Harishkumar Balchandra Rajput vs State Of Gujarat
2021 Latest Caselaw 5682 Guj

     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

=============================================

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 ?

=============================================
                     HARISHKUMAR BALCHANDRA RAJPUT
                                 Versus
                            STATE OF GUJARAT
=============================================
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
=============================================

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

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

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

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

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

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

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

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

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

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

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.

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

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;

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

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,

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