Tapubhai Momaya Rathod vs State Of Gujarat
2021 Latest Caselaw 17716 Guj

     R/CR.MA/14374/2020                           ORDER DATED: 25/11/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 14374 of 2020

==========================================================
                          TAPUBHAI MOMAYA RATHOD
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR ANKIT SHAH(6371) for the Applicant(s) No. 1
MR AKSHAT C VIN(10740) for the Respondent(s) No. 2
MR CJ VIN(978) for the Respondent(s) No. 2
MR. PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 25/11/2021

                               ORAL ORDER

1. The petitioner has filed the petition under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No. 11993001200077 of 2020 dated 8.3.2020 registered with Shamkhiyari Police Station, Dist.: Kutch East- Gandhidham qua the present petitioner for offfences punishable under sections 406, 417, 418, 420, 421, 423, 424, 465, 467, 468, 471, 474, 34, 201, and 120B of the Indian Penal Code, 1860 and the proceedings initiated pursuant thereto.

2. The FIR is lodged by Sahdevbhai Khimjibhai Aahir (Bala) against 5 accused persons stating that his father namely Bala Khima Kayabhai was residing with him till 2011 at Karjan and then started residing at Shamkhiyari (Kutch). It is alleged by the complainant that his father has lost his memory and even he does not remember the names of his sons and daughters- in-law and his father does not know about his properties, its

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

market price and he is not even able to read and sign any document. It is alleged by the complainant that his father even forgets the way towards his home and persons from village would come and drop him at home.

2.1 It is further stated in the FIR that on 2.3.2020, the complainant's father was found missing at village Dharana and several persons had gone searching him and on 3.3.2020 at 11.00 a.m. in the morning, the father of the complainant was found.

2.2 The complainant alleges that accused persons have taken benefit of such condition of his father and had executed a bogus Power of Attorney and through the said Power of Attorney, the accused persons have got transferred the properties of the complainant's father in their names. The facts in the FIR suggest that accused No.3 Bala Laljibhai had purchased a stamp of Rs. 100 in the name of accused No.1 Bala Nagjibhai and on 2.1.2019 with the help of accused No.2 L.K.Varchand, who is an advocate, along with accused No.4 Bala Premjibhai, they have made a Power of Attorney in favour of accused No.1 Bala Nagjibhai. It is alleged that the Power of Attorney is identified by advocate accused No.2 L.K.Varchand and later on, the said Power of Attorney was registered on 2.1.2019 with the Public Notary B.N.Bhatt bearing registration No.4.

2.3 The complainant alleges in the FIR that the accused No.1 Bala Nagjibhai had transferred all the plots in his name with the help of Power of Attorney and thereafter sold some of the plots to accused No.4 Bala Premjibhai. As per the record,

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

before the Police, accused No.4 Bala Premjibhai had stated that he has received the said plots by way of inheritance.

2.4 The allegation against the present petitioner who is a notary is that on 1.4.2019, he had notarised the affidavit of the father of the complainant. It is alleged that accused No.2 L.K.Varchand had purchased the stamp paper of the said affidavit and in the said affidavit, the father of the complainant had declared that he had distributed all his properties among all his sons. The complainant alleges that the said affidavit is false and fabricated as his father has lost his memory and by taking undue advantage of his such condition, all the accused in connivance of each other, has made false and forged affidavit .

3. Mr. Brijesh Ramanuj, learned advocate on behalf of Mr. Ankit Shah, learned advocate for the petitioner states that the present petitioner is an advocate and Notary and the affidavit, which is alleged to have been executed before him, is not only by the father of the complainant but was jointly executed by Khima Kancha Bala and Valiben Khimabhai Bala, who is wife of Khima Kancha Bala. Mr. Brijesh, learned advocate submitted that at the time of execution of the affidavit, father of the complainant was staying with his wife at Shamkhiyari, Taluka: Bhachau, District: Kutch, and he is knowing about his arrangement regarding his properties and in the affidavit itself, he states about his sound mental health. Mr. Brijesh stated that the petitioner is a Notary and had no business to further verify any allegation of mental illness, which for the first time has been raised by the complainant in his FIR. The internal dispute of the properties of the family has resulted into lodging

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

of the FIR. The petitioner is a Notary, who is bound to follow the procedures as laid down for Registration of Documents. The deponents of the affidavit were identified before him. Mr. Brijesh, therefore, states that there would be no role of the present petitioner to ascribe any case of forgery or fraud or conspiracy. The affidavit has been duly notarised as per the Notaries Rules. Thus, no cognizance can be taken of such allegation in the FIR unless and until private complaint is filed by the competent authority, under the provisions of Notaries Act.

4. Countering the argument, Mr. C.J.Vin learned advocate for the respondent No.2 states that it is the responsibility of the Notary to have examined the mental health of the deponent and as such when they have specified such mental state in the affidavit. Mr. Vin states that the complainant has filed a Suit which is pending for adjudication.

4.1 Relying on the judgment of Mohammed Yusuf Kasam Lakavat v. State of Gujarat, reported in 2012 (0) GLHEL - HC 226701, Mr. Vin submitted that Section 13 of the Notaries Act would come into play only when the Court would be called upon to take cognizance of the facts. Till then the investigating officer is entitled to carry on with the investigation and, therefore, at this stage no benefit can be afforded to the petitioner since scope should be granted to the Investigating Officer to investigate the fact of collusion, conspiracy and also the allegation of fraud and forgery. Mr. Vin also referred to the judgment of Ashokbhai Rameshchandra Ghantivala v. State of Gujarat & Anr., reported in 2009 (II) GLH 491. Section 13 of the Notaries Act, 1952 is reproduced below for

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

ready reference:

"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."

5. In case of Ashokbhai Rameshchandra Ghantivala v. State of Gujarat & Anr. (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.

6. Here, the case of the present petitioner is regarding notarising the affidavit of the father of the complainant. The allegation being made by the complainant is that the mental health of his father was not sound and, therefore, the execution of the affidavit is not valid and the said is not drawn in the sound state of mind. As per the complainant, till 2011, his father was staying with him at Karjan and thereafter is staying at Shamkhiyari. The age of the father is shown as 89

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

years in the complaint. The affidavit which has been executed before the present petitioner, is by the father as well as the wife of the father. The said affidavit suggest that parents merely acknowledge the fact of distribution of the properties between their children. The affidavit also notes the averment that it has been executed under free will, without any force, coercion and in sound state of mind. The petitioner is a Notary and has undertaken this act in accordance with the Rules. No criminality can be drawn against him. Nothing is brought on record that the complainant has gone by the provisions of the Mental Health Care Act, 2017, to get an order from competent Court for appointment of any guardian of the father alleging that his father is having mental illness. The Mental Health Care Act, 2017 has provisions for determination of mental illness. Section 4 of the Mental Health Care Act, 2017 even with deeming provisions lays that every person, including a person with mental illness, shall be deemed to have capacity to make decisions regarding his mental healthcare or treatment in accordance with the provisions laid down therein.

6.1 The complainant is a son of the said father who alleges that his father is not in sound mental health, but has not gone before any competent Court for getting appointment of guardian to the father's property, rather the affidavit executed by the parents suggest that the properties have been distributed among the children. The present petitioner is a notary and has no further role to play to draw any inference of even of any collusion.

7. The Notaries Act, 1952 came into force, with the object to empower the Central and State Government to appoint

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

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 or other persons who possess such qualifications as may be prescribed. The Central Government, for the whole or any part of India or any State, may appoint, any legal practitioners as Notaries 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 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.

8. The Supreme Court in the case of R.P.Kapur v. State of Punjab, reported in AIR 1960 SC 866 has laid down certain

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

categories of cases for exercising inherent jurisdiction to quash proceedings. One of the said categories is where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged.

9. It is also apt to refer to decision in case of State of Haryana V. Bhajan Lal and others, reported in AIR 1992 SC 604, wherein 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 Code except under an order of a Magistrate within

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

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;

(g) where a criminal manifestly attended where the proceeding is with mala fide and/or 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."

10. 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

R/CR.MA/14374/2020 ORDER DATED: 25/11/2021

securing the ends of justice.

11. In the result, the petition is allowed. The impugned First Information Report being C.R. No. 11993001200077 of 2020 dated 8.3.2020 registered with Shamkhiyari Police Station, Dist.: Kutch East- Gandhidham and the proceedings initiated pursuant thereto are quashed and set aside qua the present petitioner. Rule is made absolute.

(GITA GOPI,J) SAJ GEORGE