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2019 DIGILAW 89 (KAR)

Ashok R. Hiremath v. Vijayamala

2019-01-08

H.P.SANDESH

body2019
JUDGMENT : H.P. SANDESH, J. 1. I have heard the arguments of the learned counsel appearing for the petitioner and learned counsel appearing for respondent Nos.1 and 2 and also learned Government Pleader for respondent No.3. 2. The brief factual matrix of the case is that respondent Nos.1 and 2 have filed a suit in O.S.No.34/1995, before the Senior Civil Judge Court Gokak, for partition and separate possession and obtained a decree for their 1/5th share each in respect of the family properties. The allegation made in the complaint is that respondents have hatched a plan to deprive the complainants from their share in the said properties and created a documents which is styled as consent letter or kabuli patra by forging and fabricating the signatures of the complainants though the complainant have not at all executed the said alleged kabuli patra before any notary advocate. But all the accused including this petitioner have indulged in creating and concocting the document and produced the same before the revenue authorities and got the name of complainants deleted from the revenue records. Therefore, the said complaint is filed before the Judicial Magistrate First Class, Raibag. 3. The allegation made in the private compliant against this petitioner is that with the common fraudulent & dishonest intention of depriving the complainants of their right on the above said properties created false documents styled as Consent Letter/Kabuli Patra and this petitioner being the notary did not ascertain whether the parties should have appeared before him are the complainants or not and attested the documents. Hence, a private complaint is filed against him also. 4. The contention of the petitioner in this petition is that the petitioner is a notary and advocate and he attested the document when the document has been placed before him, he was not aware of whether there was any impersonation before him and issuance of process against him is contrary to law and untenable that too for the offence under Sections 463, 464, 468, 471 r/w 149 of IPC. The registration of criminal case against the petitioner based on the complaint is nothing but abuse of process of law and it appears there are civil disputes between the parties and proceedings against this petitioner as that he indulged in creation of document is nothing but proceeding against the person who has not indulged any intentional act and only discharges his duties as notary public when the document is presented before him for attestation. Hence, prayed this Court to quash the order at Annexure-B dated 16.01.2014 passed by the learned Prl. Civil Judge & JMFC, Raibag. 5. Learned counsel for the petitioner in his arguments has also reiterated the grounds urged in the petition and further contended that when the similar petition was filed before this Court on behalf of accused Nos.5 to 6. This Court in Criminal Petition No.100440/2014, quashed the proceedings against accused nos.5 and 6, who are the witnesses to the alleged documents and did not consider request of accused Nos.1 to 4 on the ground that there are materials to proceed against accused Nos.1 to 4 since they are the beneficiaries of the document. He was not having any intention to either cheat or by creation of document. Hence, prayed this Court to exercise the powers under Section 482 of Cr.P.C. 6. Per contra, learned counsel appearing for respondent Nos.1 and 2 in his arguments has vehemently contended that this petitioner without ascertaining whether the parties are the complainants before him, he indulged in attesting the document by putting his signature and seal on the document and before attesting the document, he ought to have been ascertained whether they are the complainants or any impersonation and the same has not been done and in colluding with accused Nos.1 to 4, he indulged in creation of the document. Hence, there are prima facie materials to proceed against this petitioner. The court also considering the material on record taken the cognizance against this petitioner for the offence under Section 463, 464, 468 and 471 r/w 149 of IPC. Hence, this Court cannot exercise the powers under Section 482 of Cr.P.C., to quash the same. 7. After having heard the learned counsel for the petitioner and learned counsel for respondent Nos.1 and 2 and also learned High Court Government Pleader for respondent No.3, this Court has to examine wither the proceedings can be continued against this petitioner. 8. Hence, this Court cannot exercise the powers under Section 482 of Cr.P.C., to quash the same. 7. After having heard the learned counsel for the petitioner and learned counsel for respondent Nos.1 and 2 and also learned High Court Government Pleader for respondent No.3, this Court has to examine wither the proceedings can be continued against this petitioner. 8. On perusal of the factual matrix of the case and also the complaint which has been annexed as Annexure-A, the allegation is made against this petitioner that in colluding with accused Nos.1 to 4, he indulged in creating of document with the common dishonest intention of depriving the rights of the complainants and forged the signature of the above complainants and created false document styled as Consent Letter/Kabuli Patra and indulged in forging and fabricating the signatures of complainant and it appears that they have also made some persons to impersonate the complainants and further got created the document. On perusal of the complaint, there is no any specific allegation against this petitioner that he indulged in fabricating the document by forging the signatures of the complainants. It appears that they have also made some persons to impersonate the complainants and there is no specific allegation that this petitioner has created and forged the signature. The offence alleged against this petitioner and others and also cognizance taken in respect of the offence under Sections 463, 464, 468, 471 r/w 149 of IPC and the offences are punishable up to seven years. Having taken note of the job of a notary and also practicing as an advocate, the duty cast upon him to attest the document which has been placed before him. No doubt, he has to ascertain whether the executors of the document are the parties and document was notarized at Raibag and the complainants are the residents of Belagavi. The Court also cannot expect the notary that he was having acquaintance with the residents of Belagavi and if any person comes before the notary making that they themselves are the parties. After obtaining the signatures the notary attested the document. It is also important to note that the witnesses who have been attested the documents of the alleged kabuli patra have been availed the benefit of Section 482 of Cr.P.C. and the proceedings initiated against those persons are also quashed by this Court in Criminal Petition No.100440/2014. 9. After obtaining the signatures the notary attested the document. It is also important to note that the witnesses who have been attested the documents of the alleged kabuli patra have been availed the benefit of Section 482 of Cr.P.C. and the proceedings initiated against those persons are also quashed by this Court in Criminal Petition No.100440/2014. 9. Learned counsel appearing for the respondents in his arguments contends that mere quashing of the proceedings against accused Nos.5 and 6 cannot be granted and it is not bail petition applying the parity and they cannot get the benefit of quashing. 10. I have already pointed out that it is not specific allegation against this petitioner that he himself involved in creating of document and fabricating the signatures of the complainant and allegation is colluding with accused Nos.1 to 4 committed an offence, when such being the case, when specific allegation is made against other accused Nos.1 to 4 have created false document and fabricated the signatures of the complainant and placed before the notary for attestation and only he has done the job by attesting and not indulged in fabricating of the document. If such notary is implicated for attesting of the document and no end to the criminal proceedings and he made his duty as notary and his limited scope of the job is only to attestation of the document and if any other persons have played fraud and involved in creating of document. The proceedings has to continue against them since they are the beneficiaries and there cannot be a criminal proceedings against this petitioner. However, it is the duty cast upon the notary also to ascertain the same. Hence, having taken note of the factual aspects of the case and allegations made in the complaint and also on perusal of the order of the Magistrate in initiating the proceedings against this petitioner and also there is no any specific order with regard to the order that he has applied the judicial mind by taking cognizance against the notary public and order has been passed making the reference in prosecuting the offence under Sections 465, 463, 464, 468, 471 r/w 149 of IPC and there must be a categorical allegation in the complaint. I do not find any such categorical allegation against this petitioner to invoke the offences against this petitioner. I do not find any such categorical allegation against this petitioner to invoke the offences against this petitioner. Hence, I am of the opinion that if the criminal proceedings are continued against notary public, it is nothing but abuse of process of law and miscarriage of justice. 11. In view of the discussions made above, I proceed to pass the following: ORDER The petition is allowed. The proceedings initiated against this petitioner is hereby quashed for the offences punishable under Sections 465, 468, 471 r/w 149 of IPC.