Gujarat High Court
Jaysinh Amarsinh Patel vs State Of Gujarat on 6 October, 2023
NEUTRAL CITATION
R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 419 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYSINH AMARSINH PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR K J PANCHAL, ADAVOCATE FOR
MR VC VAGHELA(1720) for the Applicant(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 06/10/2023
ORAL JUDGMENT
1. By filing present petition under Article 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 04.01.2014 passed in Criminal Page 1 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined Revision Application No.57 of 2013 by 2 nd Additional Sessions Judge, Ankleshwar, Dist:Bharuch.
2. The facts and circumstance giving rise to filing of present petition are as under:-
2.1 On 31.10.2012, an FIR being I.C.R.NO.111 of 2012 came to be registered with Ankleshwar (Rural) Police Station for the offences punishable under Sections 406, 409, 420, 463, 465, 466, 467, 468, 471, 201 and 120(B) of the Indian Penal Code, 1860 (herein after referred to as the "IPC").
2.2 The petitioner herein was arraigned as an accused in the aforesaid FIR for the offences mentioned herein above.
2.3 The Investigating Agency, after conclusion of the investigation, filed charge-sheet against the present applicant as well as other co-accused persons for the aforesaid offences.
2.4 After filing of the charge-sheet, the present applicant preferred an application under Section 239 of the Code of Criminal Procedure, 1973 (herein after referred to as the "Code") before the Trial Court for discharge.
2.5 The Trial Court, vide its order dated 30.04.2013 was pleased to allow the said discharge application and the present petitioner was discharged of the offences.Page 2 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023
NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined 2.6 Being aggrieved by and dissatisfied with the said order, the prosecution had preferred Criminal Revision Application No.57 of 2013 (Old No.75 of 2013) before the Sessions Court, Ankleshwar, Dist:Bharuch.
2.7 The 2nd Additional Sessions Judge, Ankleshwar at Bharuch was pleased to allow the said application vide its order dated 04.01.2014, whereby the order passed by the Trial Court below application Exh.24 i.e. the discharge application was quashed and set aside and charge for the aforesaid offences was ordered to be framed against the present petitioner.
3. Being aggrieved by and dissatisfied with the same, the petitioner has preferred the present petition.
4. Learned advocate for the petitioner has submitted that the petitioner is a practicing Advocate and a Notary operating at Ankleshwar. The petitioner was empanelled as an advocate on the panel of State Bank of India, Sajod Branch. The only role attributed to the petitioner in the present offence is to the effect that he had issued a Title Clarence Certificate in favour of the persons, who had applied for loan to the complainant-bank.
4.1 Learned advocate for the petitioner has submitted that the title loan amount which was disbursed by the bank, was to the tune of Rs. 1,89,00,000/- out of which 1,16,00,420/- has already been recovered.
4.2 Learned advocate for the petitioner has submitted that the petitioner had issued Title Clearance Certificate in question on Page 3 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined the basis of the documents, which were forwarded to him by the officers of the bank, who have also been arraigned as an accused in the present offence. There is nothing on record to indicate that the documents in question were forged by the present petitioner or the petitioner had played any role in getting the said documents forged.
4.3 Learned advocate for the petitioner has submitted that upon perusal of the entire record and charge-sheet, there is nothing on record to indicate any criminal conspiracy having been hatched by the present petitioner in collusion with the officers of the bank.
4.4 Learned advocate for the petitioner has submitted that the petitioner is also alleged to have notarized the power of attorney by impersonation. He further submitted that as per the provisions of the Notaries Act, the cognizance of the offence against the person, who has been operating as a Notary for the acts done in course of his job as a Notary, can be taken only on the basis of the complaint made by the government. In the present case, no such complaint has been lodged either by the Central Government or the State Government and the act alleged against the present petitioner is during the course of his operation as a Notary. Therefore, there is a clear bar against the cognizance of the offence against the present petitioner.
4.5 Learned advocate for the petitioner has submitted that while passing the impugned order, the Sessions Court has relied upon the statements of the co-accused recorded during the Page 4 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined course of investigation. As per the settled legal position, after the investigation is over and charge-sheet is filed, the statements of the co-accused cannot be taken into consideration against the present petitioner. Thus, the Sessions Court has committed a grave error in passing the impugned order.
4.6 Learned advocate for the petitioner has submitted that there has been no recovery or discovery of any muddamal article attributed to the present petitioner during the course of investigation. There is no other material to connect the present petitioner with the offence in question. The conduct on the part of the present petitioner in not verifying the records of the Revenue Authorities, Sub-Registrar etc. can at best be said to be negligence on his part and due to this conduct on the part of the petitioner, no criminality can be attached in the absence of any other material. He, therefore, submitted to allow the present petition by quashing and setting aside the impugned order and discharge the petitioner of the offence in question.
5. Learned advocate for the petitioner seeks to rely upon the the judgment of Apex Court in case of Central Bureau of Invesgiation, Hydrabad Vs. K.Narayana Rao reported in 2012 (3) G.L.H.373 and the judgment of this Court in case of Central Bureau of Investigation Vs. Shaukat Barkatali Keshvani & Anr. passed in Criminal Revision Application No.460 of 2008.
6. Learned APP has opposed the present petition, inter aila, contending that the conduct on the part of the present petitioner in not verifying the relevant records reflects his connivance with Page 5 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined the other co-accused persons.
6.1 Learned APP has submitted that since the petitioner had colluded with the other co-accused persons, the conduct on his part in notarizing the power of attorney in question would not fall in the purview of Section 13 of the Notaries Act, and therefore, there is no bar for taking cognizance against the present petitioner. He, therefore, submitted that the Sessions court cannot be said to have committed any error in passing the impugned order. He, therefore, submitted to dismiss the present petition.
7. Learned APP has relied upon the judgment of this Court in case of Mohammaed Yusuf Kasam Kalavat Vs. State of Gujarat & Anr. passed in Criminal Misc.Application NO.1934 OF 2011.
8. Learned advocate for the respondent no.2 has also opposed the present petition, inter alia, contending that the petitioner had issued Title Clearance Certificate in question without due verification of the relevant records. Therefore, it can be gainsaid that the petitioner had conspired with the other co-accused persons and was instrumental for commission of the offence in question. He, therefore, submitted to dismiss the present petition.
9. Heard learned advocates for the parties and perused the material available on record. In the present case, the role attributed to the present applicant is to the effect that certain co- accused had applied to the complainant-bank for loan and they Page 6 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined had approached the officers of the bank, who are arraigned as accused in the present offence. The co-accused - bank officers forwarded the documents supplied by the relevant applicants for loan to the present petitioner and asked him to issue "Title Clearance Certificate" on the basis of the documents forwarded to him. The petitioner, in turn, issued the Title Clearance Certificate on the basis of the said documents and on that basis; the loan amount was disbursed by the complainant bank to the concerned applicants. Subsequently, it came to the notice of the bank that the documents produced by the relevant applicants were not genuine and thus, the FIR in question came to be lodged against the accused persons including the present petitioner. The role attributed to the present petitioner in the entire offence is very limited of issuing a Title Clearance Certificate. It is alleged in the FIR that the petitioner had notarized certain power of attorneys where persons, who had signed the power of attorneys had impersonated as some other persons.
10. As per the case of prosecution, the present petitioner and the officers of the bank had conspired for commission of the offence in question and as a part of the said conspiracy, officers of the bank had forwarded the documents to the present petitioner knowing fully well that the documents were not genuine and the petitioner, on the basis of such documents, had issued the Title Clearance Certificate. Upon perusal of entire record of charge-sheet, there is nothing on record to indicate any conspiracy having been hatched by the present petitioner with the co-accused - officers of the bank nor is there anything on Page 7 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined record to indicate any meeting of minds between the petitioner and the officers of the bank for commission of the offence in question. The Sessions Court, while passing the impugned order, has taken assistance from the statements made by the co- accused during the course of investigation to hold the aspect of conspiracy against the present petitioner. As per the settled legal position, when the investigation was over and charge-sheet was filed against the present petitioner for the offence in question, there ought to have been an independent record indicating conspiracy between the petitioner and the other co-accused. The Sessions Court ought not to have resorted to the statements of co-accused for holding the aspect of conspiracy against the present petitioner in the absence of any such independent material. The record of investigation clearly indicates that the Title Clearance Certificate in question was issued by the present petitioner on the basis of the documents, which were forwarded to him by the officers of the bank. It was incumbent upon the officers of the bank to check the veracity of the documents before sending them to the present applicant for procuring Title Clearance Certificate. The officers of the bank do not appear to have verified the genuineness of the said documents before sending them to the present petitioner. The record also indicates that the documents, which were forwarded to the present petitioner, were also signed and stamped and therefore, there was reason for the petitioner to believe that the documents in question were genuine and had issued a Title Clearance Certificate after studying the said documents. There is nothing on record to indicate that the petitioner was duty bound to verify the documents forwarded to him. On the contrary, the guidelines Page 8 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined issued by the complainant bank indicate that it was incumbent upon the officers of the bank to verify the documents before forwarding them to the present petitioner. Thus, the officers of the bank appear to have failed in performing their duties. It may be true that the petitioner was required to verify the records of the Revenue Authorities and the Sub-Registrar Office before issuing the Title Clearance Certificate. The petitioner had not done any such verification, however, as discussed herein above when the documents in question were forwarded to him by the officers of the bank, which were duly signed and stamped, there was no reason for the petitioner to doubt or disbelieve the said documents and had thus, issued a Title Clearance Certificate on the basis of the same. The conduct of the part of the present petitioner in not checking the records of the revenue authorities and the sub registrar, at best can be said to be negligence on his part. The record is absolutely silent as regard criminal intention on the part of the present petitioner.
11. It is alleged against the present petitioner that he had notarized the power of attorney in the name of Laxmi Damjibhai Vasava, who had expired long back by affixing a photograph of one Lalitaben Ramubhai Vasava. In this regard also, having verified the papers of the investigation, the record is absolutely silent as regard any criminal intention on the part of the present petitioner. The person, who was produced before the present petitioner was identified as Laxmiben Damjibhai Vasava and thus, the applicant had notarized the power of attorney in question. Section 13 of the Notaries Act, 1952 more particularly sub-section (1) of the Act reads as under:-
Page 9 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined "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 authorized by the Central Government or a State Government by general or special order in this behalf."
The offence alleged against the present applicant is purely during his exercise as a Notary, and therefore, bar under Section 13(1) of the Act would clearly apply to the facts of the present case.
12. This Court in its judgment in case of Ashokbhai Rameshchandra Ghantivala v/s State of Gujarat & Anr. reported in 2009 (2) G.L.H. 491 has observed as under:
"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 objects 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"Page 10 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023
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13. Before the Apex Court in case of Central Bureau of Invesgiation, Hydrabad (supra), the facts were absolutely similar to that of the present case and the applicant before the Apex Court was also arraigned as an accused, as he had issued a legal opinion as regards title for disbursement of loan. In the said judgment, the Apex Court has observed as under:-
"10. .... It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."
14. In Paragraph No.16 of the judgment, the Apex Court has observed as under:-
"16. .... It is not in dispute that the respondent is a practicing advocate and according to Mr. Venkataramani, he has experience in giving legal opinion and has conducted several cases for the banks including Vijaya Bank. As stated earlier, the only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question. It is the definite stand of the respondent herein that he has rendered Legal Scrutiny Reports in all the cases after perusing the documents submitted by the Bank. It is also his claim that rendition of legal opinion cannot be construed as an offence. He further pointed out that it is not possible for the panel advocate to investigate the genuineness of the Page 11 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined documents and in the present case, he only perused the contents and concluded whether the title was conveyed through a document or not. It is also brought to our notice that LW-5 (Listed Witness), who is the Law Officer of Vijaya Bank, has given a statement regarding flaw in respect of title of several properties. It is the claim of the respondent that in his statement, LW-5 has not even made a single comment as to the veracity of the legal opinion rendered by the respondent herein. In other words, it is the claim of the respondent that none of the witnesses have spoken to any overt act on his part or his involvement in the alleged conspiracy. ..."
15. Learned APP has sought to rely upon the judgment of this Court in case of Mohammaed Yusuf Kasam Kalavat , wherein in Paragraph No.5.1, the Court has observed as under:-
"[5.1] Considering the aforesaid decision of the Hon'ble Supreme Court, the complaint/FIR cannot be quashed and set aside considering the Section 13 of the Notaries Act, 1952. At the most, Section 13 of the Notaries Act, 1952 can be made applicable at the time of taking cognizance by the concerned Court/Magistrate. From plain reading of Section 13 of the Notaries Act, 1952, it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence against the Notary."
In present case, the investigation is over and charge-sheet is also filed, and thereafter, the applicant had preferred an application for discharge under Section 213 of the Code. Thus, the issue has arisen at the time of taking cognizance of the offence against the present applicant, and therefore, this judgment would be of no help to the prosecution.
16. while dealing with the revision application, it was incumbent upon the Sessions Court to see as to whether any error was committed by the Trial Court while allowing the discharge application, whether material collected during the Page 12 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023 NEUTRAL CITATION R/SCR.A/419/2014 JUDGMENT DATED: 06/10/2023 undefined course of investigation was duly considered by the Trial Court or not. While considering the revision application, as discussed herein above, the Sessions Court itself has committed an error in relying upon the statements of the co-accused, which in the eye of law was not permissible.
17. Under the circumstances, the present petition is allowed. The order dated 04.01.2014 passed in Criminal Revision Application No.57 of 2013 by 2nd Additional Sessions Judge, Ankleshwar, Dist:Bharuch is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(M. R. MENGDEY,J) GIRISH Page 13 of 13 Downloaded on : Sat Oct 07 20:45:02 IST 2023