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2020 Supreme(Mad) 2300
IN THE HIGH COURT OF MADRAS
G.K. Ilanthiraiyan, J.
M.L. Ganesh and Ors. - Appellant
Versus
V. Venkata Siva Kumar - Respondent
Crl. O.P. Nos. 4669, 5115 of 2020, Crl. M.P. Nos. 2915 and 2661 of 2020
Decided On : 30-09-2020
For the Appellant : S. Arunkumar and P.B. Benjamin George
Headnote:
Indian Penal Code,1860 - Sections 500, 499 , 192 r/w 34 - Insolvency and Bankruptcy Code - Sections 27, 25(2)(h) , 16, 17 and 18 - Criminal Procedure Code,1973 - Section 482 - Evidence Act - Section 126 – Defamation - Appointment and removal of Resolution Professional - Removal cannot be termed as defamatory - Whether he could properly act upon the instructions - Whether he could properly act upon 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 scope and extent of the privilege conferred upon the lawyer - 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 - whether as Judges or as Advocates, but 'there cannot well be a science of law without such profession' - Petitioner is the former Managing Director and Chief Executive Officer of Indian Overseas Bank, 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 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 is provided under the Insolvency and Bankruptcy Code. In Corporate Insolvency Resolution Process (hereinafter called as CIRP), the interest of creditors and the stakeholders is paramount. Since the Committee of Creditors - subject to the approval of COC. Therefore, COC unanimously resolved to remove respondent and appointed another RP. Therefore, the decision taken by COC which comprises of 5 financial institutions and as such removal cannot be termed as defamatory - 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 - Learned Magistrate also without even looking into the allegations made in the complaint, mechanically had taken cognizance and issued summons to the petitioners - petitioners did not make any statement, thereby detaining the respondent – Held, 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 freedom of such lawyers. Fiat justitia ruat caelum: Let justice be done, though heavens may fall - 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 - petitions are allowed
ORDER :
G.K. Ilanthiraiyan, J.
1. 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 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 anothe
