to his vakil were inadmissible

under Section 126, Evidence Act and the accused was

not guilty of defamation committed as it were by proxy

through the mouth of his vakil. Unfortunately, the

decision is not obtainable In the library here. but the

reasoning quoted, seems to me sound."

 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. It would therefore be unrighteous

to make the lawyer the whipping-boy for his client.

It is held 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.

24. In light of above-stated legal analysis, an

advocate, who acted professionally as per instructions of

his/her client, cannot be made criminally liable for the

offence of defamation under Section 500 of the IPC unless

contrary is alleged and established.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.09.2020

CORAM: MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.Nos.4669 & 5115 of 2020 

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

Dated: 30.09.2020



COMMON ORDER

These criminal original petitions have been filed to

quash the proceedings in CC.No.5095 of 2019 on the file of the XVII

Metropolitan Magistrate, Saidapet, Chennai, having been taken

cognizance for the offences under Sections 500, 192 r/w 34 of IPC.


2. The learned counsel for the petitioners in

Crl.OP.No.5115 of 2020 submitted that the petitioners are arrayed as A1,

A3 to A5 in the complaint lodged by the respondent for the offences

punishable under Sections 500, 192 r/w 34 of IPC. The first petitioner is

the former Managing Director and Chief Executive Officer of Indian

Overseas Bank, the second petitioner is the former Assistant General

Manager of Central Bank of India and the third petitioner is the General

Manager, attached to the Central Office of IOB and the fourth petitioner

is the Assistant General Manager of IOB attached to Zonal Office,

Chennai. He further submitted that the appointment and removal of

Resolution Professional(hereinafter called as RP) is provided under the

Insolvency and Bankruptcy Code. In Corporate Insolvency Resolution

Process(hereinafter called as CIRP), the interest of the creditors and the

stakeholders is paramount. Since the Committee of Creditors(hereinafter

called as COC) may compromise of several institutions, to manage the

CIRP the Code provides appointment of RP. However, he cannot act

independently and he 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.

2.1 He further submitted that COC comprises of the

financial creditors and they are exercising the statutory powers conferred

under the provisions of Insolvency and Bankruptcy Code(hereinafter

called IBC). Therefore the action taken under the IBC would not amount

to any offence. The COC have statutory powers under IBC to replace

Resolution Professional and they can very well appoint other RP. In fact

the respondent challenged the order passed by the COC before this Court

by way of writ petition and the same was dismissed and aggrieved by the

same, he also filed writ appeal and the said writ appeal was also

dismissed. Thereafter approached the National Company Law Appellate

Tribunal and the same was also dismissed. The respondent completely

suppressed all those details and lodged the present impugned complaint.

The learned Magistrate also without even looking into the allegations

made in the complaint, mechanically had taken cognizance and issued summons to the petitioners. The petitioners are being public servants

and they vested with statutory duty conferred under the IBC and no

sanction of the Government was obtained to prosecute them. Even

according to the respondent, the petitioners did not make any statement,

thereby detaining the respondent herein. In fact, COC had acted in the

interest of the institutions, in which they represented and safeguard the

public funds. Therefore, there is absolutely no iota of material to attract

the offence under Section 500 of IPC. He also relied upon the judgment

in the case of K.Virupaksha and others Vs State of Karnataka and

others reported in (2020) 4 SCC 440.

3. The learned counsel for the petitioner in

Crl.OP.No.4669 of 2020 would submit that the petitioner is arrayed as

A2. He is practicing advocate with more than 28 years of experience

representing various bank and also private financial institutions before

this Court and Debt Recovery Tribunal, National Company Law Tribunal

and also National Company Law Appellate Tribunal and Supreme Court.

On instruction from his client, the petitioner has filed application in

CP.No.563(IB)CB/17 under Section 27 of Insolvency and Bankruptcy

Code before the National Company Law Tribunal, Chennai for

replacement of the respondent herein and proposed another person to be

appointed as Resolution Professional. The said application was filed at

the behest of Indian Overseas Bank, Central Bank of India, State Bank of

India and IDBI Bank having 87.42% of voting shares in the aforesaid

corporate debtor company, such as M/s.Oceanic Edibles International

Ltd. The respondent had published an invitation for expression of

interest (EOI) for resolution plan of the CD company on 23.01.2018 in

two newspapers without getting approval from the COC member banks

which is in violation of amended provision under Section 25(2)(h) of

IBC.

3.1 He further submitted that the respondent had sent

unsigned letter to the Chairman of IOB, CBI and SBI wherein made

scathing and derogatory remarks against the top officials who

represented the COC meeting. Issuance of notice to then IRP without the

knowledge and information of COC member banks and sent letter,

e-mail on 08.02.2018 and 09.02.2018. Without consulting the COC

member banks proposed appointment of forensic auditor to look into the

undervalued preferential transactions. The respondent has not minutised

the serious key issues as raised in the COC meeting by CBI which is

against the code of conduct under regulations 7(2)(g) of IBC. Unwanted

e-mails sent to top executives of the COC member banks containing

baseless, misleading allegations in a threatening manner. Discussion of

the COC meetings posted in the whatsapp group created by the

respondent. Improperly recording the minutes of meeting held on

09.02.2018 wherein included the agenda not discussed in the COC

meeting by the member banks. Sending e-mails on 10.02.2018,

11.02.2018, 12.02.2018, 13.02.2018, 15.02.2018, 16.02.2018 to the top

executives of the bank in a very unethical manner. He further submitted

that on the application based on the records and arguments of both the

sides, the application was allowed and he was removed. In fact during

the enquiry, the respondent has sent e-mail to the petitioner threatening

him that he will take action before the Bar Council of Tamil Nadu for

making statement against him. He also had posted so many messages.


He also threatened the members of COC vide email dated 11.02.2018

that he will file defamation case for damages to the tune of ten crores.

The respondent also challenged the order passed by NCLT before the

High Court, National Company Law Appellate Tribunal, New Delhi but

failed to sustain his vexatious contentions. Without even disclosing those

orders filed the impugned complaint alleging that the petitioner along

with other accused persons have made defamatory statement against the

respondent herein.

3.2 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 afraiding of vexatious complaint from the other

side. He further submitted that the legal profession always enjoins

immunity while arguing the case for his client in the open court which

cannot be termed as defamation. In support of his contention, he relied

upon the following judgments:


(i) Ayeasha Bi Vs.Peerkhan Sahib

reported in 1954 AIR Mad 741.

(ii) Judgment of High Court of Chhattisgarh in

Crl.MP.No.1984 of 2018 between Arun Takur and

State of Chattisgarh and others.

4. Per contra, the respondent appeared party in person

and filed counter and stated that he was appointed as Resolution

Professional of one Corporate Debtor M/s.Oceanic Edibles Private

Limited undergoing Corporate Insolvency Resolution Process by the

National Company Law Tribunal, Chennai Bench. The respondent was

being neutral Court officer was entrusted with managing the company as

a going concern as per Section 16,17 and 18 of Insolvency and

Bankruptcy Code, 2016. During investigation, he found that about 320

crores worth of stocks of prawns were returned of as damaged stock and

thrown in the sea. Therefore, he moved a Resolution Professional

conducting a domestic audit, which was objected by the COC. Therefore

it was taken up before the first accused. The first accused instead of

cooperating with the resolution process, was already annoyed with the

respondent because of an earlier instance wherein the respondent as the auditor for SWIFT transaction audit involving a fraud of Rs.300 crores

committed by one employee of IOB at Chandigarh Branch in connivance

with the staff at Head Office. During the 4th COC meeting represented by

accused 3 to 5, abused the respondent in spite of that he was being the

Chairman of the meeting and created ruckus resulting in media persons

waiting outside the conference room becoming inquisitive. Therefore,

the first accused directed COC to file petition before the NCLT, Chennai

for removal of the respondent by making defamatory, and false and

baseless allegations as against the respondent. It would impact on the

profession and reputation among the fraternity. The following

defamatory statements were made by the accused persons:

a) Resolution Professional “is not up to the

expected standard” (para 21)

b) “He is only keen on entering into the brawl

with everyone, thus undermining the judicial process, if

he is allowed to continue the interest of COC will be

jeopardized”(para 21)

c) COC had already lost precious 50 days from

the date of his appointment, no effective business has

been conducted to evolve the resolution process in a

forward moving directions (para 22)

d) Resolution professional has misrepresented

to media violating the code of conduct (para 23)

e) seeking amendments in IBC is beyond the

Rps scope(para 18)

f) resolution professional again sent mails to

the top executives wherein he had made statements to the

top executives in a very unethical manner and uncalled

for (para 19)

4.1 He further submitted that the second accused is a

counsel on record and during the first hearing, 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. In

this regard, the respondent relied upon the following judgments:


(i) Prem Kumar Vs. Nehar Singh reported in

1991 (1) SLJ 668.

(ii) And Krishnan Lal Verma Vs. State of Haryana

reported in AIR 1976 SC 1947

(iii) Bhupen Dutta Bhowmik Vs. State of Tripura

reported in 1993 Crimes 846 at p.848

(iv) Dr.Radhanath Rath Vs. Balakrishna Swain

reported in 1985 Cr.L.J. 735 at p.740, 741(Orissa).

4.2 He further submitted that the points raised by the

petitioners are mixed question of facts and as such it cannot be

considered before this Court under Section 482 of Cr.P.C. It has to be

considered only during the trial before the trial court by let in evidence.

Therefore, he sought for dismissal of the quash petitions.

5. Heard, Mr.S.Arunkumar, learned counsel for the

petitioner in Crl.OP.No.4669 of 2020, Mr.P.B.Benjamin George, learned

counsel for the petitioners in Crl.OP.No.5115 of 2020, and the

respondent, Mr.Venkata Siva Kumar appeared party-in-person.


6. There are totally five accused, in which the

petitioners are arrayed as A1 to A5. The second accused is an advocate

appeared on behalf of other accused persons. A1, A3, A4 and A5 are

members of the Committee of Creditors. Initially, the respondent herein

was appointed as Insolvency Resolution Professional of M/s.Oceanic

Edibles International Ltd. which is undergoing Corporate Insolvency

Resolution Process by the National Company Law Tribunal, Chennai

Bench. Due to various allegations as against the respondent, accused 1,

3, 4 and 5 instructed the second accused to file an application to remove

the respondent and seeking appointment of another Resolution

Professional in CP No.563(IB)CB/2017 under Section 27 of Insolvency

and Bankruptcy Code, 2016 before the National Company Law Tribunal,

Chennai. The said application was allowed and the respondent herein

was removed and another person was appointed as Resolution

Professional. According to the respondent, the following statements

made by the petitioners are defamatory nature and thereby defamed the

respondent's reputation.


a) Resolution Professional “is not up to the

expected standard” (para 21)

b) “He is only keen on entering into the brawl

with everyone, thus undermining the judicial process, if

he is allowed to continue the interest of COC will be

jeopardized”(para 21)

c) COC had already lost precious 50 days from

the date of his appointment, no effective business has

been conducted to evolve the resolution process in a

forward moving directions (para 22)

d) Resolution professional has misrepresented

to media violating the code of conduct (para 23)

e) seeking amendments in IBC is beyond the

Rps scope(para 18)

f) resolution professional again sent mails to

the top executives wherein he had made statements to the

top executives in a very unethical manner and uncalled

for (para 19)

7. The order passed by the National Company Law

Tribunal, Chennai Bench was challenged by the respondent before this

Court by way of writ petition. The writ petition at the stage of SR in


WP.SR23210 of 2018 was dismissed as not maintainable before this

Court. Aggrieved by the same, the respondent also filed writ appeal in

WA.No.1232 of 2018 and the same was also dismissed by granting

liberty to the respondent to avail alternative remedy provided under the

Insolvency and Bankruptcy Code. The respondent later challenged the

order passed by the National Company Law Tribunal before the National

Company Law Appellate Tribunal in Appeal (AT)No.668 of 2018. It was

also dismissed as withdrawn. As rightly pointed out by the learned

counsel for the petitioners, the petitioners are members of COC, and they

have vested with statutory powers under the IBC to replace the

Resolution Professional in the manner provided under IBC.

Accordingly, they instructed their counsel, namely the second accused to

file an application before the NCLT. Therefore, it would not attract

offence under Section 499 of IPC. It is relevant to extract provision

under Section 499 of IPC hereunder:

499. Defamation.—Whoever, by words

either spoken or intended to be read, or by signs or by

visible representations, makes or publishes any

imputation concerning any person intending to harm,

or knowing or having reason to believe that such

imputation will harm, the reputation of such person, is

said, except in the cases hereinafter expected, to

defame that person.

8. On perusal of the statement made by the petitioners

in the application are not at all attracted any offence under Section 499 of

IPC. Insofar as A2 is concerned, he is being an advocate for other

accused persons, filed an application on instruction of COC before

National Company Law Tribunal to remove the respondent. In this

regard, the learned counsel for the petitioner in Crl.OP.No.4669 of 2020

relied upon the judgment in the case of Ayeasha Bi Vs.Peerkhan Sahib

reported in 1954 AIR Mad 741, wherein this court has held as follows:

31. In regard to the decision of Meredith J. in

AIR 1948 Pat 56 (Z33) It would be wholly improper for

me to canvass the correctness of this single Judge's

decision of another High Court which is not binding

upon me except to the extent that it refers to the decision

of Burn J. in 1935 Mad WN Cr 76 (A). The learned

Judge writes :


"I have been referred to the notes in Ratanlal's Penal

Code for a Madras case, 1935 Mad WN Cr 76 (A)

which, according to the learned commentator, laid down

that where the accused was charged with defamation

because his vakil put a defamatory question to the

complainant and the vakil gave evidence that he did so

on the instruction of his client, the accused, the

instructions of the accused to his vakil were inadmissible

under Section 126, Evidence Act and the accused was

not guilty of defamation committed as it were by proxy

through the mouth of his vakil. Unfortunately, the

decision is not obtainable In the library here. but the

reasoning quoted, seems to me sound."

It Is quite possible that if Meredith J. had perused the

entire report he might have come to a different

conclusion. In any event, his conclusion that no one

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

instructions 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 and

secondly, it will make a lawyer's position in India

hopelessly impossible if he were to be held vicariously

responsible for all the instructions given by his client

and in fact it would be a case not of the lawyer

representing his client but of a lawyer doubling or

substituting for his client-accused. This would cut at the

root of the 'impersonality' of advocacy which is the basis

of our criminal administration of Justice. 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. It would therefore be unrighteous

to make the lawyer the whipping-boy for his client.

It is held 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.

9. It is also held in Crl.Misc.Petition No.1984 of 2018

in the case of Arun Thakur Vs. State of Chhattisgarh and others as

follows:

17. The Allahabad High Court in the matter of B

Sumat Prasad Jain v. Sheo Dutt Sharma and another

MANU/UP/0046/1945 : AIR 1946 Allahabad 213 with

regard to the privilege of an advocate acting professionally

in a cause observed as under:-

"So long as the interests of litigants in this

country are entrusted to recognized and

qualified professional men and so long as the

Courts repose their confidence in the Bars

which practise before them, I respectfully agree

with Sir Henry Richards in thinking that it

would be a disaster to the litigating public, both

if the liberty of speech or action of their

advocates were circumscribed by exposure to

civil suits for words spoken or written in the

course of the administration of cause entrusted

to them, and if the Courts were by law

compelled to withdraw their confidence from

them. Such exposure would, I think, be

calculated to limit their freedom and

independence in their clients' interests to a

greater extent than would be the case in

England, if no absolute privilege existed there,

since the risk of vexatious and often ruinous

litigation in India is far greater. Nor do I

perceive for what good reasons, so long as the

same principles of the practice and

administration of justice are maintained, or

aimed at, in this country as in England the

necessity for the maintenance of the absolute

privilege of the Bar should be less. Indeed, there

is the greater need for it in a country in which

the advocate is exposed to larger risks of

spiteful litigation. If it be said that conversely,

the risk of the abuse of an absolute privilege is

also greater, I should still maintain that it were

better in the public interest that the immunity of

the advocate should be sufficiently large to

enable him to perform his duty fearlessly than

that some relatively few cases of abuse should

be made the subject of a just civil liability. If

abuse occurs, as sometimes from inexperience

and sometimes from less excusable causes is

bound to happen, the remedy lies, I think, not in

an alteration of the law relating to the privilege

but in fostering high standards of practice, in

the censure of the public and in the continuous

vigilance of the Courts themselves."

18. Likewise, in the matter of K. Daniel v. T.

Hymavathy Amma MANU/KE/0048/1985 : AIR 1985

Kerala 233 it was observed by the Kerala High Court that

the English Courts have reiterated the view during last four

hundred years that the statements made by Judges, Juries,

counsel, parties and witnesses in the course of judicial

proceedings are not actionable in civil law for defamation

as the occasion is absolutely privileged. It was further held

that the English Common Law relating to absolute

privilege enjoyed by Judges, advocates, attorneys,

witnesses and parties in regard to words spoken or uttered

during the course of a judicial proceeding is applicable in

relation to a civil suit filed for damages for defamation. The

reasons for granting absolute privilege to the statements

made in the course of judicial proceedings are laid down in

paragraph 11 of the judgment which are as follows:-

"11. It is imperative that Judges, counsel,

parties and witnesses participating in a judicial

proceeding must be able to conduct themselves

without any apprehension of being called upon

to answer a claim for damages for defamation.

They must be able to act uninfluenced by any

such fear. Freedom of speech on such occasions

has to be totally safeguarded. Hence it is

necessary to protect the maker of statements on

such occasions. The privilege arises on account

of privilege attached to the occasion and not to

the individual. It is possible that sometimes

counsel or the parties or witnesses may take

advantage of the occasion and indulge in false

or malicious statement which has the effect of

bringing down the reputation of some other

person; that would certainly be mischievous.

But to say that statement would be privileged

only in the absence of malice would put these

persons in considerable strain and apprehension

on such occasions. Basis of privilege is not

absence of malice or the truth of statement or

the intention of the maker but public policy.

Any restriction on privilege during the occasion

would create constraints in the process of

administration of justice."

19. Likewise, in the matter of Chunni Lal v.

Narsingh Das MANU/UP/0325/1917 : AIR 1918

Allahabad 69, the Full Bench of the Allahabad High Court

has held that defamatory words used in connection with the

judicial proceedings are not actionable on the ground of

absolute privilege and as such the suit for damages for

defamation instituted by the plaintiff was dismissed.

20. Recently, in the matter of, Pradip Kumar

Mitra v. Lipi Basu and others MANU/WB/0153/2017, the

Calcutta High Court relying upon the decision of the Full

Bench of the Allahabad High Court in Chunni Lal (supra)

and that of the Kerala High Court in K. Daniel (supra)

while following the view has held that the privilege

extended to the Judges, Juries, counsel, parties and

witnesses are based on the principle of public policy.

21. Likewise, in the matter of Bennett Coleman

& Co. Ltd. and others v. K. Sarat Chandra and others

MANU/AP/1026/2015, the High Court of Judicature at

Hyderabad for the State of Telangana and the State of

Andhra Pradesh held that the privilege of Judges, Counsel,

Jury, Witnesses or Parties to be the absolute privilege and

observed as under:-

"Absolute privilege-a statement is said to have

absolute privilege when no action lies whether

against Judges, Counsel, Jury, Witnesses or

Parties, for words spoken in the ordinary

course of any proceedings before any Court or

Tribunal recognized by law. It is manifest that

the administration of justice would be

paralyzed if those who were engaged in it were

liable to actions of libel or slander upon the

imputation that they had acted maliciously and

not bona fide. The privilege extends not only

to words spoken but also to documents

properly used and regularly prepared for in the

proceedings."


22. The Calcutta High Court in the matter of P.C.

Gupta v. The State MANU/WB/0392/1970 : (1970) ILR 2

Cal 254 has held that the doctrine of absolute privilege is

not applicable to criminal proceeding. It was held as

under:-

"It is abundantly clear, therefore, that even in

the said Single Bench decision of the Bombay

High Court, the doctrine of absolute privilege

enjoyed by a lawyer in regard to words spoken

or uttered during the course- of a judicial

proceeding was applied only to civil suits filed

for damages for libel or slander and it was

noted that there was originally a divergence of

opinion and ultimately the preponderance of

the decisions of the different High Courts is

that the said doctrine of absolute privilege

should not be applied to a criminal proceeding

where the party prosecuted should be required

to bring his case within exception 9 to Section

499 of the Indian Penal Code."

23. The Calcutta High Court further relied upon

the observation by the Master of the Rolls in the case of

Munster v. Lamb (1882) SUR. 11 Q.B.O. 588 which is as

under:-

"If any one needs to be free of all fear in the

performance of his arduous duty, an advocate

is that person and, therefore, unless and until

there is a proof of 'express malice' on the part

of the lawyer, in the discharge of his

professional duties, he does not come within

the bounds of the offence of defamation. In

ancient Rome a class of persons called the

jurisprudence came into existence though

they were not professional lawyers in their

true sense. Notion of law does not include of

necessity the extent of a distinct profession of

lawyers whether as Judges or as Advocates,

but 'there cannot well be a science of law

without such profession'. The lawyers are the

high priests in pursuit of truth at the altar of

justice and there should be no spoke in the

wheels of justice by fettering unreasonably

the freedom of such lawyers. Fiat justitia mat

caelum: Let justice be done, though heavens

may fall."

24. In light of above-stated legal analysis, an

advocate, who acted professionally as per instructions of

his/her client, cannot be made criminally liable for the

offence of defamation under Section 500 of the IPC unless

contrary is alleged and established.

The Hon'ble Supreme Court of India and also various High Courts

repeatedly held that an advocate who acted professionally as per the

instruction of his or her client cannot be made criminally liable for

offence of defamation under Section 500 unless contrary is alleged and established.

10. 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.

11. 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.

Dated: 30.09.2020


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