George Vettukulam v. Dr. Hithesh Sankar and State of Kerala

Crl.M.C.No.402/2015 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943_ _CRL.MC NO. 402 OF 2015_ _AGAINST THE ORDER/JUDGMENT IN CC 452/2014 OF CHIEF JUDICIAL_ ## _MAGISTRATE, THRISSUR_ ## _PETITIONER/ACCUSED NO.1:_ _GEORGE VETTUKULAM, VATTUKULAM HOUSE, P.O.R.PURAM, KUTTUMUKKU, THRISSUR-680 631._ _BY ADV SRI.KALEESWARAM RAJ_ ## _RESPONDENTS/COMPLAINANT:_ _1 DR.HITHESH SANKAR, DEPUTY POLICE SURGEON AND ASSISTANT PROFESSOR OF FORENSIC MEDICINE, THRISSUR MEDICAL COLLEGE (S/O.T.M.SANKUNNY, THOTTUNGAL HOUSE, NATTIKA VILLAGE, CHAVAKKAD TALUK, THRISSUR DIST._ _2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031._ _BY ADVS. E.VIJIN KARTHIK SUJESH MENON V.B. R.ROHITH_ _R2 BY SRI.SUDHEER GOPALAKRISHNAN-PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON 07.01.2022 PASSED THE FOLLOWING:_ Crl.M.C.No.402/2015 2 ## **ZIYAD RAHMAN A.A, J.** ------------------------------------------------Crl.M.C.No.402 of 2015 ---------------------------------------------Dated this the 7[th] day of January, 2022 ## **O R D E R** The petitioner is the accused in C.C.No.452 of 2014 on the file of the Chief Judicial Magistrate Court, Thrissur. The offence alleged against him are under Section 499 and 500 of the Indian Penal Code and the said case was registered on the basis of a private complaint submitted by the 1[st] respondent herein. 2. The allegation in the complaint is that, an organization, namely Malayalavedi, represented by its President, Sri.George Vettukulam (petitioner herein), the 1[st] accused therein and Adv.C.T.Joffy, State General Secretary, the 2[nd] accused therein have submitted a complaint before the Vigilance Court, Thrissur alleging certain baseless and defamatory statements against the 1[st] respondent and thereby committed the offences mentioned Crl.M.C.No.402/2015 3 above. On the basis of the said complaint, which is produced as Annexure-I, the learned Chief Judicial Magistrate has taken cognizance against the 1[st] accused as evidenced by Annexure-A2 and summons was issued. The petitioner filed this Crl.M.C. challenging Annexure-II order. 3. Heard Sri.Kaleeswaram Raj, learned counsel for the petitioner, Sri.R.Rohith, learned counsel for the 1[st] respondent and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 4. The learned counsel for the petitioner challenges Annexure-II proceedings, mainly on two grounds. Firstly, it was contended that the accused named in the complaint is Malayalavedi, represented by the President who is the petitioner herein as the 1[st] accused and the 2[nd] accused is again Malayalavedi, represented by its State General Secretary, Adv C.T Jophy . Malayalavedi is an organization and therefore, is a juristic person, against whom no mens rea can be attributed, so as to attract the offenece under Crl.M.C.No.402/2015 4 Section 499 and 500 IPC. It is also contended that even otherwise, the statements alleged to have been made by the accused would not attract the offences punishable under Section 499 IPC, because it was made as part of the pleadings of a complaint submitted before the court, which is a lawful authority and hence the 8[th] exception of Section 499 IPC would get attracted. Based on the above grounds, the learned counsel for the petitioner seeks for quashing the complaint invoking powers of this Court under Section 482 Cr.P.C. The learned counsel relies on the judgment in **South Indian Bank Ltd. And Others v. Paul Vareed Cheruvathoor and Others [2013 (4) KHC 742]** and **Rajendra Kumar Sitaram Pande and Others v. Uttam and Another [(1999) 3 SCC 134]** . 5. On the other hand, the learned counsel for the 1[st] respondent would contend that the offence would get attracted as against the petitioner herein, because of the reason that the complaint wherein the defamatory statements were made by the Crl.M.C.No.402/2015 5 accused, was submitted before the Vigilance Court, Thrissur in the name of Malayalavedi, represented by the petitioner herein as also by its State General Secretary. It is pointed out by the learned counsel for the 1[st] respondent that, he has made specific allegations in Annexure-I complaint clearly indicating the identity of the petitioner herein and therefore the offence is attracted against him. As regard to the contention of the learned counsel for the petitioner relating to the 8[th] exception of Section 499 IPC, it was contended that, it is a matter of evidence and the same cannot be considered in a proceedings of this nature. 6. The main point to be considered in this case is as to whether the complaint was properly constituted or not. It is seen that, the accused persons named in the complaint are Malayalavedi, represented by its President and Adv. C.T.Joffy, State General Secretary. Admittedly, Malayalavedi is an organization and the name of the petitioner was included in the complaint only in their respective official capacities. In order to attract the criminal offence, one of the basic ingredients is Crl.M.C.No.402/2015 6 mens rea. The concept of mens rea is only in relation to real persons and in respect of any juristic person, the same cannot be attributed. The act which constitutes the offence under Section 499 IPC must have been committed with the intention to harm or having reason to believe that the statement allegedly made by the accused will harm the reputation of another person. An intention, which can be found only in a conscious mind, is the most basic requirement for attracting the said offence. As far as a juristic person is concerned, it can never have such an intention as the same is operating through individual persons. In such circumstances, mens rea cannot be attributed to a juristic person and no offence under Section 499 IPC can be attributed against the juristic person. The aforesaid question was the subject matter before this Court in **South Indian Bank** (supra), wherein at paragraph 10 thereof, it is observed as follows: “Further, for the purpose of attracting the offence under Section 499 of the Indian Penal Code, mens rea is an ingredient to be proved. No offence of defamation will lie if there is no mens rea established. Admittedly, the first accused is a bank, Crl.M.C.No.402/2015 7 registered under the provisions of the Indian Companies Act and it is only a juristic person and not a real person. So, in such cases, mens rea cannot be attributed to a juristic person. If mens rea cannot be attributed to such person, then, no offence under Section 500 of the Indian Penal Code can be attracted against such persons. In the case of statutory offences, a company can be made liable for the offence alleged under that statute, where mens rea is not an ingredient to be proved. Where in a statute, it was specifically mentioned that a company can also be implicated as an accused under certain circumstances, then, a company can be proceeded against for such offences under that statute as mens rea is irrelevant in such statutory offences committed by the company. This was so held in the decisions reported in Anath Bandhu v. Corporation of Calcutta (AIR 1952 Cal 759), B.N.Mehrotra and others v. State (AIR 1956 Cal 137), Sunilakhya Chowdhury v. H.M.Jadwet and another (AIR 1968 Cal 266) and Standard Chartered Bank v. Vinay Kumar Sood and others (2010 Crl.L.J.1277). In the decision reported in R.Kalyani v. Janak Mehta and others (2009(1) SCC 516), in paragraphs 33 and 34 of the judgment, it has been discussed as follows : 'In Sham Sunder v. State of Haryana (1989) 4 SCC 630), this Court held : Crl.M.C.No.402/2015 8 '9. But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not.' 34. Yet again, in Radhey Shyam Khemka v. State of Bihar (1993) 3 SCC 54), the law has been laid down by this Court, thus : '6. But, at the same time, while taking cognizance of alleged offences in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the shareholders which constitute one offence or other under the Penal Code, court must be satisfied that prima facie and offence under the Penal Code has been disclosed on the materials produced before the court. If the screening on this question is not done properly at the stage of initiation of the criminal proceedings, in many cases, some disgruntled shareholders may launch Crl.M.C.No.402/2015 9 prosecutions against the promoters, Directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. It need not be impressed that for prosecution for offences under the Penal Code, the complainant has to make out a prima facie case against the individuals concerned, regarding their acts and omissions, which constitute the different ingredients of the offences under the Penal Code. It cannot be overlooked that there is a basic difference between the offences under the Penal Code and acts and omissions which have been made punishable under different Acts and statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient ; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such persons become liable to be punished. But, for framing a charge for an offence under the Penal Code, the Crl.M.C.No.402/2015 10 traditional rule of existence of mens rea is to be followed.' So, under such circumstances, it cannot be said that the first accused bank committed any offence even if the allegations mentioned in the complaint are admitted to be true and amounts to defamation.” The aforesaid judgment was rendered by this Court after referring to the principles laid down by the Honourable Supreme Court in S **yam Sunder v. State of Haryana [(1989) 4 SCC 630]** . **7.** Principles laid down in the said judgment are squarely applicable to the facts and circumstances of this case. Admittedly, the persons accused in Annexure-I complaint are juristic persons. The contention of the learned counsel for the 1[st] respondent is that, as the complaint contains specific allegation against the petitioner herein, the offence would get attracted. However, I am of the view that the said contention cannot be accepted in view of the fact that the petitioner was never arrayed as an accused in his individual capacity. The inclusion of the name of the petitioner is only in his capacity as Crl.M.C.No.402/2015 11 the president of Malayalavedi. In such circumstances, the allegations which are made against the petitioner in his individual capacity would not attract any offence as against the aforesaid institution and hence the proceedings in the complaint are vitiated. 8. With regard to the second contention relating to the applicability of the 8[th] exception, Section 499 IPC, I do not deem it necessary to consider the same at this juncture, in the light the finding I have already entered into in respect of the first issue and hence the said question is left open. In the result, this Crl.M.C is allowed and all further proceedings in C.C.No.452 of 2014 pending before the Chief Judicial Magistrate Court, Thrissur are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG Crl.M.C.No.402/2015 12 ## _APPENDIX OF CRL.MC 402/2015_ _PETITIONER ANNEXURES_ _ANNEXURE-I: TRUE COPY OF THE COMPLAINT IN C.M.P.NO.1429/2012 IN C.C.NO.452/2014. ANNEXURE-II: TRUE COPY OF THE ORDER DATED 18.7.2014. ANNEXURE-III: TRUE COPY OF THE REPORT WHICH IS APPEARED IN MATHRUBHUMI DAILY DATED 4.11.2012._