Gujarat High Court
Amarsinh Ramsinh Zala vs State Of Gujarat on 22 June, 2023
NEUTRAL CITATION
R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12660 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AMARSINH RAMSINH ZALA
Versus
STATE OF GUJARAT
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Appearance:
MR YASH K DAVE(10269) for the Applicant(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/06/2023
ORAL JUDGMENT
1. By way of present application, under Article 226 of the Constitution of India as well as under Section 482 of the Page 1 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined Code of Criminal Procedure, 1973, the applicant seeks quashment of the order impugned dated 12.05.2017 passed below Exh.7 in Criminal Case No.3 of 2016 pending before the learned Judicial Magistrate, First Class, Khambhat, which is arising from the charge-sheet submitted in connection with the FIR being C.R.-I No.14 of 2015 registered with the Khmabhat City Police Station for the offences punishable under Sections 406, 465, 467, 468, 471 and 114 of the Indian Penal Code, for discharge under Section 239 of the Code of Criminal Procedure, 1973 and the proceedings itself as well as quashment of the order impugned dated 11.10.2021 passed in Criminal Revision Application No.5 of 2020 (Old Criminal Revision Application No.99 of 2017) by the Sessions Court, Khambhat.
2. The brief facts of the prosecution case are as under :
2.1 That accused No.1, with a view to obtain agricultural loan on agricultural land being revenue survey no.53, 111 and 335 situated at Village : Vainaj, Tal.
Khambhat, District : Anand, submitted one power of attorney of the owners of these lands executed in favour of accused No.1, duly notarized by the present petitioner vide register No.2045 of 2009, in the Union Bank of India, Khambhat Page 2 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined Branch, Anand and all the documents were verified and title investigation report was called for from the advocate of the bank.
2.2 Thereafter, accused No.1 had filed one declaration with regard to the loan, which was forwarded to the Sub-
Registrar office and to the Revenue Department for making entries in the revenue records with regard to the loan obtained by him on said lands, which was registered in the Revenue Department vide mutation entry No.2532 dated 11.03.2010.
2.3 The advocate of the bank confirmed in his title investigation report dated 07.06.2010 submitted to the bank and after receiving title investigation report from the advocate of the bank, the bank sanctioned the term loan of Rs.10 lakhs and cash credit loan of Rs.3 lakhs and surety bonds were also executed.
2.4 The accused No.1 did not pay the installments of loan by the time and therefore, the loan account was turned NPA. The bank initiated proceedings for recover of debts against the accused No.1 in DRT at Ahmedabad, during which the bank authority came to know that party No.1 in said power of attorney viz., Ramsingbhai Dahyabhai Rathod Page 3 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined had died on 31.05.2006 and the said power of attorney was executed in favour of the accused No.1 on 05.09.2009.
2.5 Thus, the FIR came to be lodged and after investigation, charge-sheet is also filed, wherein the present applicant is shown as accused No.4, which culminated into Criminal Case No.3 of 2016 before the learned competent Criminal Court. Thus, present application by the applicant.
3.1 It is noted that the applicant was enlarged on regular bail by the learned Sessions Court.
3.2 It is also noted that the applicant has preferred discharge application, which was rejected by the competent learned trial Court, which was challenged by him before the learned Sessions Court, which is also rejected.
4. Heard learned advocates. Rule. Learned APP waives service of notice of rule on behalf of the State.
5.1 Learned advocate Mr.Vishal Anandjiwala for the applicant has submitted that mandatory provisions of Section 13 of the Notaries Act, 1952 ('the Act' for short) is not complied with in the present case. He has further submitted that the present applicant, who is shown as accused No.4 in Page 4 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined the charge-sheet, has filed discharge application, which was rejected on the ground that the act of present applicant does not ascribe under Section 8 of the Act and therefore, provisions of Section 13 of the Act cannot be attributed. He has submitted that he has simply attested the document which is produced before him and the present applicant may not be aware that the person who is presenting such document is the same person or not. Therefore, the present applicant has acted as per Section 8 of the Act.
5.2 He has further submitted that even the learned Revisional Court has not considered this material aspect that in view of Section 13 of the Act, no cognisance can be taken when the complaint is filed by the Branch Manager of the bank and therefore, the complaint itself is not maintainable against the applicant. He has submitted that the Court cannot take cognisance of such complaint. In support of his submissions, he has relied upon the decisions of this Court in the case of Mohd. Yusufbhai Kasambhai Kalavat versus State of Gujarat reported in 2016 (2) GLH 213 and in the case of Ashokbhai Rameshchandra Ghantivala versus State of Gujarat reported in 2009 (2) GLH 491 and has submitted that in similarly situated case, this Court has held that complaint which is not filed by the authorised officer in view of Section 13 of the Act, it cannot be said that he has complied with Page 5 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined the provisions of Section 13 of the Act.
5.3 He has submitted that this Court should interfere with the orders passed by the Courts below by quashing and setting aside the same or this Court may pass appropriate order by directing the Courts below to consider the matter afresh.
6. Learned APP Mr.Joshi for the State has drawn the attention of this Court towards the findings of both the Courts below and has submitted that both the Courts below have not committed any error as the role which is played by the present applicant in the commission of offence is as co-
accused and he cannot take contention that he has acted only in accordance with the provisions of Section 8 of the Act and the decisions which are cited at the bar by the learned advocate for the applicant are not helpful as observed by the learned trial Courts as in the present case, both the trial Courts below have rightly come to the conclusion that looking to the role of the present applicant, it cannot be said that he has acted pursuant to the provisions of Section 8 of the Act and therefore, provisions of Section 13 cannot be applicable, otherwise also, he has submitted that there is no reason, more particularly any error of law which has been pointed out from the impugned orders and therefore, this Page 6 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined Court should not exercise the powers in favour of the applicant and dismiss this application.
7.1 I have considered the rival submissions made by the learned advocates for the respective parties. I have also perused the impugned orders passed by the Courts below. It transpires that there is a loan transaction. Accused No.1 has availed the loan facility and he has committed default in repayment of loan and the bank has filed the recovery proceedings before the Debt Recovery Tribunal concerned and at that time, it came to know that the executor of the power of attorney has expired in the year 2006 and the said document is notarised in the year 2009 before the present applicant being a Notary and therefore, the present applicant is an accused who has discharged his duty as notary as he has attested such document as notary. It also transpired that both the Courts below have proceeded on the footing by not believing the judgments of this Court as noted above in the case of (i) Mohd. Yusufbhai Kasambhai Kalavat (supra) and
(ii) Ashokbhai Rameshchandra Ghantivala (supra) on the basis that the applicant has not acted in consonance with Section 8 of the Act and therefore, the procedure under Section 13 of the Act is not attracted, which is a settled legal position. At this juncture, it is required to refer to the decision of Mohd. Yusufbhai Kasambhai Kalavat (supra), more Page 7 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined particularly paras 3.1, 4 and 5 thereof, which are as under :
"3.1 On the other hand, learned Additional Public Prosecutor Mr. K. P. Raval supported the order of learned Additional Sessions Judge by submitting that it is kept open for the Investigating Officer to get sanction as per Section 13, therefore, the impugned order is not required to be interfered with. He submitted that the sanction can be taken subsequently also. In the next, he relied on decision of this Court in case of the applicant himself being Criminal Misc. Application No. 1934 of 2011 which was filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing the First Information Report in question. It was submitted that the said application having been rejected, the contention about non-compliance of Section 13 is not well-founded.
4.1 It is not in dispute that the applicant was a Notary having valid Notary Certificate. The role attributed to him in the First Information Report is only to the extent stated above. He is made accused only in so far as he notarized the documents of stamp paper, whereby the eloped girl and boy contracted marriage before the Notary by executing the said documents notarized by the applicant. It is also Page 8 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined not in dispute that the applicant was exercising his functions as Notary under the Act and in respect of his act, it is treated and arraigned as offence. Now, Section 13 of the Notaries Act provides as under :
"Sec.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 of Magistrate or a Magistrate of the first class shall try an offence punishable under this Act."
4.1 The aforesaid provisions clearly lays down that any court shall not take cognizance of offence against Notary, acting for exercising his functions as Notary except upon a complaint in writing by the authorised officer. In the present case, the complaint which was filed in which the applicant was shown as accused, was not by the authorised officer. There was no compliance of Section 13. As stated above, the role attributed of Page 9 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined the applicant in the FIR was limited. No other allegations were made or no further role was attributed.
4.2 The contention of learned APP that the clarification and contention provided in the impugned order would suffice, cannot be accepted. The requirement of Section 13 has to be complied with in letter and spirit. The non-compliance of Section 13 renders the very initiation incompetent in law, and the basis of that the Court could not take cognizance as far as the applicant is concerned.
4.3 Reliance placed by learned advocate on the order of this Court passed in Criminal Misc. Application No. 1934 of 2011 mentioned above is not well-placed. The said application under Section 482, Cr.PC was filed by the applicant herein at the stage when only FIR was filed seeking protection of Section 13. In the judgment dated 12.01.2012, this Court did not entertain the application. At the stage of investigation of the offence registered, shelter of Section 13 of the Act was not justified. In paragraph 5.1 of the judgment, the Court however observed as under:
"5.1 Considering the aforesaid decision of the Hon'ble Supreme Court, the complaint/ FIR cannot be quashed and set aside Page 10 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined 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."
4.4 Now, when the stage of taking cognizance by the Court has reached at such appropriate stage, the applicant filed application Exh.22 contending that Section 13 of the Notaries Act was not applied, therefore, the complaint was not competent in law and that the cognizance of the offence against the Notary could therefore be not taken.
5. The facts in the decision in Ashokbhai Rameshchandra Ghantivala(supra) were similar to the present case. The applicant-Notary their had notarized a power of attorney which was later notarized to be a forged document, whereunder the accused admitted to sell an agricultural land belonging to the complainant and committed alleged offence. As the applicant accused was shown as accused in the FIR filed and the Page 11 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined Magistrate took the cognizance of the offence on the basis of charge-sheet filed, the contention was raised that in view of Section 13 of the Act, the Magistrate could not have taken cognizance of the offence against the Notary unless the same was in writing as provided under Section 13, this Court held 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 Page 12 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined 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."
5.1 Judgment dated 20.12.2012 passed by this Court in Special Criminal Application No. 575 of 2012 and allied matters in Amrutbhai Shambhubhai Patel vs. State of Gujarat & 1, in paragraph 21 of the judgment, this Court observed as under to reiterate the position of law with regard to Section 13 of the Act:
"21. As per Section 13 of the Act, cognizance can be taken by the court only on a complaint having been filed by an authorized officer. However, in the instant case, it appears that the Page 13 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined complaint is not filed after such authorization and straightway charge- sheet is filed and, therefore, the court cannot take cognizance in absence of a complaint as envisaged under Section 13 of the Act. However, it is observed that confirming the order of the Sessions Court discharging original accused No.5 shall not preclude the authorized officers from taking appropriate steps under Section 13 of the Act, if they so deem fit.""
7.2 It is also relevant to refer to the another decision in the case of Ashokbhai Rameshchandra Ghantivala (supra), more particularly paras 3, 4, 6 and 7 thereof, which are as under :
3. Mr. Asim Pandya, learned advocate for the petitioner submitted that the investigation papers do not make out any criminal case against the present petitioner. It is not stated in the F.I.R. or the statement of witnesses that the so-called general power of attorney was defective in any manner so as to infer the involvement of the present petitioner. It was submitted that two persons including the advocate Mr. Narendra Tiwari had identified the witnesses and the executor. Once the legal requirement for Page 14 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined notarizing the document is fulfilled, the petitioner is bound to notarize the document, Merely notarizing the document that was subsequently found to be a forged document does not ipso facto entitle the investigating Officer to implicate the notary.
4. The main plank of the submissions advanced by the learned Advocate for the petitioner was that in view of the provisions of Sec. 13 of the Notaries Act, 1952, the Court cannot take cognizance of any offence committed by a Notary in exercise or purported exercise of his functions under the said Act, unless a complaint in writing has been made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. It was accordingly submitted that in view of the prohibition condition in Section 13 of the Act, the learned Judicial Magistrate could not have taken cognizance of the complaint qua the present petitioner unless the same was made in writing as envisaged under the provisions of Sec. 13 of the Act.
It was submitted that in view of the nature of the allegations made in the complaint, the chargesheet itself is required to be quashed. Alternatively, it was submitted that in any case, the Court could. not have taken cognizance of the Page 15 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined offence qua the present petitioner. Hence, to the extent cognizance is taken, the same is required to be quashed.
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 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 Sec. 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 Sec. 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 Page 16 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this Act."
A plain reading of Sec. 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 Page 17 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined 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 V/s. 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. 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 Sec. 13 of the Act are satisfied. It is an undisputed position that no complaint as Licenced to : Mahesh Dave (Principal Private Secretary) Page 4 of 4 envisaged under Sec. 13 of the Act has been made against the petitioner in the circumstances, Page 18 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined 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."
7.3 It is also relevant to reproduce Section 8 and Section 13 of the Notaries Act as under :
" 8. Functions of notaries.--(1) A notary may do all or any of the following acts by virtue of his office, namely:--
(a) verify, authenticate, certify or attest the execution of any instrument;
(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
(c) note or protest the dishonour by non-
acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (26 of 1881), or serve notice of such note or protest;
(d) note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters;
(e) administer oath to, or take affidavit from, any person;
(f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
Page 19 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined
(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate;
(h) translate, and verify the translation of, any document from one language into another; [(ha) act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;
(hb) act as an arbitrator, mediator or conciliator, if so required;]
(i) any other act which may be prescribed.
(2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal.
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."
Page 20 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined 7.4 Considering the above view as well as law laid down by this Court, both the Courts below have committed an error on the facts as well as law by holding that the action of the present applicant cannot be considered as action in consonance with Section 8 of the Act. On bare perusal of Section 8 of the Act and considering the fact that some person has projected himself as the person who has executed the power of attorney (in case of impersonation) and in that case, at the best, the applicant remained negligent for verifying the identification proof, but it cannot be said that he has played active role in the commission of offence as alleged. This is a limited role ascribed to the present applicant and this act certainly comes within the function of the notary which is defined under Section 8 of the Notaries Act and therefore, Section 13 of the Act will certainly come into place.
7.5 In this background, it is required to be noted that very recently, the Kerala High Court in case of P.C. Jeeva versus State of Kerala reported in 2022 SCC OnLine Ker.
8294 has taken a view that Section 13 is a mandatory provisions so far as the offence alleged to have been committed by the notary public in exercise or purported to be exercised in his function. The relevant observations are made Page 21 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined in paras 7, 8 and 9 which are as under :
" 7. From the perusal of the aforesaid provision, it is evident that, a special procedure has been contemplated by virtue of the said provision and it provides that the cognizance of any offence committed by a Notary in exercise or purported exercise of his function under the Notaries Act can be instituted only upon a complaint in writing made by an officer authorized by the Central Government in this behalf. The crucial aspect to be noticed in this regard is that Section 13 of the Act is made applicable to any offence committed by a Notary in exercise or purported exercise of his functions under this Act. It is evident that, irrespective of the question that the offence which is a subject matter is committed under the provisions of Notaries Act or any other enactment, procedure as contemplated under Section 13 has to be followed while taking cognizance of an offence against a Notary Public. The aforesaid question came up for consideration before this Court in Jyolsana VP. v. State of Kerala [2020 (6) KHC 334]. In paragraph 11 of the said judgment, this Court made the following observations:
"11. As discussed above, it is quite impossible for a Notary to know the Page 22 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined genuineness of the document produced before him for attestation. The Notary is not supposed to know each and every person before him for the purpose of notifying a document in his Notarial Register. He is generally introduced to parties by persons who happen to be persons of his acquaintance. If such protection is not granted to a Notary, it would be very difficult for him to work as notary and members of public at large would be facing number of difficulties at every step. With this object S. 13 has been enacted by the Legislature as a safeguard."
8. Thus from the above, it is evident that, the stipulation contained under Section 13 is a mandatory provision as far as the offence alleged to have been committed by a Notary Public in exercise or purported exercise of his function, are concerned. It is also clear that, no court can take cognizance of such offences unless the procedure contemplated under Section 13 of the Notaries Act, 1952 are followed. In this case, it is evident that the proceedings have been instituted and cognizance thereon was taken on the basis of police report which is not the procedure as contemplated under Section 13 of the Act. In such circumstances, as the procedure Page 23 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined which is mandatorily required to be followed under Section 13 of the Act is not complied with, the prosecution now ongoing against the petitioner is vitiated. In such circumstances, I find some force in the contentions put forward by the learned counsel for the petitioner.
9. Another contention on behalf of the petitioner is that, even if the allegations against the petitioner are accepted, the same would not make out the offence alleged. In this regard, I am of the view that, since I have already decided that taking cognizance on the basis of Police report against the petitioner is not proper, I do not intend to decide the said question. This is particularly because, as the proceedings are already vitiated, it is not necessary to consider the merits of the other contentions of the petitioner."
7.6 Further, for academic discussion, it is required to refer to the decision of the Bombay High Court in the case of Smt. Seema Hitesh Khandelwal versus State of Maharashtra - Criminal Writ Petition No.602 of 2022 = 2023 SCC OnLine Bom 1129, more particularly paras 22 to 25 thereof, which read as under :
"22. Section 13 of the Act of 1952 provides a Page 24 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined protection to the notary in case of an offence committed by a notary in exercise or purported exercise of his functions under the act. The functions of the notary have been set out in Section 8 of the Act of 1952. In this case, I am concerned with the function of the notary with regard to the act of attestation of the execution of the will deed by the patient/deceased. In this context, it would be necessary to see what is mean by attestation of endorsement. The definition of the 'attestation' or 'attested' has not been provided in the Act of 1952. Similarly, the definition has also not been provided in the General Clauses Act, 1897. The definition of 'attested' has been provided in Section 3 of the Transfer of Property Act, 1882. It is extracted below:
"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each Page 25 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
Similarly, the meaning of the word 'attest' needs to be considered as provided in Black's Law Dictionary, 8th edition authored by Bryan A. Garner. The same is extracted below:
"Attest : To bear witness; testify <attest to the defendant's innocence>. 2. To affirm to be true or genuine; to authenticate by signing as a witness <attest the will>"
The above definitions have been
reproduced to understand as to how the
attestation of document has to take place. If the attestation does not take place in the manner provided in this definition then it could not be said to be attestation to the execution of the document. In this case, the accused No. 5/notary has attested the execution of document being a notary.
23. As per Section 13 of the Act of 1952, Page 26 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined the Court is debarred from taking cognizance of any offence committed by notary in the exercise or purported exercise of his functions under this Act except 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. This provision has been incorporated to protect the notary from unnecessary prosecution while discharging functions as a notary. This protection in my view can be made use of as a shield from the prosecution where the act committed by notary, is under the Act of 1952. The question is whether the act of forgery of document and cheating would fall within the ambit of the exercise or purported exercise of the functions of the notary under the Act of 1952. It is to be noted that the attestation of execution of document in the absence of the executant and in process of conspiracy, to prepare a forged will deed would not fall within the functions of the notary under Section 8 of the Act of 1952. The provisions of Section 13 of the Act of 1952 is animated by public policy. The document notarized by the notary has a presumptive value. In the absence of protective cover provided under Section 13 of the Act of 1952 the notary would be made to face number of criminal cases. A notary may not be personally aware of every person coming to him. The notary will not with Page 27 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined certainty know the truth of the document. In this case the question involved is somewhat different and has to be addressed in the backdrop of the facts noted above. The question in the fact situation is as to whether the notary would be entitled to get a protection of Section 13 of the Act of 1952 in case of an act which constitute an offence of conspiracy with others. In my view, in order to find an answer to this question it would be necessary to understand expression "under this Act" finding place in Section 13 of the Act of 1952. In my view, this expression if understood properly would make it clear that if the notary discharges his functions under the Act, namely Section 8, then only Section 13(1) of the Act would come into play & to rescue the notary.
24. The Madras High Court in the case of Ganapathyvaratha Subramanian v. The State represented by Inspector of Police, decided on 09.03.2020 (Crl OP (MD) No. 2669 of 2020) has considered the somewhat similar situation. The Madras High Court has considered the decision in the case of Chandmal Boar (supra) of the Co- ordinate Bench of this Court. The para No. 8 of the decision would be relevant. It is extracted below :
"8. Section 13 of the Notaries Act, 1952 Page 28 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined 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 authorized 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 office punishable under this Act.
The aforesaid provision is animated by a public policy. Notarised documents have a presumptive value attached to them. One may profitably go through the erudite decision of the Hon'ble Mr. Justice P.B. Mukharji reported in AIR 1967 Cal 636 (In Re: K.K. Ray Private Limited) to understand the historical origin and significance of the institution of notary. If there is no protective provision like Section 13 of the Notaries Act, a Notary could be implicated in any number of cases. A Notary will not be personally aware of each and every person who comes to him. He will Page 29 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined certainly not know the truth underlying the documents. Therefore, I cannot have any quarrel with the proposition laid down in the decisions relied on by the petitioner's counsel. But the issue that calls for resolution in this case is a little different and more nuanced. Section 8 of the Notaries Act sets out the functions of a Notary. The question is whether even a reckless or malafide discharge of notarial functions would still attract the protective shield of Section 13 of the Act. In my view, the key lies in a proper understanding of the expression "under this Act" occurring in the said provision. In other words, only if the notarial function has been discharged under the Act, Section 13(1) of the Act will kick in and not otherwise."
25. In the case of Ganapathyvaratha (supra) it has been categorically held that the expression "under this Act" occurring in Section 13 is thus pregnant with meaning and significance. When Section 13 of the Notaries Act, 1952 comes up for consideration, the expression "under this Act"
cannot be ignored or glossed over. No part of a statutory provision can be left out of consideration. It is held that only when the notary has exercised or purported to exercise his Page 30 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined functions under the Notaries Act, 1952 he can hide behind Section 13 of the Act."
8. In view of above, in my opinion, both the Courts below have committed an error of law while appreciating the facts of the present case in view of the provisions of Section 13 of the Notaries Act, 1952. Under the circumstances, the interest of justice would meet if the matter is remanded back to the learned Revisional Court for fresh consideration.
9. For the reasons recorded above, the following order is passed.
9.1 This application is partly allowed.
9.2 The order impugned dated 12.05.2017 passed below Exh.7 in Criminal Case No.3 of 2016 passed by the learned Judicial Magistrate, First Class, Khambhat as well as the order impugned dated 11.10.2021 passed in Criminal Revision Application No.5 of 2020 (Old Criminal Revision Application No.99 of 2017) by the Sessions Court, Khambhat, are hereby quashed and set aside.
9.3 The learned Revisional Court concerned is directed to hear Criminal Revision Application No.5 of 2020 (Old Page 31 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023 NEUTRAL CITATION R/SCR.A/12660/2021 JUDGMENT DATED: 22/06/2023 undefined Criminal Revision Application No.99 of 2017), afresh, in accordance with law, after giving opportunities to the parties, keeping in mind the observations made by this Court in this order, as expeditiously as possible but preferably on or before 31.10.2023.
9.4 Rule is made absolute to the aforesaid extent.
(SANDEEP N. BHATT,J) M.H. DAVE Page 32 of 32 Downloaded on : Sat Sep 16 20:30:51 IST 2023