Gujarat High Court
Mrugesh Vinodchandra Shah vs State Of Gujarat on 18 March, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2972 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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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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MRUGESH VINODCHANDRA SHAH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BB NAIK, SR. ADVOCATE WITH MR EKANT G AHUJA(5323) for the
Applicant(s) No. 1
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 2
MS CM SHAH APP[ for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 18/03/2024
ORAL JUDGMENT
1. By invoking extraordinary jurisdiction of this Court Under Articles 226, 227 of the Constitution of India read with Section 482 of Cr.P.C. the applicant -
Page 1 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined original accused No.8, has called in question the legality and propriety of the orders passed by the Courts below whereby the discharge application filed on the technical ground of law has been dismissed by the trial Court and the same is upheld by the revision Court.
2. The facts germane to dispose of his application may briefly stated as follows:-
The applicant Mrugesh Vinodchandra Shah is a practicing lawyer, who has also been appointed as Notary Public under the Notaries Act, 1952. The applicant is accused no.8 in a Criminal Case No.7302 of 2013, pending before the Judicial Magistrate Court at Bavla. Pursuant to the FIR filed by the second respondent - original complainant Dhirajba Vaghela, the Investigating Agency has filed chargesheet against eight persons including present applicant herein for the offence punishable under Sections 406, 466, 468, 471, 120(B) of the Indian Penal Code.
The accused no.1 Pruthviraj Vaghela is the real brother of the complainant herein. The agricultural lands in different parcel of revenue survey numbers at Village Dumali, owned by the father of the accused and complainant. The complainant was having seven Page 2 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined brothers and two sisters. In the year 1988, the father Mohabbatsinh decided to partition the said lands and accordingly, by written instrument dated 27.12.1988, land properties were partitioned among the ten persons. The complainant got 1/10th shares from the different parcel of lands, as per the family agreement. The parties have acted upon the agreement and accordingly, the entries in the revenue record were mutated in the name of respective beneficiaries of the alleged partition. Since the execution of the partition deed, the complainant become absolute owner of agricultural lands as per the measurement mentioned in the family agreement. The co-accused Pruthviraj who happened to be a real brother, had asked the complainant to sell her share to him but she did not agree to sell her share and refused to sign any documents, allegedly prepared by her brother Pruthviraj. In such circumstances, she had inquired about the revenue records and she came to know that, the accused had created a forged and bogus power of attorney and two other instruments viz. unregistered agreement to sell and the agreement to handover the possession, by which, her share was sold by way of registered sale deed. The alleged power of attorney and two other documents as referred were presented before the present applicant - Notary Advocate and in her absence, the said documents Page 3 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined were notarized, verified, affirmed and authenticated by him and on the basis of said documents, the lands in question were sold to the co-accused. The said documents were notarized by 04.07.2010. In such circumstances, on 04.04.2011, the second respondent lodged an FIR against her brothers and others inter alia alleging that the accused have had hatched the conspiracy to grab the land in question for which, without any authority, they dishonestly and fraudulently created fabricated and forged documents in the nature of power of attorney, agreement to sell and agreement showing the possession so as to enable them to execute the sale deed and presented it before the applicant Notary Advocate for notarization and accordingly, the documents were notarized in the absence of complainant by the applicant herein.
After registration of the FIR, the investigation was undertaken by the police and after recording the statement of the witnesses and upon collection of the documentary evidence, the police found the sufficient material against the eight accused for the commission of the offence, cheating, forgery, forgery of valuable security and forgery for the purpose of cheating and accordingly, chargesheet came to be filed for the aforesaid offences before the Trial Court which has Page 4 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined been culminated into criminal case being No.730 of 2013.
So far as the role attributable to the applicant Notary is concerned, he has been arraigned as accused no.8 on the allegation that, in absence of second complainant, he notarized the power of attorney and other documents which alleged to be false and containing fabricated signature of the complainant and therefore, the applicant in connivance with the co-accused and being a part of the alleged conspiracy, by misusing his authority as a Notary, aided and abetted the accused to prepare forged and fabricated documents on the basis of which, registered sale deed was being executed.
Pursuant to the filing of the chargesheet, the Court has summoned the applicant and others for further proceedings of the case. Vide Exh.12, the applicant accused had filed discharge application on the technical ground that the prosecution was initiated against him in relation to the act done by him in his official capacity as a Notary and as such, in view of the mandate of Section 13 of the Notaries Act, 1952, no Court shall take cognizance of any offence committed by Notary in exercise of or purported exercise of his functions under this Act, except upon a complaint in Page 5 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined writing made by the officer authorized by the Government by general or special order in this behalf and therefore, when there is an express legal bar in the provisions of the Notaries Act to prosecute or to take cognizance of the offence, the Trial Court was having no jurisdiction to proceed with the matter and accordingly, he may be discharged from all the charges.
The learned Trial Court vide its order dated 23.12.2019 did not agree with the request of discharge and has dismissed the application, observing that the allegations made against the applicant is of conspiracy and in connivance with the co-accused, he notarized forged power of attorney and therefore, the act of the applicant would not fall within the function of Notary and therefore the protection as claimed is not available to him.
Against the said order, the Revision Application was preferred by the applicant. Revisional Court, after hearing the parties and considering the provisions of the Notaries Act has observed that the applicant has been charged under the penal provisions and failed to discharge his functions as a Notary as provided under Section 8 of the Notaries Act, 1952 and the allegations made against him do not fall any of the Notary and Page 6 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined therefore, the bar as contemplated under Section 13 will have no application to the facts of present case and accordingly, the said application came to be dismissed.
Being aggrieved with the orders passed by the Courts-below, this application has been preferred, inter alia stating that the Courts-below while passing the order, committed an error of law and decisions are grossly erroneous and judicial discretion having not been properly exercised.
3. This Court has heard Mr.B.B. Naik, learned Senior Counsel assisted by Mr.Ekant Ahuja, Mr.Mehul Sharad Shah, learned Counsel and Ms. C. M. Shah, learned APP for the respective parties.
4. Mr. B.B. Naik, learned Senior Counsel assailing the orders impugned has submitted that 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 is filed by the authorized officer. Referring to the case records, it was submitted that the Court is barred from taking cognizance of any offence committed by a Notary in exercise of its function of Notaries Act. The role of the applicant is limited to notarized the Page 7 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined documents and in the facts of present case, the advocate concerned had identified the signature of the complainant. Thus, in the case of criminal proceedings against Notary Public, the mandatory provisions of the Notaries Act should be followed and no Court should take cognizance without written complaint by an authorized officer.
5. In support of his submissions, learned counsel relied upon the cases of this High Court (Ashokbhai Rameshchandra Ghantiwala Vs. State of Gujarat, 2009 Online Gujarat 2203, Mohammad Yusufbhai Kasambhai Kalavat Vs. State of Gujarat (2015 (3) GLR 2263)) to contend that when the complaint as provided under Section 13 of the Notaries Act having not been filed by the authorized officer, the cognizance could not be taken by the Court and therefore, the proceedings initiated is contrary to the mandate of the law which is liable to be quashed and set aside.
6. In the aforesaid contentions and the binding judgment of this High Court, learned Senior Counsel has submitted that both the Courts-below have ignored the binding decisions and failed to exercise its judicial discretion in a proper manner and therefore, the orders passed by the Courts-below are not sustainable Page 8 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined in law and the same deserves to be quashed.
7. Per contra, learned Senior Counsel Mr. Mehul Sharad Shah has submitted that there is sufficient material against the applicant for the commission of the alleged offence. He failed to discharge his function as a Notary Advocate and the allegations made against him would not fall within the four corners of the statutory frame work and therefore, the protection as sought under Section 13 of the Notaries Act shall not be available to him. He hand in glow with the co- accused in fabricating and creating bogus documents pertaining to the power of attorney, agreement to sell and agreement seeking possession of the land in question and admittedly, on 04.07.2010, when the documents presented before him for notarization, the complainant was not present and all the documents were being executed and notarized on the same day which itself speak voluminous about the conduct of the applicant herein. The opinion of the FSL further confirmed the act of forgery. In such circumstances, it was submitted that the Trial Court as well as the Revisional Court have rightly observed and held that the allegations of conspiracy, do not fall within the functions of the notary as contemplated under Section 8 of the Notaries Act and the benefit of Section 13 of the Notaries Act would not be available.
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8. In view of the aforesaid contentions, learned Senior Counsel has submitted that both the Courts-below have assigned sufficient and cogent reasons while rejecting the discharge application and therefore, concurrent findings recorded by Courts-below are in accordance with law and do not suffer from any infirmities warranting interference by this High Court.
9. Heard learned counsel for the respective parties.
Perused the orders impugned and cash record.
10. Having regard to the facts and circumstances of present case, the issue falls for my consideration as to whether the case is made out to interfere with the impugned orders by exercising extraordinary jurisdiction of this Court.
11. Before examining the rival contentions, it is relevant to refer Section 13 of the Notaries Act, 1952 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 Page 10 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined 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 try an offence punishable under this Act."
12. It is apparent from bar perusal of the section that the Court is barred from taking cognizance of any offence committed by a Notary in exercise of its function under the Notaries Act, 1952 and rules thereunder, except upon a complaint made by an officer authorized by the Central or the State Government. It is undisputed that the applicant had notarized the power of attorney, one agreement to sell and one agreement seeking possession of the disputed land. The applicant has been impleaded as accused because of his position as a Notary as while exercising his functions under the Notaries Act, his services were availed. In the identical situation, this Court in Ashok Rameshchandra Ghantiwala Vs. State of Gujarat (supra), has taken a view that if any allegation made against the Notary which touches the official performance as a Notary, a Criminal Court is forbidden from taking cognizance unless a written complaint is Page 11 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined made by an authorized officer. In case of Ashok Ghantiwala (supra), the Coordinate Bench of this Court has considered the objects and reasons behind the provisions of Section 13, which reads as under:
"The committee considered that the protection should be given to a Notary in respect of cognizance of the offences. The protection should be given only to Notary who commits an offence acting or purporting to act in the discharge of their function under this Act."
13. In light of the judgment of the Coordinate Bench of this Court (Ashok Ghantiwala (supra)), which still holds the field and has been referred and relied by this Court in so many cases. In that view of the matter, the one of the contention is that, the trial Court as well as Revisional Court have ignored the binding decision of this Court and while deviating to follow binding nature of decision of this High Court, no any sound reasons being recorded and therefore, on this count, the orders deserve to be quashed. This Court found merits in the said contention. On perusal of the order of the trial Court and findings thereof, the learned trial Court failed to take note of decisions of this Court on the issue. The learned trial Court after considering Section 197 of the Cr.P.C., came to conclusion that, the act alleged against the applicant Notary, was not Page 12 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined done by him in exercise or purported exercise of his functions under the Notaries Act, 1952. The learned Revisional Court, while examining the correctness and validity of the order passed by the trial Court, relying upon the decision of the Madras High Court, (Ganapatahyvaratha Subramanian Vs. The State represented by the Inspector of Police, decided on 09.03.2020, Crl. OP (MD) No.2669 of 2020), was of the view that, the act of cheating and forgery allegedly committed by the Notary could not said to be done in exercise of the functions as Notary Public. The decision of this Court namely Ashok Ghantiwala (Supra) was cited before the trial Court as well as Revisional Court. Both the courts have not referred the said judgment while arriving at their conclusion that the Section 13 of the Act of 1952 would not applicable to the facts of the present case. The Revision Court in his judgment, has observed that, the judgment of this Court relied by the applicant accused is distinguishable on the facts and circumstances of the present case. It needs to be noted that on hand, the Revisional Court at the same time observed that there is no dispute as to the ratio of law, laid down by the judgment of this Court. In such circumstance, the approach of the Revisional Court from deviating the binding nature of decision of this Court, is not proper and sustainable in law. The High Courts are Court of Page 13 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined Record under Article 215 of the Constitution of India. By virtue of provisions Article 227, the High Courts have power of superintendence over all the subordinate courts and Tribunals in their respective jurisdiction. Thus, all the Courts and Tribunal in the respective State will be bound by the decisions of the High Court (Raval & Co. Vs. Tejiram Chandran (AIR 74 SC 818). The ratio of the said decision is that, a decision made by Higher Court is binding and the sub- ordinate courts cannot overturn it directly or indirectly. The decision of this Court in Ashok Ghantiwala (supra) cannot be said that the issue raise therein determined on the facts only. In the case of Ashok Ghantiwala (Supra) Section 13 of the 1952, was referred and interpreted with the object and reasons. In this context, reference can be made to the decision of the Apex Court in Dwarkesh Sugar Industries Ltd Vs. Prem Heavy Engineering (AIR 1997 SC 2477), wherein, the Supreme Court while examining the judicial impropriety has observed and held :
"When a position, in law, is well settled as a result of judicial pronouncement of the Court, it would amount o judicial impropriety to say the least, for the sub-ordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly Page 14 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the sub- ordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."
14. In light of the settled legal position on the binding nature of decision of the State High Courts and considering the peculiar facts and circumstances of the case, the Courts below did not follow the decision of this Court, which was cited at the time of hearing of the matter. Both the Courts have not discussed the factual aspect of the cited decisions of this Court and therefore, what are the distinguishable facts for not following the judgment of this Court, having not been considered and observed while determine the issue. It would be judicial impropriety to ignore the decisions. It is settled position of law that, judicial committee demands that the binding decisions to which their attention had been drawn should neither be ignored nor overlooked. If there is a disagreement on decision, then, the proper procedure to be followed by the Court concerned. The attempt on the part of the courts below in not following the judgment of this Page 15 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024 NEUTRAL CITATION R/SCR.A/2972/2022 JUDGMENT DATED: 18/03/2024 undefined Court, is deprecated. What is the fact of Ashok Ghantiwala (Supra) and other judgments of this Court, have not been referred and discussed and therefore, the attempt on the part of the Revisional Court saying that, the judgment of the Gujarat High Court are distinguishable on facts, is contrary to the law as in a casual manner, without assigning any sufficient reasons, the findings of this nature arrived at only with a view to deviate from the observations made by this Court in the case of Ashok Ghantiwala (supra). It is unfortunate that the courts below have made an attempt to distinguish the judgment of this High Court without looking at the substance and the principle laid down therein
15. For the reasons recorded, without examining the other issues, as raised herein, the orders passed by the courts below are not sustainable in law, as both the courts below recorded their findings by ignoring the decisions of this Court, as discussed above. In such circumstances, the order passed below Exh. 12 dated 23.12.2019 in CC No. 7302 of 2013 and the order 29.12.2021 passed in Criminal Revision No. 4 of 2021 are quashed. The matter is remanded to the trial Court to decide Exh. 12 afresh on its own merits in accordance with law and decide the same within 4 months from the date of receipt of this Court.
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16. The observations made herein are tentative and prima-facie in nature, only to decide the issue of binding nature of the High Court judgment and nothing more. Rule is made absolute to aforesaid extent. Direct service permitted.
(ILESH J. VORA,J) P.S. JOSHI Page 17 of 17 Downloaded on : Tue Mar 19 20:45:00 IST 2024