THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL PETITION No.6701 OF 2013
ORDER :
This criminal petition is filed by the petitioner/accused No.4 under Section 482 of Criminal Procedure Code (for short 'Cr.P.C.') seeking to quash the charge-sheet against him in CC No.46 of 2017, which is split up from CC No.85 of 2012, on the file of the learned XII Additional Chief Metropolitan Magistrate, Hyderabad.
2. Heard Sri Mohd.Azhar, learned Counsel the petitioner and Sri Vizarath Ali, learned Assistant Public Prosecutor, representing learned Public Prosecutor for the State/respondent.
3. The main accusation against the petitioner in CC No.46 of 2017 was that the petitioner, being an advocate and notary public, notarized signatures on share transfer 7-B Forms, which were showing alleged transfer of shares 10,000, 15,400 and 55,400 on 25.09.2002, 30.09.2002 and 06.11.2002 respectively pertain to LW3 to LW1's firm M/s.Transgene Biotek Limited by accused No.3 in lieu of hand loan of Rs.25,00,000/- taken by A1. Further, the signatures therein of LW3 were disputed and hence, they wrote a letter dated 08.10.2002 to the petitioner to confirm attestation but no reply was reciprocated. Subsequently, accused No.3 sent legal notice dated 10.10.2002 to LW1's firm requesting to effect the transfer of shares but the Page 2 of 5 respondent No.2 company gave reply stating that the signatures of LW3 on the share transfer certificates were forged and requested to take action against the concerned persons. Accordingly, Crime No.496 of 2003 for the offences punishable under Sections 406, 419, 420, 465, 468 and 471 of Indian Penal Code (for short 'IPC') read with Section 156(3) of Cr.P.C., on the file of SR Nagar Police Station has been registered. As per the contents of charge-sheet, it is the allegation of the prosecution that the petitioner along with other accused facilitated the occurrence of offence in furtherance of common intention of cheating and forgery by attesting 7B share transfer forms in the absence of share transferor and witnesses.
4. The contention of the petitioner is that the case against him is clearly hit by the provisions of Notaries Act, 1952 since the Government or the competent authority appointed alone has jurisdiction to initiate prosecution against him under Section 13 of the Act. Further, as per Section 190(1) of Cr.P.C. no Magistrate can take cognizance against the notary. He further contended that if he is subjected to undergo the trial, there is a likelihood of subjecting him to great hardship and irreparable loss and injury. Stating thus, learned counsel for the petitioner relied upon the following decisions : Page 3 of 5
(1) T.Senthilkumar Vs. Karikalan and others 1. (2) Harishkumar Balchandra Rajput Vs.State of Gujarat 2.
(3) VP Jyotsna Vs. State of Kerala 3
(4) C.Elangovan Vs. State through the Inspector of Police,
Chennai 4.
(5) Mohammed Zulfekharuddin Vs. The State of
Maharashtra and others 5.
(6) Ratna Vs. The State of Karnataka and another 6.
(7) V.Ramakrishnan Vs. State through its Inspector of
Police 7.
(8) MG Uthappa Vs. State of Karnataka 8.
The main crux of the above citations, in brief, is that mere notarizing a document by the notary public, cannot fasten liability upon him if the said document became pivotal of any conspiracy or fraud.
5. On the other hand, learned Assistant Public Prosecutor submits that the investigation revealed prima-facie material against the petitioner showing his collusion with other accused in cheating and committing fraud in respect of share transfer certificates and hence, the same requires full-fledged trial and the petitioner cannot be discharged at this premature stage.
1
CDJ 2021 MHC 3637 2 CDI 2021 GHC 557 3 CDJ 2020 Ker. HC 1103 4 CDJ 2016 MHC 5196 5 CDJ 2014 BHC 613 6 CDJ 2014 Kar. HC 753 7 CDJ 2014 MHC 1960 8 CDJ 2013 Kar. HC 1082 Page 4 of 5
6. The Court below has taken cognizance of the charge-sheet by assigning CC No.85 of 2012. However, subsequently, the case against A1 and A4/petitioner herein was split-up and numbered as CC No.46 of 2017 and that the main case in CC No.85 of 2012 against the accused Nos.2, 3 and 5 ended in acquittal vide judgment dated 25.03.2017 on the file of the learned II Additional Metropolitan Magistrate, Hyderabad due to lack of sufficient and corroborating evidence.
7. Section 13 of Notaries Act, 1952 denotes 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 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.
8. Law is well settled in this regard that the notary may, in performance of his duty, likely to do some act as requested by his client notarizing a document and at that stage he may not know as to what would be the consequences of that document and the prosecution initiated against such client with regard to the said document cannot drag him into its arms.
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9. In that view of the well settled preposition of law stating that a notary cannot be held liable for notarizing a document, which is a part of forgery or conspiracy, and also in view of acquittal recorded against accused Nos.2, 3 and 5 in CC No.85 of 2011 by the learned XII Additional Chief Metropolitan Magistrate, Hyderabad, this Court is of the considered view that continuation of proceedings against the petitioner is nothing but abuse of process of Court as no conviction, basing upon the evidence and circumstances, can be get by the prosecution against the petitioner. It is a fact to be noted that CC No.85 of 2011 was ended in acquittal due to lack of sufficient evidence. The same evidence and circumstances also applies to the case on hand. In these circumstances, this petition deserves to be allowed.
10. In the result, this criminal petition is allowed quashing the impugned proceedings against the petitioner/A4 in CC No.46 of 2017, which is a split up case from CC No.85 of 2012, on the file of the learned XII Additional Chief Metropolitan Magistrate, Hyderabad. Interlocutory applications, if any pending, shall stand closed.
____________________ E.V.VENUGOPAL, J Dated : 17-10-2023 abb