Bharatkumar Mulabhai Kanthariya v. State Of Gujarat
2019-04-26
A.P.THAKER
body2019
DigiLaw.ai
JUDGMENT : 1. This is an application filed under Section 482 of the Code of Criminal Procedure (‘the Code’ for short) for quashing the FIR, being C.R. No.I-76 of 2017 registered with Chandkheda Police Station, Gandhinagar for the offences punishable under Sections 406, 420, 467, 468, 471, 120(B) read with Section 506 of the Indian Penal Code. 2. The brief facts of the prosecution case is that the complainant-respondent No.2 has lodged the FIR on 24.4.2017, alleging forgery on the ground that he never sent any document and the petitioner had forged the document by notarizing the same. It is also contended that the complainant has not put any signature in the register of the petitioner, who is a Notary, and without his presence, the notary has notarized the so-called rent agreement. 2.1. It is also alleged that the complainant has house at D-56, Kumkum Residency, Chandkheda, Ahmedabad and it was vacant and therefore, in July 2014, one Nitinkumar Purshottambhai Chauhan, resident of Bapunagar, had asked him on mobile as to whether his house is vacant and he wants to give it on rental basis. It is also alleged that therefore, he had informed that the key of the house is with one Nileshbhai Shah, resident of Chandkheda, and he informed him that he may get it on rental basis if found suitable to him. It is also alleged that thereafter, Nitinkumar agreed to take his house on rental basis and on asking by Nitinkumar, he has agreed to give the premises on rent and permitted him to shift the household articles in the said premises and told him that whenever he comes in Chandkheda, he will execute rent agreement. It is also stated that thereafter, he went to Surat and when he was in Surat, said Nitinkumar came in Surat and brought the rent agreement on hundred rupees stamp paper, wherein the period was shown as 11 months and 29 days and at that time, he informed him that it may be notarized in Surat but at that time, Nitinkumkar had told him that he is not in hurry and as and when the complainant comes in Chandkheda, they will get it notarized in Ahmedabad.
It is also alleged that thereafter, he came in Chandkheda and inquired about Nitinkumar and at that time, his wife had told him that Nitinkumar has gone out of station and informed him that they will vacate the house within 10 days. 2.2. It is also alleged that in the meanwhile, in the month of May 2015, when he approached Nitinkumar for vacating the premises, at that time, Nitinkumar quarreled with him and told him that if he insisted him to vacate the premises, then he would get a complaint of rape lodged through his wife and thereafter, Nitinkumar called the police and gave threat to him. It is also alleged that thereafter, Nitinkumar filed an application in Gandhinagar Court and placed the copy of the rent agreement. It is alleged that on perusal of the same, it was found that it was for the period of 1 year, 11 month and 29 days and it was notarized before the present petitioner. 2.3. According to the complainant, the alleged rent agreement was false and when he approached the present petitioner, he informed him that Nitinkumar came with rent agreement on hundred rupees stamp paper for its notarization and told him that the owner/landlord Jagdishbhai Solanki is on his leg and would come later on. It is also alleged that therefore, the complainant asked him to show his notary register, wherein there was no signature of him and on that basis, it is alleged by the complainant that with connivance of Nitinkumar, the present accused has created the false document and has committed the alleged offences. 3. It is contended by the petitioner that there is no ingredient of the offences alleged in the FIR against the present petitioner. It is contended that the impugned FIR against the present petitioner is filed with oblique and ulterior motive for causing unwarranted harassment. It is also contended that the FIR is not maintainable inasmuch as prior to the date of the impugned FIR, the respondent No.2- original complainant had already filed a civil suit before the Civil Court, Gandhinagar for the subject property and as per the FIR, the disputed document, being rent agreement, had already expired on the date of lodging of the FIR. 3.1.
3.1. It is also contended that on 4.8.2014, alleged agreement was executed before the petitioner by the respondent No.2 and other coaccused for the suit property and the respondent No.2- original complainant is the landlord and other co-accused is the tenant under the said agreement. It is also contended that as per the information collected by the petitioner, the tenant, i.e. co-accused, filed Regular Civil Suit No.157 of 2015 in the Civil Court, Gandhinagar for permanent injunction against the respondent No.2 and thereafter, as a counter-blast, the respondent No.2- original complainant filed Regular Civil Suit No.170 of 2015 before the Civil Court, Gandhinagar for eviction and permanent injunction against co-accused Nitinbhai Purshottamdas Chauhan. It is also contended that both the civil suits are pending for adjudication before the Civil Court. It is also contended that the FIR is filed with oblique and ulterior motive to escape from the liabilities and to harass the petitioner using police machinery as lever. 3.2. It is also contended that in view of the provisions of Section 13 of the Notaries Act, 1952, no prosecution against the petitioner, who being a Notary, is maintainable unless a complaint in writing is made by an officer authorized by Central or State Government. It is also contended that the rent agreement was notarized in the year 2014, whereas the FIR is lodged on 24.4.2017, i.e. after delay of 3 years and that too without any satisfactory explanation for the delay caused. On all these grounds, it is prayed by the petitioner to quash the impugned FIR against him. 4. Heard learned advocate Ms. Bhargavi G. Thakar for the petitioner, learned Additional Public Prosecutor Ms. Monali Bhatt for the respondent No.1- State and learned advocate Ms. Nimisha J. Parekh for the respondent No.2 at length. Perused the material placed with the matter and the decisions cited at bar. 5. Learned advocate Ms. Bhargavi Thakar submitted the same facts which are stated in the memo of petition and has stated that the rent note was executed between the parties and it was notarized by him. It is contended that the mistake on the part of the petitioner is of not taking signature in the register meant thereof. According to her submission, the civil dispute is going on between the landlord and the tenant and the civil suit was filed in the year 2015, whereas the FIR is lodged in 2017.
It is contended that the mistake on the part of the petitioner is of not taking signature in the register meant thereof. According to her submission, the civil dispute is going on between the landlord and the tenant and the civil suit was filed in the year 2015, whereas the FIR is lodged in 2017. She also contended that the complainant is an Income Tax officer and not a layman. While referring to the documents produced with the matter, she has also stated that as per the instruction of the police, the landlord has to fill up a form regarding the particulars of the tenant and in this case also, on the same day, the said form has been filled up and given to Chandkheda Police Station, which bears the signature of the landlord. While referring to that document at Annexure-C, she has stated that in column No.4, there is a specific mentioning of the period of rent of 1 year, 11 month and 29 days. This shows that the landlord has executed the rent agreement at Annxure-B. She has also contended that there is signature of the landlord in the rent note. She has also contended that it is not the case of the landlordrespondent No.2 that there is no signature of him on any of these documents. 5.1. Learned advocate Ms. Thakar also contended that the petitioner along with his son were present in the police station on 22.4.2017, but at that time, the police pressurized the notary, i.e. the present petitioner, to see that the tenant vacates the premises. She has also stated that considering the facts narrated in the FIR, he has been granted anticipatory bail. She has also contended that the present petitioner is wrongly implicated in the case. 5.2. While referring to Section 13 of the Notaries Act, 1952, she has stated that no action can be taken against the notary in absence of complaint by authorized officer of the Central or State Government. While relying on the following decisions, she has prayed to allow the present petition:- (1) In the case of Ashokbhai Rameshchandra Ghantivala Vs. State of Gujarat and Another reported in 2009(2)GLH 491; (2) Decision of Bombay High Court in the case of Chandmal Motilal Bora Vs. The State of Maharashtra reported in 2004(2) MhLJ 41 ; (3) Decision of Bombay High Court in the case of Bramhadev R. Dube Vs.
State of Gujarat and Another reported in 2009(2)GLH 491; (2) Decision of Bombay High Court in the case of Chandmal Motilal Bora Vs. The State of Maharashtra reported in 2004(2) MhLJ 41 ; (3) Decision of Bombay High Court in the case of Bramhadev R. Dube Vs. State of Maharashtra and Another reported in 2014(3) MhLJ (Cri) 234; (4) In the case of Mohmed Yusufbhai Kasambhai Kalavat Vs.State of Gujarat reported in 2015(3) GLR 2263 . 6. Per contra, learned Additional Public Prosecutor Ms. Monali Bhatt for the State has vehemently submitted that there is clear-cut and prima facie evidence against the present petitioner in forging the document, i.e. rent agreement. It is also contended that there is no signature of landlord, i.e. the complainant, in the register maintained by the petitioner and therefore, it can be presumed that the rent agreement is notarized by the present petitioner in absence of the landlord. She has also contended that the allegations made in the FIR are prima facie believable and during the course of investigation, notary register has been seized, wherein also, the signature of the complainant is not found. According to her submissions, it was the duty of the petitioner to see that both the parties are present before him while notarizing the document and he should have taken signature of the landlord/ owner in his register. It is her submission that in absence of such exercise, prima facie, it can be believed that the petitioner has helped in forging the rent agreement. She has prayed to dismiss the petition. 7. Learned advocate Mr. Nimisha Parekh for the original complainant has while supporting the arguments of learned Additional Public Prosecutor submitted that there is a breach of Rule 11(2) of the Notaries Rules and there is negligence on the part of the notary. She has also contended that due to the negligence on the part of the petitioner, the property in question is dragged into litigation and landlord is not in a position to get the possession of the same from the tenant. According to her submission, the tenant is still enjoying the property due to the alleged rent agreement. She has also contended that had the petitioner not notarized the document, the tenant have to wait for the landlord and in that case, the civil dispute might not have been arisen between the parties.
According to her submission, the tenant is still enjoying the property due to the alleged rent agreement. She has also contended that had the petitioner not notarized the document, the tenant have to wait for the landlord and in that case, the civil dispute might not have been arisen between the parties. She has also contended that the charge-sheet has been filed and the civil suit is pending and therefore, at this stage, the FIR may not be quashed. 7.1. She has also contended that as the charge-sheet is filed, the petitioner can raise any defence, which has been raised in the present petition, during the trial. On all these aforesaid grounds, she has prayed to dismiss the petition. 8. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinies the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 9. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations.
A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 10. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 11. The question of application of Section 13 of the Notaries Act, 1952 was considered by this Court in the case of Ashokbhai Rameshchandra Ghantivala Vs. State of Gujarat (supra). It is observed in para 8 of the said judgment as under:- “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 I writing made by an officer authorised 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 the first class shall try an offence punishable under this Act.” A plain reading of Section 13 makes it clear that a complaint against a notary in exercise or purported exercise of his functions under the Act has to be made in writing by an officer authorised by the Central Government or the concerned State Government by general or special order in this behalf. Unless a complaint is made in the manner prescribed, no Court is empowered to take cognizance of the offence. This view finds support from the objects and reasons behind the said provision, which reads thus: “The Committee consider that protection should be given to notaries in respect of cognizance of offences. They think that protection should be given only to notaries who commit an offence acting or purporting to act in the discharge of their functions under this Act.
This view finds support from the objects and reasons behind the said provision, which reads thus: “The Committee consider that protection should be given to notaries in respect of cognizance of offences. They think that protection should be given only to notaries who commit an offence acting or purporting to act in the discharge of their functions under this Act. This clause has been inserted with this object.” From the objections and reasons, it is apparent that even if an offence is committed by a notary while acting or purporting to act in the discharge of his functions under the Act, a complaint can be lodged only as provided under Section 13 of the Act. Thus any offence committed by a notary acting or purporting to act in discharge of his functions under the Act would fall within the ambit of the Section and a Court can take cognizance of such offence only if the complaint is made in the manner laid down in the Section. 12. In the case of Mohmed Yusufbhai Kasambhai Kalavat (supra), which was also a case relating to a notary, while relying on the decision of this Court in the case of Ashokbhai (supra), it was observed therein that non-compliance of the provisions strikes the root and subsequent compliance cannot cure the defect in law inasmuch as taking cognizance of offence itself is barred. 13. In the case of Bramhadev R. Dube Vs. State of Maharashtra (supra), Bombay High Court has observed in para 10 that, no doubt, the notary public was under an obligation to take care that the deponent who signed the document was the same person in whose name the document was signed. At the same time, it cannot be ignored that Section 13 not only protects the notary from the alleged offences committed in exercise of his functions but it also protects the purported exercise of the said functions. 14. In the case of Chandmal Motilal Bora Vs. The State of Maharashtra (supra), Bombay High Court has observed in para 15 and 16 as under:- “15. Every criminal prosecution by itself implies hardship to an indicated person in his day to day occupation which happens to be the source of livelihood. It also implies expenditure in engaging a lawyer to represent him in defending him in the trial.
The State of Maharashtra (supra), Bombay High Court has observed in para 15 and 16 as under:- “15. Every criminal prosecution by itself implies hardship to an indicated person in his day to day occupation which happens to be the source of livelihood. It also implies expenditure in engaging a lawyer to represent him in defending him in the trial. It also makes it necessary for such indicted person to appear tin the Court on various dates. In addition to that it implies social stigma and creates a worried time for him. He is always haunted by presence of such prosecution tough he may be following his daily routine of his occupation or life. The ordeals which he is to undergo in facing the trial is troublesome. 16. When there is no case for proceeding further, the criminal Court has to consider it at the initial stage, when it has been requested to take cognizance of criminal complaint. Even at later stage, if a request is made by applicant, it has to be considered on in it proper perspective and has to consider its merit. If that is not done, then there would be heap of criminal cases in every criminal Court and there would be crowd of accused persons liotering in the premises of criminal Courts. Neither of it is a convenient or pleasant phenomenon.” 15. Now, considering the aforesaid legal principles as well as the factual aspects of the present case, it appears that the petitioner herein has notarized the document without taking signature of the deponent in his register. It also appears from the record that the civil litigation is going on between the landlord and the tenant since 2015, whereas the present complaint has been lodged in 2017. It also reveals from the documentary evidence produced with this matter that as per the requirement of city police, landlord has to fill up a form indicating the name of the tenant, whom the premises is rented by the landlord and duration for which the premises is rented to such tenant. From Annexure-C, it is found that the landlord has submitted the form with due particulars therein indicating the name of the tenant as well as the duration of the rent agreement and there is no allegation of the landlord that he has not signed that particular document.
From Annexure-C, it is found that the landlord has submitted the form with due particulars therein indicating the name of the tenant as well as the duration of the rent agreement and there is no allegation of the landlord that he has not signed that particular document. This document is received by the police in 2014, i.e. on 6.8.2014. It also appears from the rent agreement, which is at Annexure-B, that it has been executed on 4.8.2014. Thus, after execution of the rent agreement, the police has been informed immediately after one day. There is no contention of the complainant that he has not signed that form which is to be submitted before the police. It also appears from the documentary evidence that there is a dispute to the period for which the premises of the landlord has been given on rental basis to co-accused Nitinkumar. It is not the case of the prosecution that this document has been forged by the present petitioner himself. 16. It also appears from the record that the petitioner has notarized the document in question, of-course has not taken signature of the landlords in his register and for that lapse, he has contended that the tenant had informed him that the landlord is coming behind him and he would sign in the register. This shows that there is some short of lapses on the part of the notary, who notarized the document. Considering Section 13 of the Notaries Act, 1952, there is a bar to take cognizance of the offence against the notary. Now, it is an undisputed position that no complaint as envisaged under Section 13 of the Act is filed against the notarypresent petitioner. 17. The Supreme Court in the case of R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 , has laid down certain categories of cases wherein inherent jurisdiction to quash the proceedings can and should be exercised. One of the said categories is where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may for instance, furnish cases under this category. 18.
One of the said categories is where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may for instance, furnish cases under this category. 18. In view of the aforesaid legal position, coupled with the fact that no complaint under Section 13 as envisaged is filed against the present petitioner, in the facts and circumstances of the case, this is a fit case for exercise of the inherent jurisdiction to quash the proceedings insofar as the present accused- petitioner is concerned. 19. Resultantly, the petition is allowed. The impugned FIR, being being C.R. No.I-76 of 2017 registered with Chandkheda Police Station, Gandhinagar for the offences punishable under Sections 406, 420, 467, 468, 471, 120(B) and Section 506 of the Indian Penal Code and other incidental proceedings thereof qua the present petitioner are quashed and set aside. The impugned FIR and the incidental proceedings for the other accused may be continued. Rule is made absolute accordingly. Direct Service is permitted.