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2019 DIGILAW 1531 (KAR)

Ishwar v. State of Karnataka

2019-07-02

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. 1. This petition has been filed by the petitioner-accused No. 3 under Section 482 of Cr.P.C. praying this Court to quash the proceedings in C.C. No. 607/2017 (in Crime No. 311/2014 of Sub-Urban Police Station, Dharwad), pending on the file of the Principal Civil Judge and JMFC Court, Dharwad in respect of petitioner-accused No. 3. 2. I have heard the learned counsel appearing for petitioner-accused No. 3 and the learned HCGP for respondent No. 1-State. Though notice is served on respondent no. 2/ complainant, he has remained absent and there is no representation on his behalf. 3. The facts leading to the case are that the complainant filed a private complaint alleging that a GPA has been created by forging the signature of deceased Venkappa Channappa Kamatar in order to make illegal gain in respect of Survey No. 56, measuring 9 Acres 13 Guntas, situated at Hattikolla village and sale deeds have been executed on the basis of said GPA. It is further alleged that the petitioner-accused was working as a notary and he has also co-operated in executing a fake GPA. On the basis of private complaint, the Court below has taken cognizance of the offences and has issued summons to accused persons. Challenging the same, the petitioner-accused No. 3 is before this Court. 4. It is the contention of the learned counsel for petitioner-accused No. 3 that the petitioner-accused No. 3 is working as a notary and as per Section 13 of the Notary Act, 1952 (hereinafter referred to as "the Act" for short) there is a bar to take cognizance of the offences as against the notary. Prior to taking of cognizance, a prior sanction is required from the Central Government or the State Government. Without such sanction if any proceedings are initiated, then the same are liable to be quashed. On these grounds, he prayed to allow the petition and quash proceedings as against the petitioner-accused no. 3. 5. The learned High Court Government Pleader has vehemently argued and contended that the petitioner-accused No. 3, who was working as a notary since long, has not properly discharged his duties and there is a dereliction of duty on the part of petitioner-accused No. 3 and as such he has been arrayed as accused in the case. 3. 5. The learned High Court Government Pleader has vehemently argued and contended that the petitioner-accused No. 3, who was working as a notary since long, has not properly discharged his duties and there is a dereliction of duty on the part of petitioner-accused No. 3 and as such he has been arrayed as accused in the case. The Court below, after considering the said facts and circumstances, has rightly taken cognizance of the offences. There is no good ground to allow the petition and quash the proceedings. On these grounds, she prayed to dismiss the petition. 6. I have carefully and cautiously gone through the submissions made by the learned counsel for parties and perused the records. 7. It is the only contention of learned counsel for petitioner-accused that the petitioner- accused No. 3 is working as a notary under the Act and the cognizance of the offence has been taken by the Court below by arraying the petitioner as accused No. 3 is not in accordance with section 13 of the Act and there is a bar under the said section to take cognizance as against notary. For the purpose of clear understanding, I quote section 13 of the Act. "13. Cognizance of offence - (1) No Court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under this Act save upon complaint in writing made by an officer by the Central Government or a State Government by general or special order in this behalf. (2) No magistrate other than a presidency magistrate or a magistrate of first class shall try an offence punishable under this Act." 8. A close reading of the above section shows that no Court shall take cognizance of any offence committed by a notary in exercise or purported exercise of his functions under the said Act and the complaint can be made only by an authorized person or officer authorized by the Central Government or a State Government by general or special order in this behalf and no magistrate other than the presidency magistrate or magistrate of the first class shall try an offence punishable under the said Act. When the said section clearly shows that if any offence is committed by a notary in exercise or purported exercise of his functions under the said Act, the complaint has to be made by an officer authorized by the Central Government or a State Government and admittedly the complaint has been registered by one Shivanand Fakkirappa Kamatar and even no such authority or permission was sought in this behalf from the government. Under the said facts and circumstances, there is a clear abuse of process of law and as such, the petitioner-accused No. 3 has made out good grounds to quash the proceedings initiated against him. 9. Accordingly, petition is allowed and the proceedings in C.C. No. 607/2017, pending on the file of the Principal Civil Judge and JMFC Court, Dharwad insofar as petitioner- accused No. 3 is concerned, for the offences punishable under Section 468, 471, 204, 420 r/w 34 of IPC, is quashed. 10. In view of the disposal of main matter, I.A. No. 1/2018 does not survive for consideration.