Judgment : 1. Accused Nos.1 to 9 in CC No.45/10 on the file of the Chief Judicial Magistrate, Thrissur are the petitioners herein. They filed the petition before this Court to quash Annexure A complaint and all further proceedings in CC No.45/10 of that court as regards the petitioners are concerned, under Section 482 of the Code of Criminal Procedure (for short, the Code). 2. The case of the petitioners in the petition was that the first respondent was an employee of the first petitioner bank and some disciplinary proceedings were initiated against him and thereafter, he was dismissed from service. While he was working at Ananthawady Branch, Tamil Nadu, he filed OP No.3000/08 before the Sub Court, Thrissur, challenging his dismissal from service as illegal. While the bank had issued a notice under Section 13(2) of the SARFAESI Act through their Deputy Manager, Regional Office, Sterling Road, Changanasseri, he challenged the same before this Court by filing Writ Petition(C) No.9619/06. On 1.8.2006, the 10th accused filed a counter affidavit in the writ petition, representing the South Indian Bank Limited. On the basis of some averments in the counter affidavit, the first respondent herein filed Annexure A complaint before the Chief Judicial Magistrate Court, Thrissur, where he had stated as follows : “In paragraph 4(a) of the counter affidavit, it has been averred as follows : Departmental enquiry was initiated against the petitioner for the alleged acts of misconduct involving defrauding a customer of the bank to the tune of Rs..3.20 lakhs and defrauding the bank to the extent of Rs.74,586/-. According to the second respondent, the above imputations leveled against him in the counter affidavit are per se defamatory and there is no iota of truth in those imputations. It has been made deliberately and in a calculative manner for the purpose of maligning and tarnishing the reputation and image of the complainant. The imputations made in the counter affidavit have been made by the accused with the knowledge that it will lower the reputation of the complainant. There is no necessity to make such an allegation in the writ petition filed by the first respondent, questioning the validity of issuance of a notice under Section 13(2) of the SARFAESI Act. The imputations made in the counter affidavit have been made by the accused with the knowledge that it will lower the reputation of the complainant. There is no necessity to make such an allegation in the writ petition filed by the first respondent, questioning the validity of issuance of a notice under Section 13(2) of the SARFAESI Act. The complainant had filed a detailed appeal before the then Board of Directors against his dismissal from service, wherein he had specifically enumerated and objected to the defamatory aspects levelled against him shown in the charge-sheet. A notice was issued regarding the same to the accused persons except the 11th accused, which as an inadvertent omission. The allegations were made with an intention to defame the complainant. So, the accused have committed the offence punishable under Section 500 read with Section 34 of the Indian Penal Code.” 3. The complainant was examined and one witness was also examined as CWs 1 and 2. After considering the evidence on record, the Chief Judicial Magistrate has taken cognizance of the case against all the accused persons, including the present petitioners under Section 500 read with Section 34 of the Indian Penal Code as CC No.45/10 and summons was issued to the petitioners and other accused persons. Even if the entire allegations are accepted on face value, there was no offence made out against the petitioners as the first petitioner is a bank and other petitioners are only the Directors of the bank, no personal imputation can be made against them for the acts alleged to have been committed by accused Nos.10 and 11. Even as per the allegations in the complaint, there is nothing mentioned about the role of accused Nos.1 to 9 in filing the counter affidavit, containing the alleged defamatory statement. It cannot be said that even assuming that such an allegation is made, it will not amount to defamation as it is only a reiteration of facts and nothing more. It is an abuse of the process of court to proceed with the complaint as against the petitioners and so, they pray for quashing the proceedings under Section 482 of the Code. Hence the petition. 4. Though notice was served on the first respondent, he has not chosen to appear before this Court. The second respondent is represented by the Public Prosecutor. 5. Heard both sides and perused the records. 6. Hence the petition. 4. Though notice was served on the first respondent, he has not chosen to appear before this Court. The second respondent is represented by the Public Prosecutor. 5. Heard both sides and perused the records. 6. The learned counsel for the petitioners submitted that the first petitioner is a bank and petitioners 2 to 9 are only the Directors of the Bank. They have no involvement in the day-to-day affairs of the branches of the bank. They are only taking policy decisions and they are being implemented by the branches. They have no role to play in the preparation of the counter statement or other activities, which are being done by the officers of the bank under them. Unless it is alleged that they also had an active role in the preparation of the counter statement and those allegations are made with their knowledge and connivance, it cannot be said that they have committed any offence, even assuming that the averments in the counter affidavit will amount to defamation. There is no criminal offence committed by the petitioners. The complainant had no case that they have signed the counter affidavit, so as to make them personally responsible for the averments made in the counter statement. Under such circumstances, the learned Magistrate was not justified in taking cognizance of the case as against the petitioners and the proceedings are liable to be quashed as against them. 7. On the other hand, the learned Public Prosecutor submitted that it is a matter for evidence as to whether they have got any role in the preparation of the counter statement containing the alleged defamatory statement and if the matter has to be decided on the basis of evidence, then, it is not proper for this court to invoke Section 482 of the Code and quash the proceedings and that will have to be done before the Trial Court and the case must be allowed to have its natural culmination. So, he prayed for dismissal of the petition. 8. It is an admitted fact that the first petitioner is a bank, incorporated under the provisions of the Indian Companies Act, the second petitioner is its Managing Director and Chief Executive Officer and the other petitioners are its Directors. They are residing in different places, as evident from the addresses shown in the petition as well as in the complaint. It is an admitted fact that the first petitioner is a bank, incorporated under the provisions of the Indian Companies Act, the second petitioner is its Managing Director and Chief Executive Officer and the other petitioners are its Directors. They are residing in different places, as evident from the addresses shown in the petition as well as in the complaint. It is also an admitted fact that the complainant was working as Senior Manager in the Regional Office at Mumbai and disciplinary proceedings were initiated against him on the allegation of misappropriation of amounts and after enquiry, he was dismissed from service. It is also an admitted fact that for the purpose of recovery of the amounts due from him, notice under Section 13(2) of the SARFAESI Act was issued and the same was challenged by him before this Court in writ petition (C) No.9619/06 to quash the proceedings. It is also an admitted fact that he had impleaded the first petitioner bank and accused nos.10 and 11 as respondents in the writ petition. It is also an admitted that the 10th respondent, who was authorised by the first petitioner herein to conduct the case, filed a counter affidavit on his behalf and on behalf of the 11th accused in this case, who were shown as respondents 2 and 3 in the writ petition. It is also an admitted fact that there is an averment in the counter affidavit in para 4A of the counter affidavit as follows : “Departmental enquiry was initiated against the petitioner for alleged acts of misconduct involving defrauding a customer of the bank to the tune of Rs.3.20 lakhs and defrauding the bank to the tune of Rs..74586...... ......” I am not, at this stage, going into the question as to whether the statement will amount to per se defamatory or not. 9. Further, even in the complaint, it was mentioned that he did not participate in the disciplinary proceedings and in paragraph 10 of the complaint, it was mentioned that he filed a detailed appeal before the then Board of Directors against his dismissal wherein, he had specifically enumerated and objected to the defamatory aspects levelled against him in the show cause notice/charge sheet. So, it is clear from this that it was when the appeal before the Board of Directors of the first petitioner was pending that he had filed the present complaint, implicating the bank as well as the directors as accused along with the persons sworn to the counter affidavit on his behalf and on behalf of the third respondent in the writ petition, who were shown as the 10th and 11th accused in the complaint. In order to make the directors of the bank and the bank liable for the offence, it must be alleged and proved that they have directly involved in the commission of the offence or they were in charge of the day-to-day administration of the company, which committed the alleged offence. The first petitioner being a legal entity and not a natural person, it cannot be said that it had any malice against the complaint in making the statement. Further, a reading of the complaint also will go to show that the directors, who are shown as accused nos.2 to 9 have no direct role in the preparation and filing of the counter statement. 11. 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, 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. 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 : “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 prosecutions against the promoters, Directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. 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 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 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. 10. Similarly, unless the directors of the company are directly responsible for the preparation of the counter statement, it cannot be said that they had mens rea to make such defamation with an intention to defame the complainant in this case. Since accused nos.2 to 9 who are directors of the company, residing in different places and not parties to the writ petition mentioned in the complaint, in which accused Nos.10 and 11 had filed the counter affidavit, it cannot be said that they have also shared the common intention wit accused Nos.10 and 11, in preparation of the counter affidavit with an intention to defame the complainant. Except a vague allegation, there is no specific allegation in the complaint that they have any direct knowledge about the contents of the counter statement filed in the writ petition mentioned in the complaint. Except a vague allegation, there is no specific allegation in the complaint that they have any direct knowledge about the contents of the counter statement filed in the writ petition mentioned in the complaint. Under such circumstances, it cannot be said that accused Nos.2 to 9 have shared the common intention of the deponent of the counter statement, making such an allegation and thereby they also can be implicated in the case as coaccused invoking Section 34 of the Indian Penal Code. Therefore, it cannot be said that the petitioners have shared the common intention with the person, who have sworn the counter statement which contains the alleged defamatory statement in order to make them punishable for the offence under Section 500 of the Indian Penal Code. So, the Magistrate was not justified in taking cognizance of the case against the petitioners for the offence under Section 500 of the Indian Penal Code, invoking Section 34 of the Indian Penal Code. Even if he case is allowed to proceed, in view of the discussions made above, no purpose will be served and it will only amount to abuse of the process of court. Further, the circumstances under which the present petitioners were made accused also explicit from the complaint itself that the complainant was found guilty in the enquiry initiated against him on the basis for the allegations made in the counter statement and he was dismissed from service and that was questioned by him before the Board of Directors and that was pending at the time when the complaint was filed. It will go to show that it is a pressure tactic adopted by the complainant to pressurise the directors of the bank to decide the case in his favour and such an attempt should not be encouraged as well. So, the Magistrate has committed an error in taking cognizance of the case against the petitioners for the offence under Section 500 read with Section 34 of the Indian Penal Code and the same is liable to be quashed. So, the Magistrate has committed an error in taking cognizance of the case against the petitioners for the offence under Section 500 read with Section 34 of the Indian Penal Code and the same is liable to be quashed. So, I feel that this is a fit case where the power under Section 482 of the Code of Criminal Procedure has to be invoked to do justice and the proceedings against the petitioners who were shown as accused Nos.1 to 9 in CC No.45/10 on the file of the Chief Judicial Magistrate, Thrissur, is liable to be quashed and I do so. In the result, the petition is allowed and the proceedings against the petitioners, who are shown as accused Nos.1 to9 in CC No.45/10 on the file of the Chief Judicial Magistrate, Thrissur, is hereby quashed. Office is directed to communicate this order to the concerned Magistrate forthwith.