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2012 DIGILAW 1345 (BOM)

Ayaz Ahamed Khan v. State of Maharashtra

2012-07-23

K.U.CHANDIWAL

body2012
Judgment :- Heard both the learned Counsel extensively. 2. The applicant-an Advocate and Notary seeks quashing and setting aside of the criminal proceedings no.1355/PW/2009 pending on the file of Learned Metropolitan Magistrate's 32nd Court at Bandra, Mumbai, and order dated 4.8.2011 thereby rejecting the discharge application filed by the petitioner. 3. The petitioner as a Notary-Advocate notarised the document in respect of the owner of the plot-Smt. Vinita Deshpande concerning MHADA allotment. It subsequently revealed that Smt. Vinita Dehapande was abroad at the material time when the document was purportedly notarised, and consequently, the petitioner as a notary has been prosecuted. 4. The Investigator has not prosecuted the advocate who has identified the said person before execution of the document or notarising the same. The act of the petitioner as a Notary has no other reason to travel beyond the scope of notarising the document, without there being any personal involvement, to know text or texture of the document or genuineness thereof. He was, while notarising, was not expected to know the genuineness of the party, as it is the Advocate to whom the Notary identifies who has identified the executant. 5. Section 13 of the Notaries Act takes care for the protection extended to such acts done during the course of performance as a notary. It reads as under:- "Cognizance of offence-(1. No court shall take cognizance of any offence committed by a notary in exercise or purported exercise of his function under this Act, save upon complaint in writing made by an officer authorized by the Central Government or State Government by general or special order in this behalf." 6. In the light of the above position and considering the fact situation, there could not have been a prosecution of the petitioner that too for an offence under Sections 420, 465, 467, 468, 471 r/w. 34 of IPC. The petitioner could have served the purpose of prosecution as a witness. Writ petition is allowed. The proceedings questioned are set aside to the extent of the petitioner.