Kerala High Court
Mohandas vs State Of Kerala on 24 May, 2001
Author: G. Sivarajan
Bench: G. Sivarajan
JUDGMENT G. Sivarajan, J.
1. Petitioner, a notary appointed by the State Government under S.3 of the Notaries Act, 1952 (for short 'the Act') was suspended from practice a such for one year by invoking Rs. 13 of the Notaries Rules, 1995 (for short 'the Rules'). The legality of the said order is under challenge.
2. The brief facts are as follows: The Petitioner is an advocate practising at Kozhikode. He was appointed as notary on 19.7.1986. the certificate of practice was renewed from time to time and it was last renewed on 19.7.1998 (Ext.P1). The said term in the normal course expires on 18.7.2001. The notarial records of the petitioner was inspected by the competent authority on 25.11.1997. In such inspection it was noticed that the signatures in the register and the receipt book in respect of 3 items were different. The first respondent by communication dated 28.1.1998 (Ext.P2) sought explanation from the petitioner. The petitioner submitted his explanation by letter dated 12.2.1998 (Ext.P3). Not being satisfied with the said explanation the first respondent issued notice dated 1.4.1998 asking the petitioner to show cause why action as contemplated under R. 13 of the Notaries Rules, 1956 should not be taken against him. The petitioner sent a reply dated 16.4.1998 (Ext.P5) explaining the discrepancy and requested to drop further action in the matter. However, the first respondent with reference to the petitioner's reply asked him to file a fresh statement of defence duly verified in the manner as a pleading in a civil court and to produce all the notary registered before the second respondent within 15 days of the receipt of the said notice. The petitioner complied with the said notice and file Ext.P7 written statement. The second respondent then issued a communication dated 28.11.1998 stating that there is prima facie case against the petitioner and the matter is now referred to the competent authority for detailed enquiry under R. 13(6) of the Notaries Rules, 1956. it was also stated that the irregularities committed by the petitioner amounts to professional misconduct. The petitioner was asked to show cause why action should not be taken against him for the said irregularities. The petitioner then filed a statement on 9.12.1998. The second respondent issued notice dated 29.1.1999 (Ext.P9) asking the petitioner to appear for a personal hearing. The petitioner appeared before the second respondent on 26.2.1999 and thereafter on 3.3.1999 submitted an argument note (Ext.P10) also explaining each points. The first respondent thereafter issued orders dated 27.6.2000 (Ext.P11) suspending the petitioner from practice as a notary for a period of one year from the date of the order.
3. A detailed counter affidavit is filed on behalf of respondents 1 and 2. The gists of the averments are as follows: In the periodical inspection of the notarial registers kept by the petitioner conducted by the competent authority it was noted that the signature of the executant put in the register form was patently different from the signature obtained in the receipt book. These defects are noted in Entry 45 dated 21.3.1997 (Receipt No. 1420), Entry NO. 155 dated 23.9.1997 (Receipt No. 1528) and Entry No. 156 dated 23.9.1997 (Receipt No. 1529). The petitioner had admitted that the deponent has not signed the receipt book and that the petitioner had allowed the person who has accompanied the deponent to forge the signature of the deponent in the receipt instead of obtaining the specific signature of the deponent. Since the explanation given by the petitioner was a not satisfactory Ext. P4 show cause notice was issued to him. The main charge levelled against the petitioner was that he had allowed different persons to sign the register and the receipts for the same notarial action. A detailed enquiry was conduct by the competent authority as directed by the Government. The competent authority submitted a report on 1.4.2000 stating that the petitioner during the personal hearing had admitted that he had allowed the person accompanying the deponent to sign the receipt on behalf of the deponent, that the deponent is not personally known to him and she was introduced to him by the person who accompanied her and that the affidavit sworn by her is intended to produce before a criminal court. The competent authority therefore concluded that the notary has no privilege to obtain the signature of the person accompanying the deponent in the receipt and the action of the notary amounts to professional misconduct. R. 13912)(b) of the Notaries Rules enabled the appropriate Government to 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. The government after considering the report of the competent authority decided to suspend the petitioner from practice for one year and orders were pase accordingly. This was done in full adherence to the provisions of the Notaries Act and Rules. the action of the petitioner in allowing the person accompanying the deponent to sign the receipt is against the circular instruction issued by the Government which will amount to professional misconduct. The Government have issued detailed instructions to the notaries for the maintenance of registers, receipt book, notarial seal, etc. as per circular No 1190/H2/94/Law, dated 30.8.1994 and 4169/H2/94/Law. dt. 14.3.1994 to ensure better service to the public.
4. Sri. M. Ratnasingh, learned senior counsel appearing for the petitioner submits that the petitioner had submitted the circumstances under which the irregularities pointed out by the competent authority in the inspection of the notarial records occurred and has clearly submitted that he will take special care not to repeat such irregularities in future. The senior counsel further submitted that the said irregularities cannot be characterised either as a professional misconduct or a as forgery. The counsel pointed out that there is no case for the respondent that the petitioner had received fees form the person concerned in excess of what is provided under the Act or the Rules.The senior counsel also pointed out that whereas the rules provide for obtaining the signature of the deponent in the notarial registers the circular issued by the Government only requires that the signature of the party must be obtained on the counter foil of the receipt. the senior counsel also submitted that the provisions of the Notaries Act only provides for removal of the name of the notary form the register and that it doe snot provide for suspension of the notary. he also submitted that the provision of R. 13(12)(b) of Notaries Rules in so far as it goes beyond the provisions of S. 10 of the Notaries Act is ultra vires. The senior counsel finally submitted that there is absolutely no justification on the part of the respondent in issuing Ext. P11 order suspending the petitioner from practice as a notary for a period of one year from the date of order.
5. Learned Government Pleader appearing for respondent on the basis of the various averments made in the counter affidavit submitted that the petitioner had committed serious professional misconduct in allowing a person accompanying the deponent to forge the signature of the deponent in the receipt instead of obtaining the specific signature of the deponent. he further submitted that the Government after complying with all the procedural formalities provided in the Act and the Rules imposed only a lesser punishment of suspending the petitioner form practice as a notary for a period of one year. He submitted that the aforesaid action of the respondent is perfectly in order.
6. The petitioner has been initially appointed as a notary on 19.7.1986. It was renewed from time to tie and was last renewed for a period of 3 years with effect from 19.7.1998 evidenced by Ext.P1. The said term expires on 18.7.2001. The notarial registers were inspected by the competent authority and noted that the signature of the executant in R. 11(2) registers was different from the signature procurred in the receipt book in the following 3 cases: (1) Entry No. 45 dt. 21.3.1997, (2) Entry No. 155 dated 23.9.1997 and (3) Entry 156 dated 23.9.1997. the Government sought explanation from the petitioner. he explained that the party who signed Entry 155 dated 23.9.1997 and Entry 156 dated 23.9.1997 was a lady who was in a very advanced stage of pregnancy, that after signing the affidavits and in the register she went down the stairs of has office while the petitioner was engaged in preparing the receipts and that the person accompanying the lady was waiting for the receipts. Since the lady was in an exhausted condition instead of asking her to climb the steep stair case once again the petitioner obtained the signature of the person accompanying her in the receipt book. Regarding Entry 45 dated 23.3.1997 it is stated that though the signature in the register and the receipt book looks slightly different it is signed by the same party. The petitioner had also expressed regrets and also stated that he will take special care not to repeat such defects. the respondents were not satisfied with the aforesaid explanation given by the petitioner and took the view that further action has to be taken against the petitioner. In reply to the show cause notices (Exts.P4, P6 and P8) the petitioner had given the same explanation. the petitioner had also submitted that the action of he petitioner in allowing the person accompanying the executant of the document to put his signature in the receipt book in the circumstances will not amount to any professional misconduct and that the said act cannot be characterised as amounting to forgery. His further case is that the question of forgery arises only when there is "fraudulent and dishonest intention": on the part of the person committing the act and that in the instant case no such intention can be attributed either to the person accompanying or to the petitioner. The party has also got a case that there is no prescribed form for the receipt book, that the receipt book is meant for giving proper receipt for the fee received by the notary and also for the proper accounting purpose of the notary and the circular only says that the notary has to obtain the signature of the party in the counterfoil of the receipt book.
7. In order to consider the question as to whether the Government is justified in suspending the petitioner from practice as a notary as per Ext. P11 order it is necessary to refer to the relevant provisions of the Act. S.4 of the Notaries Act, 1952 provides for maintenance of a register of notaries appointed by the Government and entitled to practice as such in a prescribed form. S. 10 of the Act provides for removal of names from register. As per the said section the Government, appointing any notary, may, by order, remove from the register maintained by it under S. 4 of the name of the notary if he (a) makes a request to that effect; or if he has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practice as notary. S. 15 of the Act gives power to the Central Government to make rules to carry out the purposes of the Act by notification in the official gazette. Sub-s. (2) provides that in particular , and without prejudice to the generality of the foregoing power, such rules may provide inter alia for the fees payable to a notary for doing any notarial act, the form of registers and the particulars to be entered therein and any other matter which has to be, or may be, prescribed. Under sub-s. (3) every such rule made by the Central Government under the Act shall be laid, before each House of Parliament, and shall have effect only after both the Houses have approved it. the Cental Government in exercise of the powers conferred under S. 15 of the Act made the Notaries Rules, 1956. R.10 of the Rules provides for the fees payable to a notary for doing any notarial act. R.11 deals with the transaction of business by a notary. Sub-r. (1) provides that a notary in transacting the business under the Act shall use the forms set forth in the Appendix to these rules. Sub-r. (9) provides that every notary shall grant a receipt for the fees and charges realized by him and maintain a registered showing all the fees and charges realised. R.13 deals with inquiry into the allegations of professional or other misconduct of a notary. Sub-r. (4A) provides that where an inquiry is initiated, suo motu by the appropriate Government, the appropriate Government shall send to the notary a statement specifying the charge or charge against him, together with particulars of the oral or documentary evidence relied upon in support of such charge or charges. Sub-r. (5) provides for forwarding a written statement in his defence verified in the same manner as a pleading in a civil court. Sub-r. (6) provides that if on a perusal of the written statement 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. Under sub-r. (8) it is 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. Sub-r. (9) provides that a notary who is proceeded against shall have right to defend himself before he competent authority either in person or through a legal practitioner or any other notary. Sub-r. (10) provides that 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 consider necessary and during the curse of inquiry, may examine witnesses and receive any other oral or documentary evidence. Sub-r. (11) provides that the competent authority shall submits his repot to the Government entrusting him withe the inquiry. Under sub-r. (12)(a) the appropriate Government shall consider the repot 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. Sub-r. (12)(b) provides that if after considering the report of the competent authority, the 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.
8. Now I will consider the charges levelled against the petitioner and the justification of the order suspending him form practice as a notary for a period of one year. The charges, as already noticed, is that in the registers maintained by the petitioner in some of the entries the signature of the executant in R. 11912) registers is different form the signature on the receipt book. They are in respect of (1) Entry No. 45 dated 21.3.1997 (receipt No. 1420), (2) Entry No. 155 dated 23.9.1997 (receipt No. 1528) and Entry No. 156 dated 23.9.1997 (receipt No. 1529). From the above, it is clear that the case of the respondents is that the signature in the receipt book varied from the signature in the other registers. The petitioner in reply to the show cause notice has clearly stated that the deponent of two affidavits relating to Entry Nos. 155 & 156 dt. 23.9.1997 attested by the petitioner was a lady who was in a very advanced stage of pregnancy, that she after signing the affidavits and in the statutory registers went done stairs while the petitioner was preparing the receipt for payment of fees and that in order avoid the lady again climbing the steep stair case once again in the exhausted condition the petitioner got the signature of the person accompanying her in the receipt book. Regarding Entry No. 45 dated 21.3.1997 the petitioner had stated that though the signature in the register and the receipt book were lightly different it is signed by the same party. The petitioner had also stated that he regrets for the defects noted and that he will take special care not to repeat such defects. In the absence of any material or evidence regarding such irregularities being committed by the petitioner either in the past or subsequently having regard to the nature of the irregularities committed by the petitioner and the regret expressed by the petitioner and the further statement that he will take special care to see that it is not repeated, according to me, this was a fit case for the respondents to drop the proceedings then itself either by accepting the explanation or if at all, with a warning not to repeat the same. This is all the more so because there was no compliant against the petitioner from the deponent of the affidavits in the 3 cases or for any other quarters alleging collection of excess fees from parties. Here, it must also be noted that even after the enquiry conducted by the competent authority appointed by the Government and by the Government nothing could be brought out to show that the petitioner had committed any malpractice or that he had done this with ulterior motive. It is only on the basis of the admission made by the petitioner that he had permitted the person accompanying the executant of the two affidavits (subject matter of Entry Nos. 155 & 156 dated 23.9.1997) to sign in the recept book that the respondents have taken the view that the petitioner had permitted the person accompanying the executant to forge the signature of the executant and that the same will amount to professional misconduct. The question of committing forgery arises only when thee is "fraudulent and dishonest intention" on the part of the person committing the act. Respondents have not alleged any fraudulent or dishonest intention either on the person accompanying the executant or on the petitioner. Respondents also did not have a case that the signature in the receipt book is not that of the person accompanying the executant of the documents.
9. In these circumstances, I am of the view that the respondents were not justified in proceeding against the petitioner and in issuing the order suspending the petitioner from practising as a notary for one year.
10. It is necessary to consider another aspect also. The relevant provi sions of the Act and the Rules have already been referred. The Act does not specifically provide for maintaining any register by a notary appointed under the Act. However, S. 15 of the Act which confers power on the Central Government to make rules to carry out the purposes of the Act, inter alia, provides for the forms of registers and the particulars to be entered therein R.15(2)(e). R. 11 of the Rules which deals with the transaction of business by a notary provides for the forms and registers to be maintained. Sub-r. (2) provides for maintaining a notarial register in Form XV. Sub-r. (9) provides that every notary shall grant a receipt for the fees and charges realised by him and maintain a register showing all the fees and charges realised. Here it must be noted no register for the said purpose is prescribed. In the absence of any prescribed form what is required under the Rules is only to issue a receipt for the fees and the charges realised by the notary and to maintain the register showing the charges realised. This has been done by the petitioner. There is no case that the petitioner did not comply with the above. The rules does not provide for getting the signature of the executant of the affidavit in the register maintained under R. 11(9) of the Rules unlike in Form XV prescribed under sub-r. (2) of R.11 which provides for obtaining the signature of the concerned person.
11. Here it must be noted that Form XV Register is a statutorily prescribed one and the said register has to be scrupulously maintained, for in a case of any dispute regarding the notarial acts done in any proceedings before a court of law or any other authorities the notarial register can be summoned or authenticated extracts of the register can be obtained and produced in evidence. So if any irregularities are committed in maintaining the said register such act will prejudicially affect the party to the notarial act or other third parties. The same may amount to a professional misconduct. But so far as the register contemplated under sub-r. (9) in the absence of prescription regarding the signature of the executant of the document the said register does not become part of the notarial act. Nobody is being prejudicially affected for not obtaining the signature of the executant in the receipt book. The said register is required to be maintained only to verify whether the notary has realised any fees in excess of what is provided under R. 10 of the Rules.
12. The question of doubting the correctness of the amount entered in the said register arises only if a complaint is received from a party. In this case no such complaint is received. Further, the person who accompanied the executant of the affidavit has signed in the fee book. The case of the respondent in the counter affidavit is that though there is no prescription regarding obtaining the signature of the executant in the receipt book the circular issued by the respondent (Circular No. 4169/H2/94/Law dated 17.3.1994) Part III, inter alia, provides that notary has to obtain the signature of the party in the counterfoil of the receipt.
13. Though the State Government is the authority under S. 3 of the Act to appoint notaries for the whole or any part of the State no power has been given under the Act to make any rules for carrying out the purposes of the Act. As such any prescription regarding the details to be contained in the register in addition to what is provided under the Rules may not have any legal efficacy. It may even transcend the limits of a guideline. I do not think it necessary to deal with the validity of the circular mentioned above any further.
14. In the "Law Lexicon' by P. Ramanathan Iyer (1987 Reprint Edition) 'misconduct' is defined as follows: "The term 'misconduct' implies a wrongful intention and not a mere error of judgment".
"The word 'misconduct' is a relative term and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard toe the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct and again "misconduct" in a solicitor justifying the disciplinary jurisdiction of the court is not confined to professional misconduct but extends to conduct, which shows him to be an unworthy member of the legal profession. (Re Weare 1893) 2QB 439". Black's Law Dictionary, Seventh Edition (1999) by Bryan A Garner the meaning given to the term "misconduct" is a dereliction of duty, unlawful or improper behaviour. An affirmative act of misrepresentation of concealment of a material fact; intentional wrongful misbehaviour". "Official misconduct" is defined as "A public officer's corrupt violation of assigned duties by malfeasance, misfeasance or nonfeasance".
15. From the all above definitions of the term 'misconduct' it is discernible that in order to characterise a certain act or omission as a misconduct there must be a wrongful intention or a corrupt motive in the case of a person practising a legal profession, in this case as notary; the conduct must be such that such person in unworthy of continuing in the legal profession. There is no allegation in the present case that the petitioner has done the act complained of with wrongful intent or with any corrupt motive or that by the said act he has become unworthy of continuing as a notary. In the absence of any such allegation or finding it cannot be said that the petitioner is guilty of any professional or other misconduct. The provisions of S.10(d) of the Act and R. 13 of the Rules also supports the said view.
16. I will deal with the matter in a different angel also. S. 10 of the Act gives power to the Government to remove any notary from the register maintained by it under S. 4 of the Act on any of the 4 grounds mentioned therein. They are (1) if he notary makes a request to that effect; (2) if the notary has not paid any prescribed fee required to be paid by him, (3) if the notary is undischarged insolvent; and (4) if the notary has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practice as notary. The Act does not give any power to the Government to suspend the petitioner for any reason. However, R. 13(12)(b) of the Rules gives power to the Government to suspend a notary from practice for a specified period of letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved if the Government after considering the report of the competent authority is of the opinion that action should be taken against the notary. R. 13 deals with inquiry into the allegation of professional or other misconduct of the notary. The punishment contemplated under S. 10 of the Act and also under R. 13(12)(b) of the rules is in respect of professional or other misconduct which renders a notary unfit to practice as a notary. This is specifically made clear in S. 10(d). It is only on a finding entered by the Government to the above effect in an enquiry conducted in the prescribed manner the said orders can be passed. R. 13(1) provides for initiation of inquiry into the misconduct of a notary either suo motu or on a complaint receive din Form XIII. Sub-r. (2) provides that such complaint shall contain particulars such as the acts and omissions which, if provided, would render the person complained against unfit to be a notary. Sub-r. (4A) of R.13 provides for such details to be furnished in the statement of allegations and in the charge. Sub-r. 12(b) read in the context of the aforesaid provisions makes it clear that the Government can pass an order cancelling the certificate of practice/suspending him from practice/letting him off with a warning only if the Government is of the opinion that the conduct of the petitioner is such that it would render a person complained against unfit to be a notary.
17. The allegation in the various communications including the alleged memo of charges issued by the respondent is that he petitioner has committed professional misconduct. There is no allegation in any one of the such communication to the effect that the alleged professional misconduct is of such a nature as to render him unfit to practice as a notary. In Ext.P11 order suspending the petitioner from practice as a notary also thee is no finding to the effect that the alleged professional or other misconduct renders him unfit to practice as a notary. As already noted, in order to proceed under S. 10 of the Act or under R. 13 of the Rules, there must be specific allegation in the memo of charges and statement of allegation to the effect that the petitioner has committed a professional or other misconduct and that it is of such a nature as to render him unfit to practice as a notary. In the absence of an allegation and a finding to the above effect, Ext. P11 order cannot sustained.
18. Viewed from any angle there is absolutely no justification for issuing Ext. P11 order suspending the petitioner from practice as a notary. The respondent have acted arbitrarily and mechanically in passing the said order. I accordingly quash Ext. P11 order. Original petition is allowed as above. In the above circumstances of the case there will be no order as to costs.