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2022 DIGILAW 1767 (GUJ)

Nayanbhai Ramchandra Desai v. State of Gujarat

2022-12-15

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. Rule, returnable forthwith. Ms. Maithili D. Mehta, learned APP waives service of notice of Rule on behalf of the respondent – State. 2. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973, the applicant herein has prayed for quashing of F.I.R. being C.R. No. I- 04 of 2017 registered at Mandvi Police Station, District : Surat Rural, on 12.01.2017 for the offence punishable under Sections 406, 420, 465, 467, 468, 471, 120-B and 114 of Indian Penal Code against the applicant herein-accused no.23. 3. The brief facts germane for adjudication of the present application are stated thus: 3.1. It is the case of the prosecution that all the accused persons in collusion with others had prepared one power of attorney dated 24.04.2002 for grabbing the land bearing Survey No. 314 situated at Village: Bodhan, Taluka: Mandvi and on 25.03.2002, the co-owners of the said land brought two persons in place of deceased Moh. Musa and Hafizbibi before the notary, though they were deceased, at that point of time, and prepared power of attorney and accused nos. 16 and 17 had signed as witnesses and the accused no.23- present applicant has notarized the said document and on the basis of the power of attorney, the registered sale deed was executed in favour of accused no.20- Bharatbhai Shambhubhai Patel, and thus, all the accused committed the offence as alleged in the complaint, as referred above. 3.2. The present applicant is accused no. 23 and is an Advocate and Notary. The applicant herein has a valid license of Notary from the year 1987 and he is practicing advocate since the year 1975 before the competent court situated at Vyara. 3.3. The applicant herein has notarized the documents, as a part of his duty and the documents were notarized after the witnesses have identified the after signatures of all the persons, who have executed power of attorney. The Notary (present applicant) has not to decide regarding the correctness of the contents made in the document and he has simply notarized the document, after the witnesses to the said document have identified and identified the witnesses. 3.4. The Notary (present applicant) has not to decide regarding the correctness of the contents made in the document and he has simply notarized the document, after the witnesses to the said document have identified and identified the witnesses. 3.4. There is a bar under Section 13 of the Notaries Act, 1952 to the effect that no Court shall take cognizance of the 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 authorized by the Central Government or a State Government by general or special order in this behalf. No Magistrate other than a presidency Magistrate of the first class shall try an offence punishable under this Act. 4. SUBMISSIONS ON BEHALF OF THE APPLICANT: 4.1. Ms. Kruti M. Shah, learned counsel appearing for the applicant, at the outset submitted that the applicant has a valid license and is protected under Section 13 of the Notaries Act, and hence, the impugned F.I.R. is not maintainable against the present applicant, who has only notarized the documents i.e. power of attorney, which is alleged to contain to forged signature of the two co-owners. 4.2. Ms. Shah, learned counsel submitted that the applicant has nothing to do with the private dispute of the property between the complainant and other accused persons. Ms. Shah, learned counsel further submitted that there is no allegation against the applicant herein that he has prior knowledge of fraud and there is noting on record that the present applicant is benefited by disputed transactions and taking the case of the prosecution as it is, no offence as alleged in the complaint is made out against the applicant herein. 4.3. Ms. Shah, learned counsel has also placed reliance on the order passed by this Court dated 09.06.2021 in Criminal Misc. Application No. 20274 of 2019, wherein, the coordinate bench has quashed the F.I.R. filed against accused -Notary Advocate. Ms. Shah, learned counsel further placed reliance on the order dated 01.10.2018 passed by the coordinate bench passed in Criminal Misc. Application No. 18417 of 2018, wherein, the coordinate bench has quashed the impugned F.I.R. with respect to other co-accused, for the reason that the parties had arrived at settlement and F.I.R. is quashed with the consent. 4.4. For the aforesaid reasons also, Ms. Application No. 18417 of 2018, wherein, the coordinate bench has quashed the impugned F.I.R. with respect to other co-accused, for the reason that the parties had arrived at settlement and F.I.R. is quashed with the consent. 4.4. For the aforesaid reasons also, Ms. Shah, learned counsel submitted that, since the F.I.R. in question is quashed by consent between the complainant and other co-accused, the present applicant is merely performing his duty as a Notary, the impugned F.I.R. in question is also required to be quashed qua the present applicant. 4.5. Ms. Shah, learned counsel submitted that the applicant herein would stand at the better footing, and therefore, the complaint in question is required to quash and set aside qua the present applicant, over and above, the fact that the applicant herein has protection under Section 13 of the Notaries Act. 5. SUBMISSIONS ON BEHALF OF THE RESPONDENT - STATE: 5.1. Ms. Maithili D. Mehta, learned APP appearing for the respondent – State submitted that though the applicant was performing his duty as a Notary, the document in question was a forged document, which was notarized by the applicant herein, and therefore, she relied on Section 85 of the Evidence Act and submitted that the complaint in question may not be quashed and for the documents in question, the evidence is required to be led before the concerned Court. 6. Having heard the learned counsels appearing for the respective parties and the facts as stated above being uncontroverted facts, the same are not reiterated. 7. At this stage, it is apposite to refer to Section 13 of the Notaries Act, 1952. Section 13 of the Act reads thus: “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 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.” 8. (2) No Magistrate other than a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this Act.” 8. A plain reading of Section-13 of the Act, 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 authorized 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 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 or allegedly 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 Court can take cognizance of such offence only if the complaint is registered in the manner / procedure laid down in the Section. 9. POSITION OF LAW: 9.1. The Supreme Court in the case of R.P. KAPUR VS. STATE OF PUNJAB [AIR 1960 SC Page 866] has laid down certain categories of cases wherein inherent jurisdiction to quash 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. 9.2. At this stage it is apposite to refer to the Criminal Misc. Application (for quashing) No. 13067 of 2015, the relevant para 8 and 9 reads thus: “I am told that charge-sheet has been filed in the month of September 2015. Absence of the requisite sanction may, for instance, furnish cases under this category. 9.2. At this stage it is apposite to refer to the Criminal Misc. Application (for quashing) No. 13067 of 2015, the relevant para 8 and 9 reads thus: “I am told that charge-sheet has been filed in the month of September 2015. If that be so, then the Court could not have taken cognizance against the applicant herein of the alleged offence in view of Section 13 of the Notaries Act, 1952. I am supported in my view by a decision of a learned Single Judge of this Court in the case of Ashokbhai Rameshchandra Ghantivala v. State of Gujarat and another, 2009(2) GLH 491 , wherein the following has been observed : “8. Heard the learned advocates for the parties. Having regard to the submissions advanced by the learned advocates for the parties, this court is of the view that it is not necessary to enter into merits of the allegations made in the chargesheet or in the F.I.R. as the same could have bearing on the final outcome of the proceedings emanating from the F.I.R. However, examining the main contention raised by the learned advocate for the petitioner namely, that in view of the provisions of Section 13 of the Act, the court could not have taken cognizance of the complaint except as provided under the said provision, it would be necessary to refer to the provisions of Section 13 of the Act which reads 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 in 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. 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 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. 9. The Supreme Court in the case of R.P. KAPUR VS. STATE OF PUNJAB [AIR 1960 SC Page 866] has laid down certain categories of cases wherein inherent jurisdiction to quash 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. 10. The aforesaid decision of the Supreme Court would be directly applicable to the facts of the present case inasmuch as there is a legal bar against taking cognizance of an offence against a notary unless the requirements of Section 13 of the Act are satisfied. It is an undisputed position that no complaint as envisaged under Section 13 of the Act has been made against the petitioner. It is an undisputed position that no complaint as envisaged under Section 13 of the Act has been made against the petitioner. In the circumstances, this is a fit case for exercise of inherent jurisdiction to quash the proceedings insofar as cognizance has been taken by the learned Judicial Magistrate First Class, Surat.” In any view of the matter, not only Section 13 of the Notaries Act, 1952, comes into play, but as observed above, the Handwriting Expert's opinion destroys practically the entire case of the first informant. In the result, this application is allowed. The further proceedings of the Criminal Case No.7966 of 2015 pending in the Court of the learned Judge at Ahmedabad (Rural), Mirzapur, is hereby ordered to be quashed so far as the applicant is concerned. The case shall proceed further in accordance with law so far as the other co-accused are concerned. 9.3. In the case of Ashokbhai Rameshchandra Ghantivala v/s. State of Gujarat reported in 2009 (2) GLH 491 , relevant para-6 and 7 reads thus: “6. Heard the learned advocates for the parties. Having regard to the submissions advanced by the learned advocates for the parties, this court is of the view that it is not necessary to enter into merits of the allegations made in the charge-sheet or in the F.I.R. as the same could have bearing on the final outcome of the proceedings emanating from the F.I.R. However, examining the main contention raised by the learned advocate for the petitioner namely, that in view of the provisions of Section 13 of the Act, the court could not have taken cognizance of the complaint except as provided under the said provision, it would be necessary to refer to the provisions of Section 13 of the Act which reads 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 in writing made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. 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 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 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. The Supreme Court in the case of R.P. KAPUR VS. STATE OF PUNJAB [AIR 1960 SC Page 866] has laid down certain categories of cases wherein inherent jurisdiction to quash 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. 7. 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. 7. The aforesaid decision of the Supreme Court would be directly applicable to the facts of the present case inasmuch as there is a legal bar against taking cognizance of an offence against a notary unless the requirements of Section 13 of the Act are satisfied. It is an undisputed position that no complaint as envisaged under Section 13 of the Act has been made against the petitioner. In the circumstances, this is a fit case for exercise of inherent jurisdiction to quash the proceedings insofar as cognizance has been taken by the learned Judicial Magistrate First Class, Surat.” 10. The applicant herein in the present application is having a valid license of Notary which is produced at Annexure- B, page-19. Further, the F.I.R. in question, is quashed by the coordinate bench by an order dated 01.10.2018 in Criminal Misc. Application No. 18417 of 2018 in case of co-accused. The relevant paras of the said order reads thus: “2. This application under Section 482 of the Criminal Procedure Code is filed for quashing of FIR being I-CR No.04 of 2017 registered with Mandvi Police Station, Surat (Rural) for offences under Sections 406, 420, 465, 467, 468, 471, 120B and 114 of the Indian Penal Code and consequential case being Criminal Case No.1033 of 2017 pending before Chief Judicial Magistrate, Mandvi, on the ground of settlement arrived at between the parties. 7. In view of the aforesaid, the application is allowed. FIR being I-CR No.04 of 2017 registered with Mandvi Police Station, Surat (Rural) and consequential case being Criminal Case No.1033 of 2017 pending before Chief Judicial Magistrate, Mandvi are ordered to be quashed. 11. At this stage, this Court deems it fit to refer to the relevant paras of the order dated 09.06.2021 passed by the coordinate bench in Criminal Misc. Application No. 20274 of 2019, which reads thus: “3. Few facts relevant for consideration of the present petition are stated hereinbelow: 3.1 The family dispute arose between the complainant and accused nos.1 to 3. The complainant is the son of accused no.3 and brother of accused nos.1 and 2. Application No. 20274 of 2019, which reads thus: “3. Few facts relevant for consideration of the present petition are stated hereinbelow: 3.1 The family dispute arose between the complainant and accused nos.1 to 3. The complainant is the son of accused no.3 and brother of accused nos.1 and 2. The present applicant being a Notary has been arrayed as accused no.4 in the context of Power of Attorney which was executed on 21.05.2004 in favour of the father – accused no.3. The F.I.R. was lodged and charge-sheet came to be filed. 3.2 The record shows that vide order dated 07.08.2019 in Special Criminal Application No.5101 of 2019, the impugned F.I.R. came to be quashed by this Court qua the father – Jivrajbhai Vastabhai Desai, and by order dated 07.08.2019 in Special Criminal Application No.5102 of 2019 the F.I.R. was quashed qua the other two accused, who are the brothers of the complainant. 10. In case of Ashokbhai Rameshchandra Ghantivala (supra), it has been observed by this Court that Section 13 of the Notaries Act, 1952 puts a mandate on the Court of not taking any cognizance of the offence committed by a Notary in exercise or purported exercise of powers under the Notary Act, without any complaint in writing by an Officer authorized by the Central Government or the State Government who has been authorized by general or special order to make such complaint. In this case, the Charge-Sheet has been filed on the basis of the FIR which has been registered. No complaint by Officer from the Central Government or the State Government has been made for the Court to take cognizance against the present applicant as a Notary. 11. The Notaries Act, 1952 came into force, with the object to empower the Central and State Government to appoint Notaries, not only for the limited purposes of the negotiable Instruments Act, but generally for all recognized notarial purposes and to regulate the profession of such Notaries. The Central Government, for the whole or any part of India and any State government, for the whole or any part of the State, may appoint as Notaries any legal practitioners or other persons who possess such qualifications as may be prescribed. Section 4A is inserted by an amendment in regard to the State of Gujarat. It makes special provision regarding registered Notaries in Gujarat. Section 4A is inserted by an amendment in regard to the State of Gujarat. It makes special provision regarding registered Notaries in Gujarat. Section 8 of the Notaries Act, 1952 lays down the functions of Notaries and Section 10 gives the authority to the Government appointing any Notary by order, to remove from the Register maintained by it under Section 4 the name of the Notary; if is found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practice as a Notary, or if is found to be convicted for an offence involving moral turpitude. Section 13 of the Act, read as a whole, provides necessary protection to the Notary since the Court becomes entitled to take cognizance of the offence committed by a Notary in exercise or purported exercise of his functions under this Act, only by complaint in writing from Officer authorized by the Central Government or a State Government. The character, integrity, ability and competence of any person, applying for appointment as a Notary is verified in accordance to the Rules made by the Central Government which are notified in the official gazette for the purpose of Notaries Act. 14. Here in this case, no cognizance can be taken against the present applicant in terms of Section 13 of the Notaries Act, 1952. It is apparent from the provisions of Section 13 of the Notaries Act that if the offence is committed by 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 and the Court can take cognizance of such offence only if the complaint is made in the manner laid down in the Section. There is no allegation of any moral turpitude. The co-accused, who are reported as father and sons have already resolved their family disputes. The alleged document of Power of Attorney has been affirmed and accepted as genuine. The complainant has no grievance of any allegation of its being forged. The prosecution appears to be malafide, it is solely with an intention to harass the petitioner since the law does not permit cognizance of offence without following prescribed procedure against the Notary which is a condition precedent. The complainant has no grievance of any allegation of its being forged. The prosecution appears to be malafide, it is solely with an intention to harass the petitioner since the law does not permit cognizance of offence without following prescribed procedure against the Notary which is a condition precedent. None could be permitted to browbeat the Court proceedings with the weapon of harassment of prosecution and the inherent power of the High Court designed to achieve solitary purpose. The facts, circumstances and the development in the case justifies the quashing of the F.I.R., Charge-Sheet and the other proceedings before the J.M.F.C. against the present applicant. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the applicant for securing the ends of justice.” 12. Considering the ratio as laid down by the Hon’ble Supreme Court, as also decisions of this Court and considering the facts of the present case, the applicant herein is a public Notary and is holding a valid license, there is a legal bar against taking cognizance of an offence against a Notary unless the requirements of Section 13 of the Act are satisfied. In the facts of the present case, the requirement as envisaged under Section 13 of the Act has not been satisfied and no complaint under Section 13 of the Act has been made against the writ-applicant herein. Under such circumstances, this Court deems it fit to exercise its inherent jurisdiction to quash the proceedings of impugned F.I.R. qua the present applicant. Further, the dispute between the co-accused has been settled and the impugned F.I.R. has been quashed with consent of the parties, by order dated 01.10.2018 passed by the coordinate bench of this Court in Criminal Misc. Application no. 18417 of 2018. The dispute itself has been settled between the parties and the applicant herein is a Notary, this Court is inclined to quash the impugned F.I.R. qua the present applicant. 13. For the aforesaid reasons, the impugned F.I.R. being C.R. No. I-4 of 2017 registered at Mandvi Police Station, District : Surat Rural is hereby quashed and set aside qua the present applicant. 13. For the aforesaid reasons, the impugned F.I.R. being C.R. No. I-4 of 2017 registered at Mandvi Police Station, District : Surat Rural is hereby quashed and set aside qua the present applicant. The charge-sheet and Criminal Case, if filed / pending before the concerned Court also stands terminated qua the present applicant, for the reasons that the present applicant is a registered Public Notary and cognizance could not have been taken against the present applicant, without following the procedure as contemplated under Section 13 of the Notaries Act. The present application stands allowed. Rule is made absolute. Direct service is permitted.