Gujarat High Court
Harishkumar Balchandra Rajput vs State Of Gujarat on 9 June, 2021
Equivalent citations: AIRONLINE 2021 GUJ 1079
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 20274 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
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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HARISHKUMAR BALCHANDRA RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
MR VIMAL A PUROHIT(5049) for the Applicant(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
MS MONALI BHATT APP(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/06/2021
ORAL JUDGMENT
1. Rule. Ms. Monali Bhatt, learned APP waives service of notice of Rule on behalf of respondent State. The notice was issued by this Court on 23.10.2019. Though Page 1 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 served, none appears for respondent no.2 - original complainant. With the consent of both the sides, the matter is heard finally today.
2. The present application has been filed by the applicant, who is an Advocate-cum-Notary, under Section 482 of the Code of Criminal procedure for quashing and setting aside the F.I.R. being C.R. No.I-25 of 2019, dated 13.03.2019 registered with Adalaj Police Station, Dist.:
Gandhinagar for the offences punishable under Sections 406, 420, 467, 468, 471 and 120B of I.P.C. and the charge-sheet dated 29.06.2019, and further quashing of Criminal Case No.5174 of 2019 pending before the 2nd Additional Chief Judicial Magistrate, Gandhinagar.
3. Few facts relevant for consideration of the present petition are stated hereinbelow:
3.1 The family dispute arose between the complainant and accused nos.1 to 3. The complainant is the son of accused no.3 and brother of accused nos.1 and 2. The present applicant being a Notary has been arrayed as Page 2 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 accused no.4 in the context of Power of Attorney which was executed on 21.05.2004 in favour of the father -
accused no.3. The F.I.R. was lodged and charge-sheet came to be filed.
3.2 The record shows that vide order dated 07.08.2019 in Special Criminal Application No.5101 of 2019, the impugned F.I.R. came to be quashed by this Court qua the father - Jivrajbhai Vastabhai Desai, and by order dated 07.08.2019 in Special Criminal Application No.5102 of 2019 the F.I.R. was quashed qua the other two accused, who are the brothers of the complainant.
4. Learned advocate Mr. Vimal A.Purohoit for the applicant submitted that the family dispute was inter se resolved and the F.I.R. against the co-accused was ordered to be quashed. The police authority filed the charge-sheet against the present applicant, who is a Notary and one Tarangbhai Rohitbhai Dave before whom the Power of Attorney came to be notarized. Mr. Purohit submitted that as per the Search Report before the Sub- Registrar, Gandhinagar, it was revealed that one Page 3 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 'Kabulatno Dastawage' (Confirmation Deed) was executed, registered on 06.01.2020 after quashment of F.I.R. against the accused nos.1, 2 and 3. Mr. Purohit referring to the copy of the said document, registered on 06.01.2020, submitted that the complainant has waived the dispute of the power of attorney, which was created by him in favour of his father Jivrajbhai Vastabhai Desai and on the strength of the said power of attorney, Sale- Deed was registered which has been confirmed by the complainant and now the same stands binding to the parties. The said Sale-Deed was subject matter of dispute between the parties.
5. Advocate Mr. Purohit, submitted that the Investigating Officer ought to have applied his mind and should have taken into consideration the civil disputes between the father and son regarding the family properties. The Confirmation Deed dated 06.01.2020 registered before the Sub-Registrar, Gandhinagar at serial no.532 confirms and affirms the Power of Attorney and registered Sale-Deed No.7366 dated 12.06.2018, whereby the land owned by the complainant came to be Page 4 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 transferred. Mr. Purohit submitted that the present applicant had been joined in the capacity of being a Notary before whom the disputed Power of Attorney came to be executed. Mr. Purohit further submitted that dispute was absolutely civil in nature and when disputing parties have resolved their differences and when alleged power of attorney has been accepted and subsequent Sale-Deed on the basis of Power of Attorney has been confirmed by the complainant, nothing remains in the matter and therefore none of the ingredients under sections 406, 420, 467, 468, 471 and 120B of I.P.C. would be attracted against the present applicant.
6. Mr. Purohit, learned advocate for the applicant vehemently contended that it is the responsibility of the Investigating Officer to follow the provision of the Notaries Act, 1952 and therefore no F.I.R. ought to have been registered against the Notary without any complaint in writing by an officer authorized by the Central or the State Government by general or special order in that behalf. Placing reliance on the provisions of Section 13 of the Notaries Act, Mr. Purohit submitted that no Court can Page 5 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 take cognizance of any offence alleged to have been committed by a Notary in purported exercise of his function under the Notaries Act without any complaint in writing by the officer authorized in terms of sub-section (1) of Section 13 of the Notaries Act.
7. Advocate Mr. Purohit, relying on the judgment of Ashokbhai Rameshchandra Ghantivala Vs. State of Gujarat & Anr., reported in 2009 (2) G.L.H. 491, submitted that the F.I.R. and the Charge-Sheet is abuse of process of law and even abuse of process of Court, as the Court could not have taken any cognizance on the basis of the F.I.R. and the Charge-Sheet which has been filed by the Investigating Officer. He submitted that after the quashment of the F.I.R. against the accused nos.1 to 3 no grievance would remain against the present applicant.
8. Ms. Monali Bhatt, learned APP, submitted that the F.I.R. has been culminated into filing of Charge-Sheet and Investigating Officer has found substance in the case and filed the Charge-Sheet on 29.06.2019 prior to quashment of the FIR qua accused nos.1 to 3 and therefore, the Page 6 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 present application deserves to be rejected.
9. The counter-foil of the Charge-Sheet shows that one Mr. Tarantbhai Rohitbhai Dave and the present applicant has been sent for trial and rest of the co-accused are shown in column no.2 of the Charge-Sheet presented before the Judicial Magistrate, First Class, Gandhinagar on 29.06.2019. Copy of the orders passed by this Court on 07.08.2019 in Special Criminal Application Nos.5101 of 2019 and 5102 of 2019 on record supports the fact that the parties have amicably resolved the dispute which was confirmed by the original complainant, thus, the impugned F.I.R. qua the accused nos.1 to 3 was ordered to be quashed and set aside.
9.2 The present applicant has been joined in the complaint as a Notary before whom the Power of Attorney dated 21.05.2004 was executed. The said power of attorney was alleged to have been forged. The complainant vide Confirmation Deed dated 06.01.2020 registered before the Sub-Registrar, Gandhinagar at Sr. No.532 has accepted the power of attorney as genuine Page 7 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 and consequently the registered Sale-Deed No.7366 before the Sub-Registrar, executed on 12.06.2018, was also confirmed by the complainant. Thus, the grievance of it being forged was waived by the original complainant. Registered Confirmation Deed affirms of the acts and activities of the father - accused no.3 in pursuance of the Power of Attorney. Thus in view of the same, no offence as alleged gets constituted, further so, when the FIR against the accused Nos.1 to 3 is quashed.
10. In case of Ashokbhai Rameshchandra Ghantivala (supra), it has been observed by this Court that Section 13 of the Notaries Act, 1952 puts a mandate on the Court of not taking any cognizance of the offence committed by a Notary in exercise or purported exercise of powers under the Notary Act, without any complaint in writing by an Officer authorized by the Central Government or the State Government who has been authorized by general or special order to make such complaint. In this case, the Charge-Sheet has been filed on the basis of the FIR which has been registered. No complaint by Officer from the Central Government or the State Government has been Page 8 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 made for the Court to take cognizance against the present applicant as a Notary.
11. The Notaries Act, 1952 came into force, with the object to empower the Central and State Government to appoint Notaries, not only for the limited purposes of the negotiable Instruments Act, but generally for all recognized notarial purposes and to regulate the profession of such Notaries. The Central Government, for the whole or any part of India and any State government, for the whole or any part of the State, may appoint as Notaries any legal practitioners or other persons who possess such qualifications as may be prescribed. Section 4A is inserted by an amendment in regard to the State of Gujarat. It makes special provision regarding registered Notaries in Gujarat. Section 8 of the Notaries Act, 1952 lays down the functions of Notaries and Section 10 gives the authority to the Government appointing any Notary by order, to remove from the Register maintained by it under Section 4 the name of the Notary; if is found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Page 9 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 Government, renders him unfit to practice as a Notary, or if is found to be convicted for an offence involving moral turpitude. Section 13 of the Act, read as a whole, provides necessary protection to the Notary since the Court becomes entitled to take cognizance of the offence committed by a Notary in exercise or purported exercise of his functions under this Act, only by complaint in writing from Officer authorized by the Central Government or a State Government. The character, integrity, ability and competence of any person, applying for appointment as a Notary is verified in accordance to the Rules made by the Central Government which are notified in the official gazette for the purpose of Notaries Act.
12. As stated by Mr. Purohit, there is no criminal antecedent against the present applicant, nor any complaint has been lodged by the competent authority of the State Government. There is no any complaint of moral turpitude against the present applicant. The F.I.R., which has been lodged in context of the Power of Attorney executed and registered before the Notary is in Page 10 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 accordance to the functions under the Notaries Act. The complainant of impugned F.I.R. has no grievance against the said execution of Power of Attorney and of the Sale Deed executed by the Power of Attorney holder. The function of a Notary includes an act to verify, authenticate, certify or attest the execution of any instrument.
13. In case of Joseph Salvaraj A. Vs. State of Gujarat & Ors., reported in 2011 LawSuit (SC) 706, the Apex Court has observed that when the Charge-Sheet has been filed, the learned Judge concerned would still examine the Charge-Sheet and the documents etc. for existence or otherwise of the prima facie case against the applicant.
13.1 The Apex Court in case of Anand Kumar Mohatta & Anr. Vs. State (Govt. of NCT Of Delhi) Department of Home And Anr., reported in 2018 LawSuit (SC)1138, has held that if prosecution is malafide and solely intended to harass the applicant, then the FIR and the Charge-Sheet are liable to be quashed. Page 11 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 13.2 In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-
"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 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 Page 12 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 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 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;Page 13 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021
R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021
(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."
14. Here in this case, no cognizance can be taken against the present applicant in terms of Section 13 of the Notaries Act, 1952. It is apparent from the provisions of Section 13 of the Notaries Act that if the offence is committed by 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 and the Court can take cognizance of such offence only if the complaint is made in the manner laid down in the Section. There is no allegation of any moral turpitude. The co-accused, who are reported as father and sons have already resolved their family disputes. The alleged document of Power of Attorney has been affirmed and accepted as genuine. The complainant has no grievance of any allegation of its being forged. The prosecution Page 14 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 appears to be malafide, it is solely with an intention to harass the petitioner since the law does not permit cognizance of offence without following prescribed procedure against the Notary which is a condition precedent. None could be permitted to browbeat the Court proceedings with the weapon of harassment of prosecution and the inherent power of the High Court designed to achieve solitary purpose. The facts, circumstances and the development in the case justifies the quashing of the F.I.R., Charge-Sheet and the other proceedings before the J.M.F.C. against the present applicant. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the applicant for securing the ends of justice.
15. In the result, the application is allowed. The impugned First Information Report being FIR being C.R. No.I-25 of 2019 dated 13.03.2019 registered with Adalaj Police Station, Dist.: Gandhinagar, Charge-Sheet dated 29.06.2019 and Criminal Case No.5174 of 2019 pending before the 2nd Additional Chief Judicial Magistrate, Page 15 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021 R/CR.MA/20274/2019 JUDGMENT DATED: 09/06/2021 Gandhinagar and the proceedings, if any, initiated in pursuance thereof are quashed and set aside qua the present applicant. Rule is made absolute.
(GITA GOPI, J.) Pankaj Page 16 of 16 Downloaded on : Sat Jun 12 00:00:30 IST 2021