Gujarat High Court
Ramnikbhai Vallabhbhai Sojitra vs State Of Gujarat on 9 November, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/CR.MA/6079/2016 ORDER DATED: 09/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6079 of 2016
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RAMNIKBHAI VALLABHBHAI SOJITRA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. DARSHIT KAMDAR FOR MR ASHISH M DAGLI(2203) for the
Applicant(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
MR ROHIT G MAKWANA(11413) for the Respondent(s) No. 2
MS. MOXA K. THAKKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/11/2022
ORAL ORDER
1. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973, the applicant herein - original accused no.3 has prayed for quashing of Criminal Case No. 865 of 2014 registered before the Court of learned Chief Judicial Magistrate, Upleta, Dist.: Rajkot for the offences under Sections 420, 463, 464, 467, 468, 471, 114, 34 and 120 of the Indian Penal Code as well as the order of issuance of process vide order dated 07.09.2015 passed by the learned Judicial Magistrate First Class, Upleta, whereby, the process is issued against the applicant herein and others for the alleged offences punishable under Sections 420, 465, 467, 468, 471 and 114 of Page 1 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 the Indian Penal Code, 1860.
2. The brief facts germane for adjudication of the present application are stated thus:
2.1. That the respondent no.2 filed the impugned criminal complaint alleging that in the year 2006, his father - Manjibhai Padariya passed away and he had lands for which the name of the respondent no.2 and his brothers and sisters were to be entered in the revenue record as legal heirs. It is alleged that for the said purpose, the respondent no.2 contacted the advocate Shri Ramnikbhai Sojitra and allegedly the said advocate took the details of the legal heirs of Manjibhai. It is further alleged that the said advocate, in connivance with other co-accused, showed one Gomtiben, as a legal heir of Manjibhai and in addition to other legal heirs and on 31.07.2006, a forged and fabricated application for mutating the names in the revenue record was made, bearing forged signatures of the respondent no.2 and his brothers and sisters and it is also alleged that a false affidavit dated 29.07.2006 was created in a similar manner, though, Gomtiben is not related to the respondent no.2, her name came to be entered in the revenue record of the ancestral lands of the respondent no.2.
2.2. It is further alleged in the said application dated 31.07.2006, names of 6 heirs of Gomitben were stated and in the affidavit even their addresses were mentioned and legal heirs of Page 2 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 Gomtiben were identified by one advocate Shri C.K. Tiwari. It is alleged that, false documents were created and even a false pedigree of father of the respondent no. 2 was created with a view to grab the ancestral land of the respondent no.2. It is alleged that, on 18.06.2006, Talati, Upleta made a rough entry showing names of the legal heirs of Gomtiben alongwith name of legal heirs of Manjibhai. It is alleged that, no notice under Section 135-D of the Gujarat Land Revenue Code, 1879 is served upon the real heirs of Manjibhai and forged signatures of the real heirs have been made on such documents.
2.3. It is alleged that, one application for relinquishment of rights is allegedly fabricated in the name of one Shri Vinodbhai J. Patel, who is shown as heir of Gomtiben and on 22.11.2010, false affidavits have been created, wherein, allegedly the accused no.3 has identified the respondent no.2 and one notary Shri Vagadia has affirmed the affidavits of the respondent no.2 and his real brothers and sisters have never gone before such notary and therefore, dummy persons impersonated them.
2.4. It is alleged that, therefore, application of relinquishment of rights and other affidavits are forged and produced before the E-Dhara Officer, Upleta and on 15.11.2010 and even stamp is purchased in the name of the respondent no.2 and his brothers and sisters, wherein, even their addresses are not correct. It is further alleged that the respondent no.2 or his brothers or sisters have not purchased any stamp and have not Page 3 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 gone before the notary Shri Vagadia in the year 2011, without calling respondent no.2 or his brothers or sisters, the entry of Shri Vinodbhai Patel and Shri Rajubhai Patel, as legal heirs of Gomtiben, is mutated in the ancestral lands of the respondent no.2. It is further alleged that, all the accused persons have committed a fraud and even in Appeal No. 78/11-12, Deputy Collector, Dhoraji, has allowed the appeal challenging the Entry No. 11180. It is further alleged that, original accused -
Ramnikbhai Sojitra has masterminded the entire fraud and has committed the entire alleged offences, in connivance with the other co-accused and even affidavit dated 15.04.2011 and application dated 18.04.2011 have been forged.
2.5. The criminal complaint after due verification by the respondent no.2 and after inquiry under Section 202 of the Code of Criminal Procedure was ordered by order dated 11.03.2014.
2.6. The respondent authority had filed a Report before the learned Magistrate and the respondent no.2 had filed an application below Exh.14 seeking further investigation, wherein, an order dated 03.12.2014 ordering further investigation under Section 173(8) of the Code of Criminal Procedure, 1973 came to be passed.
2.7. The respondent authority submitted further report on 30.05.2015 below Exh.25, pursuant to the order dated 07.09.2015 passed by the Judicial Magistrate First Class, Upleta against the Page 4 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 applicant and 7 other accused. The learned Judicial Magistrate First Class, Upleta issued process against all the 8 accused including the present applicant, who is shown as accused no.1 for the offence under Sections 120-B, 420, 465, 467, 468, 471 and 114 of the Indian Penal Code.
2.8. The accused no.4, viz., Chandrakant Pandya having expired, the proceedings are abated qua him and the proceedings are pending qua 7 accused including the present applicant.
2.9. Being aggrieved by the aforesaid, the applicant herein is constrained to approach this Court seeking quashment of the impugned order dated 07.09.2015 passed in Criminal Case No. 865 of 2014.
3. SUBMISSIONS ON BEHALF OF THE APPLICANT:
3.1. Mr. Darshit Kamdar, learned advocate for Mr. Ashish Dagli, learned counsel appearing for the applicant raised preliminary contention that the applicant herein is a practicing advocate as well as a Notary.
3.2. Mr. Kamdar, learned counsel appearing for the applicant submitted that the applicant at the relevant point of time the applicant was practicing as an Advocate as well as Notary and since upon a private complaint, the Magistrate has already taken cognizance, the applicant being a Notary, the case of the applicant is required to be considered as per Section 13 of Page 5 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 the Notaries Act, 1952.
3.3. On the merits of the alleged dispute in question, Mr. Kamdar, learned advocate submitted that, the applicant herein has falsely implicated in the aforesaid complaint. It was submitted by Mr. Kamdar, learned advocate that the allegations levelled by the respondent no.2 are improbable to be true, since the entries in question remained on record after a considerable time and after considerable delay, the impugned complaint is filed, which is not even properly explained by the respondent no.2.
3.4. Mr. Kamdar, learned advocate submitted that, on bare reading of the complaint, no mens-rea is alleged against the applicant and applicant is not a beneficiary of the alleged offences. It was submitted that, there is nothing on record to suggest that the applicant has any mens-rea or the applicant had any meeting of minds with the co-accused, thus, by aid of Section 120-B and 114 of the Indian Penal Code, the applicant cannot be made an accused in the aforesaid complaint and that the order impugned passed in a mechanical manner.
3.5. In view of the aforesaid submissions, Mr. Kamdar, learned advocate submitted that, applicant being a Notary, the aforesaid complaint is not maintainable qua the applicant herein and that there is a bar of taking cognizance under Section 13 of the Notaries Act and the complaint impugned be quashed qua the Page 6 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 present applicant.
4. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2:
4.1. Mr. Rituraj Meena, learned advocate appearing for the respondent no.2 vehemently submitted that the applicant herein is arraigned as an accused as an Advocate and not as a Notary. In the entire complaint, the respondent no.2 has alleged against the present applicant in his capacity as an Advocate.
4.2. It was submitted by Mr. Meena, learned advocate appearing for the respondent no.2 that the applicant herein was not acting or imparting or in discharge of his official duty and was not functioning as his capacity as a Notary. Mr. Meena, learned advocate submitted that, prima-facie allegations against the applicant bring out his role in the conspiracy to forge the disputed documents and submitted that the very allegations suggest that the act committed by the applicant was not in accordance with the provisions of Notaries Act and therefore, there was no requirement of having any sanction as contemplated under the provisions of Section 13 of the Notaries Act.
5. SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE:
5.1. Ms. Moxa Thakkar, learned APP appearing for the respondent-State supported the submissions advanced by Mr. Rituraj Meena, learned counsel appearing for the respondent no.2 and submitted that the applicant herein as stated in the Page 7 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 complaint, the role attributed to the applicant herein is that of an Advocate and that the applicant therein did not act as a Notary with respect to the alleged incident.
6. Heard Mr. Darshit Kamdar, learned advocate for Mr. Ashish Dagli, learned advocate appearing for the applicant, Mr. Rituraj Meena, learned advocate appearing for the respondent no.2 and Ms. Moxa Thakkar, learned APP appearing for the respondent-State.
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. 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 Page 8 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 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 a Court can take cognizance of such offence only if the complaint is made in the manner 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.Page 9 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022
R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 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 Page 10 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 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 wouldbe 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."
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 Page 11 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 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 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. Unless a complaint is Page 12 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 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. 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 has stated that the applicant is possessing the valid license / Page 13 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 certificate of Notary issued by the competent authority.
11. The applicant herein is a practicing Advocate as well as Notary. On inquiry, it was stated that the applicant herein is still possessing a valid license / certificate of Notary duly issued by the competent authority. It is alleged by the complainant herein that the offence committed by the applicant herein was not in discharge of his function as a public Notary, and therefore, the complaint filed before the concerned Court below and consequently the process issued by the concerned Court is not required to be interfered with. Considering the averments made in the application and the averments made by the complainant in the application before the concerned Court and the document which is in question which is produced at page-50 which according to the respondent - complainant is a forged document, the said document also contains the seal of a Notary by the applicant herein. Though, it is the case of the applicant that the applicant never notarized the said document, however, considering the document in question also, the Notary seal is on record, without considering the dispute in question, there is a bar under Section 13 of the Notaries Act for taking cognizance against the present applicant by the concerned Court. Section 13 of the Act refers to an offence committed by the notary or purported to have exercised the function under the Notaries Act. The word 'purported' covered the act alleged to be mala-fide made / done or purported to be made. Though, the respondent Page 14 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 no.2 filed the impugned complaint before the concerned Magistrate, which is duly produced at Annexure-B, page-16 on 07.03.2014, considering which, the concerned Court issued process by an order dated 07.09.2015, it is pertinent to note that the respondent no.2 also approached the Government of India, Ministry of Law and Justice, Department of Legal Affairs by filing a complaint against the present applicant on 08.07.2015. The respondent no.2 has placed on record the communication dated 03.04.2017, wherein, the applicant herein was called upon by the competent authority by issuing notice, taking into consideration the complaint received by the competent authority from the respondent no.2 on 08.07.2015.
12. Considering the ratio as laid down by the Hon'ble Supreme Court and the decisions of this Court and considering the facts of the present case, the applicant herein in para-10 of the application has stated that the applicant herein is a public Notary and is holding a valid license as on today. 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 respondent no.2 has also approached the concerned competent authority by filing a complaint under Section 13 of the Notaries Act against the present applicant and Notice has been issued on 03.04.2017 calling upon the present applicant to reply to the said Notice, which is also on record duly produced at page no.187. It can Page 15 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022 R/CR.MA/6079/2016 ORDER DATED: 09/11/2022 easily be inferred that the respondent - complainant has himself relegated to the statutory remedy by filing a complaint before the Central Government.
13. For the reasons stated above, the learned Magistrate could not have taken cognizance of the offence against the present applicant, unless the procedure as contemplated under Section 13 of the Act is followed, wherein, a complaint is required to be made in writing by the officer authorized by the Central Government or the concerned State Government by general or special order in this behalf. The complaint therefore can be said to be non-maintainable qua the present applicant.
14. For the aforesaid reasons, the Criminal Case No. 865 of 2014 pending before the Chief Judicial Magistrate, Upleta is quashed 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. It is however clarified that quashing of the complaint qua the present applicant shall not preclude the respondents from taking appropriate steps under Section 13 of the Act, if so deemed fit, in accordance with law. Rule is made absolute to the aforesaid extent. This Court has otherwise not opined on the merits of the matter.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 16 of 16 Downloaded on : Sun Dec 25 05:54:11 IST 2022