Bombay High Court
Jayashri Kishabapu @ Kishor Jangam vs The State Of Maharashtra And Another on 18 February, 2025
2025:BHC-AUG:4728
929-*Cri-WP-1471-2023-Judgment.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1471 OF 2023
Smt. Jayashri Kishabapu @ Kishor Jangam
Age: 61 years, Occ: Housewife,
R/o: 712, Bazarpeth, Swami Vivekanand Chowk,
Tq. Sangamner, Dist: Ahmednagar ... PETITIONER
VERSUS
1) The State of Maharashtra
Through its Secretary
Home Department,
Mantralaya, Mumbai
2) Radhakishan Sayaji Shinde
Age: 66 yrs, Occ: Advocate
R/o: Vakil Colony, Sangamner,
Tq. Sangamner, Dist: Ahmednagar ... RESPONDENTS
....
Mr. P. D. Digraskar, Advocate h/f Mr. M. C. Swami, Advocate for
the Petitioner
Mr. K. K. Naik, APP for Respondent No.1
Mr. S. K. Shinde and Mr. V. S. Bedre, Advocates for Respondent
No.2
....
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 07.02.2025
PRONOUNCED ON : 18. 02.2025
JUDGMENT :
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1. Rule. Rule made returnable forthwith. With the
consent of both the sides heard finally at the stage of admission.
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2. By the present Petition under Article 226 and 227 of the
Constitution of India, the Petitioner takes exception to the order
dated 12.05.2023, passed by the learned Additional Sessions
Judge, Sangamner, in Criminal Revision No.22 of 2022, thereby set
aside order of issuance of process passed by the learned
J.M.F.C.,/3rd Joint civil Judge, Junior Division, Sangamner, on
30.04.2022, below Exh.1 in Criminal M.A. No.714 of 2021.
3. The present Petitioner is the original complainant and
the present Respondent No.2 is the original accused No.3 in
Criminal Misc. Application No.714 of 2021. For the sake of brevity,
the parties to the present Petition hereinafter will be referred to in
their original capacity.
4. The complainant filed a Criminal complaint bearing
M.A. No.714 of 2021 and thereby prayed for initiation of criminal
proceeding against Accused Nos. 1 to 3 for offences punishable
under Section 467, 468, 420 read with Section 34 of Indian Penal
Code (hereinafter referred as IPC).
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5. The complainant alleged that, the accused No.1 is her
daughter-in-law, accused No.2 is an L.I.C. agent and Accused No.3
is a Notary Advocate. Her son and husband of the Accused no. 1
namely Dr. Amol Jangam, was a Covid-19 warrior and he died due
to a Covid-19 infection while treating patients in the Hospital. The
State Government declared awarding of monetary relief of
Rs.50,00,000/- (Rupees Fifty Lakh) toward compensation due to
death of her son Dr. Amol. However, the accused No.1, her
daughter-in-law, in collusion with accused Nos. 2 and 3
fraudulently Notarized the document falsely showing her consent
for withdrawal of compensation amount in favour of accused No.1.
The complainant further alleged that, the accused Nos. 1 to 3 have
manufactured false and fabricated documents and got notarised
said documents, therefore, the Accused has committed offences
under Section 467, 468, 420 read with Section 34 of I.P.C.
6. On 30.04.2022, the learned J.M.F.C./ 3 rd Joint C.J.J.D.
Sangamner, passed an order and issued process under Section 467,
468, 420 read with 34 of I.P.C., against accused No.1 daughter-in-
law (wife of deceased) and the accused No.3 the Notary but
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dismissed the complaint as against accused No.2, L.I.C. Agent on
ground that, the accused No.1 in collusion with accused No. 3
executed Notary document "Article "F", which is registered by
accused No.3 though the Petitioner was not present while
execution of the document Article "F". Since, the accused No.
3/Respondent No.2 got registered the said document, hence, he
with common intention committed offences and helped the accused
No.1 to fraudulently withdraw the compensation.
7. Being aggrieved by order of issuance of process dated
30.04.2022, the Accused No.3 filed Criminal Revision No.22 of
2022 before the Sessions Court. On 12.05.2023, the learned
Additional Sessions Judge, Sangamner, passed the impugned order
holding that, the Accused no. 3, being a Public Notary under the
Notaries Act and notariesed the Affidavit Article-F in violation of
provisions of Notary Act and Rules with an intention to
misappropriate amount of compensation, which is professional
misconduct. Therefore, the Respondent no 3 can only be
prosecuted by the competent officer authorised by the State or
Central Government as provided under Rule 13 of the Notaries
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Rules, 1956. Therefore, the order of issuance of process against
accused no. 2 was set aside. Being aggrieved by said order, the
complainant has presented this petition.
8. The learned counsel for the Petitioner canvassed that,
the learned Revisional Court failed to consider the material and
statement of the present Petitioner that, Respondent No.2 while
discharging the duty being a public Notary, in collusion with the
original accused No.1, Notarized documents falsely showing that,
the complainant/ Petitioner has consented for withdrawal of
compensation amount in favour of the Accused no. 1 though she
(Petitioner) was not present before the Respondent No.2 Notary
while execution of the Affidavit. So also, the documentary
evidence and police inquiry report reveals that on the day of
execution of Article "F" Notary Affidavit, the present
Petitioner/complainant was not present before the Accused No. 3.
As per the CDR of the petitioner's mobile show that, she was at a
different location than where Article "F" Notary Affidavit has been
executed. However, the learned revisional Court passed the
impugned order without considering primary evidence available on
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record. Therefore, prayed to quash and set aside the impugned
judgment and order.
9. The learned counsel for the Petitioner further canvassed
that, Section 13 of the Notaries Act provides about taking
cognizance of offence. Section 8 of the Notaries Act provides
functions of the Notaries. The protection under the Notaries Act is
provided only in cases of vexatious litigation, however, in case-in-
hand, there is prima-facie documentary evidence emerging from
judicial and police inquiries, indicating involvement of the
Respondent No.2/Accused no. 3 while commission of the offence
under Sections 467, 468, 420 read with 34 of I.P.C. Therefore,
Respondent No.2/Accused no. 3 has not made out a prima-facie
case for discharge from the said offences.
10. In support of these submissions, the learned counsel for
the Petitioner placed reliance on the judgment dated 06.06.2023
passed by the Coordinate Bench of this Court at Nagpur (Coram:
G.A. Sanap, J.) in Criminal Writ Petition No.602 of 2022, Smt.
Seema Hitesh Khandelwal Vs. State of Maharashtra and another ,
wherein it is held that, the accused Notary is not entitled to invoke
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the protection provided under Section 13 of the Notaries Act, 1952.
On face of the record, the accused became part of a conspiracy, as
observed in paragraph 32, thus:-
"32. In my view, the facts of the case on hand and the facts
of the decisions relied upon by the learned Senior Advocate
are clearly distinguishable. The decisions, in my view,
therefore, are not applicable to the case of the accused at this
stage. On the basis of the proposition of law laid down in
those decisions the accused No.5 is not entitled to invoke the
protection provided under Section 13 of the Act of 1952. The
prosecution has come before the Court with the case that the
will deed was forged pursuant to the conspiracy hatched by
the accused. The object of the execution of the will deed was
to deprive the informant of her right in the property. The
accused took the conspiracy to logical end by bringing into
existence the will deed. The accused No. 5, as can be seen
from the prima facie material on record, became part of the
conspiracy. The act of attestation of will deed by accused No.
5, as stated above, would indicate that accused No. 5 shared
the object of the conspiracy. The notary became the part of
the conspiracy to provide authenticity to the will deed. The
material on record is sufficient to attribute the intention and
object to accused No. 5 in the commission of crime. The
notary, as can be seen, succumbed to the wishes of the
remaining accused and became a part of the conspiracy. It is
to be noted that the act of attestation of execution of the will
deed, in the manner stated above, by accused No. 5 was a
master stroke to take the conspiracy to logical conclusion. In
my view, in the backdrop of the above stated stark facts and
evidence, accused No. 5 was not entitled for discharge.
Learned CJM has failed to consider the above position.
Therefore, the order passed by the learned CJM cannot be
sustained."
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11. Per contra, the learned counsel appearing for
Respondent No.2 canvassed in vehemence that, the Respondent
No.2 being a Notary registered Notary Affidavit Article "F" while
discharging his statutory duty contemplated under the Notary Act.
Therefore, if any act is committed while discharging the statutory
duty, the protection under Section 13 of the Notaries Act, is needs
to be extended to Respondent No.2/Accused no. 3. So also, the
complaint as against the Respondent No.2 is not tenable at the
hands of the Petitioner, unless the authorized officer of the Central
Government or State Government lodge a written complaint with
due sanction. The Petitioner has not obtained any such prior
permission to prosecute the Respondent no. 2/accused no. 3.
Therefore, the complaint itself is not tenable. Therefore, prayed for
dismissal of the Petition.
12. In support of these submissions, the learned counsel
for the Petitioner placed reliance on Ayaz Ahamed Khan Vs. The
State of Maharashtra and another, 2013 ALL MR (Cri.) 522 ,
wherein it is held that, the Petitioner is a Notary Advocate
Notarized the document in respect of the owner of the plot of Smt.
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Vinita Deshpande concerning MHADA allotment and subsequently
it revealed that Smt. Vanita Deshpande was abroad at the material
time when the document was purportedly notarized and
consequently, the Petitioner as a Notary has been prosecuted.
Under these circumstances, the Investigator not prosecuted the
advocate who has identified the person before execution of said
document or notarising the same. Therefore, it is held that the
Notary is not expected to know the genuineness of party. Hence,
there could not be the prosecution of the Petitioner notary for the
offences under Section 420, 465, 467, 468, 471 r/w Section 34 of
I.P.C.
13. It further relied on Devyani d/o Govind Ambilwade Vs.
State of Maharashtra and others, 2020 (4) Mh.L.J. (Cri.) 606,
wherein it is held that, no Court is allowed to take cognizance
against the notary unless a complaint in writing is filed by officer
authorized by the Central Government or the State Government.
14. It further relied on the case of Brahmadev R. Dube Vs.
State of Maharashtra and another, 2014(3) Mh.L.J. (Cri.) 234,
wherein it is held thus:-
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"It is submitted that notary public was under an
obligation to take care that the document is signed by a
person who appeared before him and the photograph pasted
on her document belonged to the same person. No doubt,
the notary public was under an obligation to take care that
the deponent who signed the document was the same person
in whose name the document was signed. At the same time,
it cannot be ignored that section 13 not only protects the
notary from the alleged offences committed in exercise of his
functions but it also protects the purported exercise of said
functions. Had the act of notary/petitioner been is totally
extraneous to his duties, the protection under section 13
would not have been available to him."
15. In case-in-hand, it prima-facie appears that, the
Petitioner lodged a Criminal Complaint M.A. No.714 of 2021
alleging that, her son Dr. Amol Jangam was a Covid warrior and
died on 05.05.2021 due to infection of Covid while discharging his
duty being a Medical Officer with Primary Health Centre,
Sangamner. The present Petitioner is one of the legal heirs along
with accused No.1 and her grand-children. However, the accused
No.1 allegedly in connivance with the Respondent no. 2/Accused
No.3 got registered a document Article "F" Affidavit showing that,
the present Petitioner consented for withdrawal of compensation of
Rs.50,00,000/- in favour of accused No.1. As per the witnesses
statement recorded by the Investigating Officer and statement of
the present Petitioner/complainant it shows that, w.e.f. 06.06.2021
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till 21.06.2021, the Petitioner Smt. Jayshri Kishababu Jangam was
at Pathardi and Baramati with witness Shri Vivek Sadashiv
Shelgaonkar. As per tower location of mobile, the Petitioner's
mobile was within the tower location of village Pathardi and
Baramati on the date of execution of Notary Affidavit Article "F".
On 17.06.2021, the accused No.1 in connivance with present
Respondent No.2 Notary advocate executed/notarized Aritcle "F"
alleging that, the present Petitioner consented for withdrawal of
amount of compensation in favour of accused No.1, though she
was not present while registration of Article "F" by the Accused
No.3.
16. In the judgment dated 06.06.2023 passed by the
coordinate Bench of this Court in the case of Smt. Seema Hitesh
Khandelwal, cited (supra) it is held that, when the Notary become
a part of conspiracy to provide an authenticity to the Will-Deed and
the material on record is sufficient to attribute the intention and
object in commission of crime, the Notary is not entitled for
discharge and he is not entitled for the protection provided under
Section 13 of the Notaries Act.
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17. Similarly, in case in hand, material placed on record,
prima-facie appears that the photographs of the Petitioner and her
daughter-in-law are pasted on document Article-F Notary Affidavit.
There is no identification of the Petitioner by any other Advocate.
Thereafter the Respondent No.2/Accused no. 3 has affixed Notary
Seal on it and got notarised Article- G Affidavit. The contents of
Article-F Affidavit shows that, the petitioner/complainant has
consented for withdrawal of compensation amount in favour of her
daughter-in-law Accused no. 1.
18. No doubt the Respondent No.2 is a Notary Advocate
and he is governed under the provisions of Notaries Act and Rules.
Section 8(1)(e) of Notaries Act provides that, " a notary may
administer oath to or take affidavit from any person." Rule 13 of
Notary Rules provides inquiry into the allegations of professional or
other misconduct of a notary either suo-motu by the appropriate
Government or on a complaint received in that regard.
19. In case in hand, on perusal of photo copy of the
notarized document Article-F it appears that, the present
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Respondent No.2/Accused no. 3 has registered the affidavit
without identification of the Petitioner by any other legal
practitioner/Advocate. The deponent Smt. Jayshree Kishabapu @
Kishor Jangam specifically stated said fact on on oath. The
Respondent No.2 being a notary put his seal with the endorsement
that this affidavit made before him. The photograph of Petitioner
and photograph of her daughter-in-law accused no. 1 pasted on the
document. Thereafter the Respondent No.2 has put his seal on it.
Therefore it prima-facie shows that whatever role played by the
Respondent No.2 while execution of Article "F" Notary Affidavit to
conduce the Accused no.1 in furtherance of common intention.
Admittedly, the document Article-F reflect that, the Respondent
No.2 himself confirmed that the deponent person is present before
him. Therefore, it is to be considered the professional
misconduct/negligence. No doubt, Notaries Act differentiate the
misconduct and negligence of the Notary while functioning under
the said Act and Rules. However, considering the role played by
the Respondent No.2 it shows he acted to conduce the Accused no.
1 and he is become a part of the conspiracy while execution of
document Article "F" in absence of the present Petitioner. However,
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the learned revisional Court without considering scope of Section
8(1)(e) of the Notaries Act and Rule 13, quashed and set aside the
process against Respondent No.2 for the offence punishable under
Section 467, 468, 420 read with Section 34 of I.P.C., hence, it is
not sustainable in eyes of law, hence, it is liable to be quashed and
set aside.
20. In view of above discussions, the impugned order dated
12.05.2023 passed by the learned Additional Sessions Judge,
Sangamner in Criminal Revision No.22 of 2022 is hereby quashed
and set aside. The order below Exh.1 dated 30.04.2022 in Cri.M.A.
No.714 of 2021 passed by the learned J.M.F.C. / 3 rd Joint C.J.J.D.,
Sangamner, is hereby restored.
21. Accordingly, the Writ Petition is allowed. Rule is made
absolute in above terms.
[ Y. G. KHOBRAGADE, J. ]
SMS
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