Karnataka High Court
Sri M G Uthappa S/Olate M.S. Ganapathi vs State Of Karnataka By Ullal Police ... on 25 July, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION NO.757 OF 2009
BETWEEN:
SRI M G UTHAPPA
S/O LATE M.S.GANAPATHI
AGED ABOUT 53 YEARS
ADVOCATE & NOTARY
NO. 286, 4TH CROSS, 2ND MAIN
BENNIGANAHALLI
BANGALORE-560 016
... PETITIONER
[BY SRI.C M KEMPEGOWDA, ADV.,]
AND:
1. STATE OF KARNATAKA
BY ULLAL POLICE STATION
ULLAL, MANGALORE TALUK
DAKSHINA KANNADA
BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING COMPLEX
BANGALORE-560 001
2. SRI. MOURIS D' SOUZA
S/O LATE DANIAL D' SOUZA
AGED ABOUT 92 YEARS
JOY VILLA, ADAMKUDRU HOUSE
PERMANNUR POST
JEPPINAMOGARU VILLAGE
MANGALORE TALUK ...RESPONDENTS
2
[BY SRI.K.DILIP KUMAR, HCGP]
****
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF THE CR.P.C. WITH A PRAYER TO QUASH THE ENTIRE
PROCEEDINGS IN CC NO.136/2008 ON THE FILE OF THE I
ADDL. CIVIL JUDICIAL MAGISTRATE, MANGALORE.
THIS CRIMINAL PETITION COMING FOR ORDERS ON
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though this petition is listed for orders regarding taking steps in respect of respondent No.2 who is reported to have died, matter is heard for final disposal.
2. Respondent No.2 lodged a report before the officer in charge of Ullal Police Station alleging the offences punishable under Sections 403, 415, 416, 419, 420, 423, 463, 464, 468 r/w Section 34 of Indian Penal Code against four persons shown as accused therein. The petitioner has been shown as accused No.3. On the basis of said report, police registered the case and took up investigation. After investigation, I.O. filed the charge sheet.
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3. Petitioner is a practicing Advocate and also a notary public. According to the allegations made in the FIR, accused Nos. 1 and 2 conspiring among themselves, with the common intention of misappropriating the property of the complainant, dishonestly by forging the signature of the complainant and by impersonation, have fabricated a Power of Attorney dated 2.2.2007 and by impersonation before accused No.3, have executed a Power of Attorney by forging the signature of the complainant with an intention to cheat the complainant and by using the said forged Power of Attorney as genuine, fraudulently and dishonestly, accused No.1 executed a Settlement deed alleging that accused No.1 is the Power of Attorney holder of the complainant by using the forged document and thus they have cheated the complainant.
4. Reading of the allegations made against this petitioner is that the alleged act has been committed by him while discharging his duty as a notary public. 4
5. The principal contention urged in this petition in support of the prayer for quashing is that the launching of the prosecution against this petitioner as a notary public on the basis of a private complaint and taking cognizance of the offence alleged on the basis of the charge sheet filed by the police is without jurisdiction and is contrary to the provision of Section 13 of the Notaries Act.
6. Section 13 of the Notaries Act, 1952 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.
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(2) No Magistrate other than a
Presidency Magistrate or a
Magistrate of the first class shall
try an offence punishable under
this Act."
7. Reading of the aforesaid provision makes it clear that in respect of any act said to have committed by a notary public in exercise or purported exercise of his functions as a notary public under the act, cognizance of such offences can be taken by the Court only on a complaint made to the Court in writing by an officer authorized in that behalf by the Central Government or the State Government by general or special order.
8. Thus, from the above it is clear that the Court cannot take cognizance of the any offences said to have been committed by a notary public in exercise of his functions under the Act on the basis of a private complaint lodged by a private individual nor on the basis of a police report.6
9. This Court in the case of Ranga Ramu vs. State of Karnataka reported in 1999 Crl.L.J. 561 and in an unreported decision in the case of M.G.Uthappa vs. State by Inspector of Police in Crl.P.No.891/2004 disposed of on 2.9.2004, in the light of Section 13 of the Act has held that the prosecution launched on the basis of a complaint filed by a private individual or on the basis of a police report is not tenable.
10. In the case on hand, since the criminal law was set on motion by filing a report by respondent No.2 herein before the police and on that basis the prosecution launched by police filing a charge sheet. Allegations made in the charge sheet against this petitioner arraigned as accused No.3, are in respect of the act said to have been committed by him in exercise of his functions as a notary public. Therefore, the prosecution launched is not tenable, as such, it is liable to be quashed. In view of the above, the death of respondent No.2 during the pendency of this petition has not in any way affected the merits of 7 this petition. Accordingly, petition is allowed. The prosecution launched against this petitioner-accused No.3 in C.C.No.136/2008 on the file of First Additional Civil Judge (Sr.Dn.) and CJM, Mangalore, is hereby quashed.
Sd/.-
JUDGE SS*