Gujarat High Court
Jeetendrasinh Joravarsinh Gohil vs State Of Gujarat on 9 February, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/1955/2016 ORDER DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1955 of 2016
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JEETENDRASINH JORAVARSINH GOHIL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
A R ROCKEY(7592) for the Applicant(s) No. 1
MR. HARDEEP L MAHIDA(7112) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR PV PATADIYA(5924) for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/02/2023
ORAL ORDER
1. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") for quashing the FIR bearing CR no.I-77/2015 registered with Koth Police Station, Ahmedabad Rural for offences punishable under Sections 465, 467, 468, 471, 120B of the IPC and to terminate all the subsequent proceedings in connection with the FIR. Page 1 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023
2. Mr. Mahida, learned advocate for the applicant submits that the applicant is a practising advocate mainly in District Court, Narmada at Rajpipla and he has been practising since the year 1999 and had built up an impeccable reputation in the District Court, Narmada at Rajpipla by his sheer hard work and sincerity as an advocate and as a result, the State Government had appointed him as District Government Pleader from March, 2012.
3. Mr. Mahida submits that the applicant had performed the work as a notary, as accused no.1 advocate - Dharmendrasinh Gohil had approached the present applicant on 9.9.2011 and had requested for notarizing two documents, one being an affidavit and another affidavit of relinquishment, Mr. Mahida submits that advocate - Dharmendrasinh Gohil was known to the applicant since he is also a Page 2 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 practising advocate of District Court, Narmada and all the blank areas of documents were filled in by advocate - Dharmendrasinh Gohil and in affidavit of relinquishment, even the words "identified by me" and other endorsement words as well as other endorsement are written by advocate- Dharmendrasinh Gohil and against that, accused no.1 had signed. It is stated by Mr. Mahida that 7 persons who had identified themselves as persons named in the affidavit of relinquishment had come to the applicant and they had brought their photographs and the photocopies of the identity proofs and had signed and affixed the thumb impression against their photographs and all of them had been identified by accused no.1.
4. Mr. Mahida submits that on account of the fact that advocate - Dharmendrasinh Gohil had brought the accused as well as other persons Page 3 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 to the applicant in good faith and since the advocate had identified those persons, he had not asked for further identity proofs of the persons who have alleged to have impersonated the complainant and his sister.
5. Mr. Mahida submits that the applicant, as a notary, has no role to play and he himself had become victim of the fraud. He further submits that being a notary, necessary permission under Section 13 of the Notaries Act, 1952 has not been sought to file any complaint against the present applicant.
6. The facts alleged by the complainant-
Bipinchandra Raval in his FIR dated 25.12.2015 that survey No.226 of Village Kesargadh is the ancestral property and his brother Yogendra Ambalal Raval, without consent, had got the names deleted of other heirs by revenue entry no.2178 on 17.9.2011 and after retaining his sole name, had sold Page 4 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 the property on 14.11.2011 to Ghanshyam Patel of Katargam, Surat by sale deed no.2977/11.
7. The complainant stated that he had made inquiry from SIT and he came to know that the said property survey No.226 admeasuring 1-52- 77 was of the joint ownership of his father- Ambalal Girdharlal and uncle-Parshuram Girdharlal and Vinayakchandra Girdharlal and after the death of his father, vide entry no.2122 dated 2.5.2011, names of his brother- Yogendra along with his sisters-Pushpaben, Shantaben, Shardaben, Ratikantaben, Niranjanaben and Meenaben were entered and for that, entry was certified by the Circle Officer on 29.8.2011.
8. The complainant has alleged that his brother-
Yogendra had impersonated him and the sisters through some other persons before the present applicant - notary and by false photographs and signature/thumb impression, the Page 5 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 endorsement of "identified by me" was produced before the present notary and it is alleged that the notary, without taking any further evidence of the identity proof of the Deponent, had notarized the affidavit and though had knowledge that false affidavit of relinquishment rights has been used as genuine by his brother - Yogendra and their rights got deleted by entry no.2178 on 17.9.2011.
9. Learned APP for the respondent-State submits that any FIR should be quashed in accordance with the guidelines of the Hon'ble Apex Court and the parameters laid down therein.
10. The issue appears to be between the siblings of the common ancestors. One of the brother appears to have got rights of others deleted. The role of the present applicant, as a notary, would be to notarize the documents. As per the applicant, those persons who had Page 6 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 got the affidavits and relinquishment affidavit notarized are identified by advocate-Dharmendrasinh Gohil. The present applicant, being the notary, would be governed by the Notaries Act, 1952. Under Section 138 of the Negotiable Instruments Act, 1881, the Government of India has the power to appoint notaries public and the Notaries Act, 1952 was brought in force to empower the Central and State Government to appoint notaries not only for the limited purpose of Negotiable Instruments Act, but generally for all recognised notarial purposes and to regulate the profession of such notaries. Section 2(d) defines "notary" who is a person appointed under the Notaries Act, 1952 and thus, Section 13 of the Notaries Act, 1952 clearly lays down as under:-
"13. Cognizance of offence.--Page 7 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023
R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 (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."
11. The Section, thus, clearly lays down that no Court shall take cognizance of any offence committed by a notary in exercise of his functions under this Act only save upon the complaint in writing made by an officer authorized by the Central Government or the State Government by general or special order in this behalf. Sub-section (2) of Section 13 therefore, puts a restriction on Magistrate for taking cognizance unless and until there is a complaint in writing of the officers Page 8 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 authorized by the Central Government or the State Government by general or special order. Here, in this case, the present applicant is appointed as notary by the State Government and the FIR impugned would not suggest that any such authority has been received from the State Government rather the registration of the FIR clarifies the fact that the police, without any authority, has filed the FIR, while Section 13 makes a special provision of private complaint, if at all any offence is found to be committed by the notary and such private complaint can be filed only by the authority authorized by the State Government. Here, no such complaint has been registered against the present applicant by any such authorized person. The police would have no authority to file FIR against the applicant, nor the Magistrate would have any power to take cognizance of the offence against the Page 9 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 applicant since no complaint has been filed by the State Government by any general or special order. Since there is a legal bar against taking cognizance of the offence by the notary, this Court does not find any reason to permit continuation of the FIR against the present applicant-notary public.
12. In case of State of Haryana V. Bhajan Lal & Ors., reported in AIR 1992 SC 604, the Hon'ble Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Hon'ble Apex Court in the said case made the following observations:- Page 10 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023
R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 "8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other Page 11 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted
allegations made in the FIR or
complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no
investigation is permitted by a
police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person Page 12 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
13. Thus, in view of observations and reasons given hereinabove and taking into Page 13 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023 R/CR.MA/1955/2016 ORDER DATED: 09/02/2023 consideration the facts and circumstances of the case, the impugned FIR and subsequent proceedings arising therefrom are required to be quashed and set aside.
14. In the result, the petition is allowed. The FIR bearing CR no.I-77/2015 registered with Koth Police Station, Ahmedabad Rural, and the proceedings initiated in pursuance thereof are quashed and set aside qua the present petitioner. Direct service is permitted.
(GITA GOPI,J) Maulik Page 14 of 14 Downloaded on : Fri Feb 10 20:53:45 IST 2023