Karnataka High Court
Smt. Pushpa Latha. U. K vs State Of Karnataka on 29 July, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.P No. 2251 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 2251 OF 2018
BETWEEN:
1. SMT. PUSHPA LATHA. U. K.
W/O. SRI. M.KRISHNA
AGED ABOUT 77 YEARS
NOW R/AT SHRI HARI NIDDEL
GOKARNA, KULSHEKAR,
MANGALORE,
D.K. DISTRICT-575 001.
...PETITIONER
(BY SRI. RAJASHEKAR S .,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY MANGALORE SOUTH PS
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560 001.
Digitally signed by
POORNIMA 2. JAYAKUMAR
SHIVANNA SON OF LATE KRISHNAPPA
Location: HIGH AGED ABOUT 75 YEARS
COURT OF
KARNATAKA NEAR VISHWAKARMA WOOD INDUSTRIES
RAM KIRODIAN LANE
ASHOKNAGARA
MANGALORE
D.K. DISTRICT-575 001.
...RESPONDENTS
(BY SRI. SHANKAR H.S. HCGP FOR R1;
SRI. RAJESH RAI K., ADVOCATE FOR R2)
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CRL.P No. 2251 of 2018
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE PLEASED TO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.92/2018 ON THE FILE OF II
ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M., MANGALURU, D.K.
FOR THE ALLEGED OFFENCES P/U/S 406,417,418,419,420,465,467,
471 AND 120(B) OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following relief;
"To quash the entire proceedings in C.C.No.92/2018 on the file of II Additional Senior CJ & Chief Judicial Magistrate, Mangalore, D.K. District for the alleged offences punishable under 406, 417, 418, 419, 420, 465, 467, 471, 120B of IPC".
2. The respondent No.2 had filed a private complaint contending that his father had owned certain immovable properties which was let out to accused No.2. His father expired leaving behind four children. It is alleged that accused Nos.2 to 4 with an intention to usurp the aforesaid properties created a forged power of attorney on 20.09.2011 in the name of the accused No.1 who is the wife of accused No.2. It is further alleged that the power -3- CRL.P No. 2251 of 2018 of attorney was executed before the accused No.5 without any attesting witness on the basis of said power of attorney executed on 17.10.2011. Pursuant thereto, another power of attorney came to be executed on 12.01.2012 which has been notarized by accused No.9, who is petitioner herein.
3. In that background, Sri.S.Rajashekar, learned counsel for the petitioner would submit that there is no particular allegation which has been made against the petitioner who was only a notary of the subsequent power of attorney which has been executed. The entire allegation is as regards the earlier power of attorney dated 20.09.2011. On basis of the same, sale deed dated 17.10.2011 came to be executed. The subsequent power of attorney is between Accused No.2 and Accused No.1. Neither of them having complained, there is no cause for filing of criminal proceedings against the notary who has discharged her duties in terms of the Notaries Act, 1952. -4- CRL.P No. 2251 of 2018
4. He further submits that Section 13 of the Notaries Act, 1952 offers a protection to a notary i.e., petitioner herein in discharging of the functions of a notary under the Act. There being no particular allegation against the petitioner of any crime, having been committed beyond the purview of the exercise of the powers under the Notaries Act, 1952. No criminal proceedings could be initiated against the petitioner without authorisation of the Central Government or the State Government. On that basis, learned counsel for the petitioner submits that the above petition requires to be allowed.
5. Sri. Rajesh Rai K, learned counsel for the respondent No.2 would submit that notarization of the second power of attorney having been made with a knowledge of forged power of attorney dated 20.09.2011. On which basis the sale deed dated 17.10.2011 was executed. The petitioner is also complicit in the conspiracy and the matter requires trail.
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6. Heard learned counsel for the parties. Perused the papers.
7. When the complaint initially was filed there is no particular allegations which has been made against the petitioner who was later on arrayed as accused No.9 when the charge sheet came to be filed.
8. A perusal of the charge sheet filed on 26.11.2013 indicates that there is no particular allegation which has been made against the petitioner except the petitioner has notarized the power of attorney. Details of notary and registration etc., have been provided. A notary cannot be found fault with and prosecuted for a crime merely because of a notary having natorized a particular document. It is for that reason, Section 13 of the Notaries Act, 1952, provides protection to such a notary who exercises powers and discharges functions in terms of the Act. Section 13 of the Act reads as under;
"13. Inquiry into the allegations of professional or other misconduct of a notary :- (1) An inquiry into the -6- CRL.P No. 2251 of 2018 misconduct of a notary may be initiated either suo motu by the appropriate Government or on a complaint received in From XIII.
(2) Every such complaint shall contain the following particulars, namely:-
a) The acts and omissions which, if proved would render the person complained against unfit to be a notary.
b) The oral or documentary evidence relied upon in support of the allegations made in the complaint.
3) The appropriate Government shall return a complaint which is not in the proper From or which does not contain the aforesaid particulars to the complaintant for representation after compliance with such objections and within such times as the appropriate Government may specify:
Provided that if the subject-matter in a compliant is, in the opinion of the said Government substantially the same as or covered by, any previous complaint and if there is no additional ground, the said Government shall file the said complaint without any further action and inform the complainant accordingly.
4) Within sixty days ordinarily of the receipt of complaint, the appropriate Government shall send a copy thereof to the notary at his address as entered in the Register of Notaries.
4A) Where an inquiry is initiated, suo motu by the appropriate Government, the -7- CRL.P No. 2251 of 2018 appropriate Government shall send to the notary a statement specifying the charge or charges against him, together with particulars of the oral or documentary evidence relied upon in support of such charge or charges.
5) A notary against whom an inquiry has been initiated may, within fourteen days of the service on him of a copy of the compliant under sub-rule (4) or of the statement of the charges under sub-rule (4A) as the case may be, or within such time as may be extended by the appropriate Government, forward to that Government a written statement in his defence verified in the same manner as a pleading in a civil court.
6) If on a perusal of the written statement, if any, of the notary concerned and other relevant documents and papers, the appropriate Government consider that there is a prima facie case against such notary, the appropriate Government shall cause an inquiry to be made in the matter by the competent authority. If the appropriate Government is of the opinion that there is no prima facie case against the notary concerned, the complaint or charge shall be filed and the complainant and the notary concerned shall be informed accordingly.
7) Every notice issued to a notary under this rule shall be sent to him by registered post. If any such notice is returned unnerved with an endorsement indicating that the addressee has refused to accept the notice or the notice is not returned unnerved within a period of -8- CRL.P No. 2251 of 2018 thirty days from the date of its despatch the notice shall be deemed to have been duly served upon the notary.
8) It shall be the duty of the appropriate Government to place before the competent authority all facts brought to its knowledge which are relevant for the purpose of an inquiry by the competent authority.
9) A notary who is proceeded against shall have right to defend himself before the competent authority either in person or through a legal practitioner or any other notary.
10) Except as otherwise provided in these rules, the competent authority shall have the power to regulate his procedure relating to the inquiry in such manner as he considers necessary and during the course of inquiry, may examine witnesses and receive any other oral or documentary evidence.
11) The competent authority shall submit his report to the Government entrusting him with the inquiry.
12) (a) The appropriate Government shall consider the report of the competent authority, and if in its opinion a further inquiry is necessary, may cause such further inquiry to be made and a further report submitted by the competent authority.
b) If after considering the report of the competent authority, the appropriate Government is of the opinion that action should be taken against the notary the -9- CRL.P No. 2251 of 2018 appropriate Government may make an order-
i) Cancelling the certificate of practice and perpetually debarring the notary from practice; or
ii) Suspending him from practice for a specified period; or.
iii) Letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved.
13) Notification of removal - The removal of the name of any notary from the Register of Notaries from practice, as the case may be, shall be notified in Official Gazette and shall also be communicated in writing to the notary concerned".
9. It is only in the event of a notary committing any act which is beyond the powers and functions discharged under the Notaries Act, i.e., to say if there was any particular conspiracy with the other accused and or if a notary has acted beyond the powers conferred under the Notaries Act, 1952, then proceedings could be initiated against such a notary. In the present case, there is no such allegation which has made against the petitioner. Hence, I am of the opinion that the protection provided
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CRL.P No. 2251 of 2018 under Section 13 of the Notaries Act, 1952 would come to the rescue of the petitioner. As such, petition requires to be allowed.
10. Hence, I pass the following;
ORDER
(i) Petition is allowed.
(ii) The Proceedings in C.C.No.92/2018 filed on the file of II Additional Senior Civil Judge and C.J.M Court, Mangalore City, D.K.District is quashed, insofar as the petitioner who is accused No.9 in the said proceedings.
Sd/-
JUDGE RU