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Advocates acting professionally as per instructions of clients cannot be made liable for Defamation under IPC
ML Ganesh Vs CA V Venkata Siva Kumar
Crl.O.P.Nos.4669 & 5115 of 2020
About/from the judgment:
"... 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", the Court noted.
The Madras High Court recently observed that an advocate who has acted professionally as per the instructions of his/her client cannot generally be made criminally liable for the offence of defamation under Section 500 (Punishment for defamation) of the Indian Penal Code (IPC).
The Court made this pertinent observation while quashing a criminal defamation complaint made against Advocate ML Ganesh and his client for statements made before National Company Law Tribunal (NCLT) in an Insolvency Proceeding Case.
Relying on the ruling in Ayeasha Bi v. Peerkhan Sahib, the court held that,
"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."
While arriving at the said conclusion, the Bench also referred to the a number of judgments such as Arun Thakur v. State of Chhattisgarh and others, K Daniel v. T Hymavathy Amma etc.
An application was filed before the NCLT seeking to remove a chartered accountant, who was a resolution professional for a company in an IBC proceedings case. The application was moved by Ganesh on behalf of a committee of creditors.
Subsequently, the chartered accountant (respondent) filed a criminal defamation complaint before the XVII Metropolitan Magistrate Court, Chennai against the committee of creditors and the lawyer, alleging that the statements made by them before the Court were defamatory in nature.
Aggrieved by the above, the said advocate and the committee of creditors (CoC) approached the High Court, seeking to quash the defamation complaint against them.
The Advocate appearing for CoC and the Advocate contended that the petitioner being an advocate was representing his client. Such representation and arguments made in the court cannot be construed or termed as defamatory in nature as alleged by the chartered accountant. If it is treated as defamation, no legal professional will render legal assistance to any aggrieved person in fear of vexatious complaints being made 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.
The chartered accountant/respondent, appearing as party in person, argued that the CoC's lawyer is a counsel on record and that during the first hearing before the subordinate Court, he began making serious unfounded baseless allegations against the respondent stating that his professional services were not up to the mark, among submissions.
This, would therefore attract the offence under Section 499 of IPC (Defamation) and, as such, the Magistrate rightly took cognizance of the offence against the accused persons.
What High Court held
After hearing the rival submissions of parties, the Court observed that,
"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."
While this was the position, the Court also took note that the chartered accountant/respondent had subsequently been removed on the application made by the CoC. The NCLT verdict on this count was also subsequently affirmed by the NCLAT, it was pointed out. Hence, it was not established that the CoC's application were defamatory.
The Court, therefore, proceeded to quash the defamation complaint against the lawyer and committee members.
Read the Judgment
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