Dilipkumar Chandrakant Shah vs State Of Gujarat
2024 Latest Caselaw 742 Guj

Gujarat High Court

Dilipkumar Chandrakant Shah vs State Of Gujarat on 30 January, 2024

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     R/CR.MA/7266/2021                             JUDGMENT DATED: 30/01/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 7266 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
                             Sd/-
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1      Whether Reporters of Local Papers may be allowed                No
       to see the judgment ?

2      To be referred to the Reporter or not ?                         Yes

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         DILIPKUMAR CHANDRAKANT SHAH
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MAHANSHI PATEL for HL PATEL ADVOCATES(2034) for the Applicant.
DARSHIT R BRAHMBHATT(8011) for the Respondent(s) No. 2
DIPTESH R BRAHMBHATT(8407) for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE CHEEKATI
          MANAVENDRANATH ROY

                               Date : 30/01/2024
                               ORAL JUDGMENT

1. This Criminal Misc. Application under section 482 of the Criminal Procedure Code is filed to quash the F.I.R. being Crime Register No.11204017200113 of 2020 registered with the Chaklashi Police Station for the offences punishable under Section 465, 467, 468, 471 and 120B of the Indian Penal Code.

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2. Heard learned counsel for the petitioner and Shri Hardik Soni, learned APP for the first respondent-state and Shri Darshit Brahmbhatt, learned counsel for respondent no.2, who is the defacto complainant.

3. Facts germane to dispose of this application may briefly be stated as follows:-

3.1 The aforesaid crime was registered against five accused persons. The petitioner is accused no.5 in the above crime. The petitioner is an advocate by profession and is also a Notary. As per the allegations set out in the FIR, it is stated that accused No.1, 3 and 4 along with a woman by name Shardaben Vaghela, who is accused no.2 approached the petitioner that is accused no.5, who is a Notary and introduced accused no.2, as the widow of the Urbhai Rasul Garbar, who is original owner of the land in question. The accused no.5 knowing fully well that she is not the original owner has notarized the power of attorney executed by accused no.2 impersonating herself as that woman, i.e. owner of the land, who is widow of one Urbhai Rasul Garbar and thereby all the accused conspired together and resorted to commission of offence of impersonation, forgery and fabrication of a false power of attorney to grab the said landed property.

3.2 On the report lodged by second respondent, the aforesaid crime came to be registered against accused nos.1 to 5. The case was investigated and eventually charge-sheet was filed by the police for the offences punishable under

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Section 465, 467, 468, 471 and 120B of IPC on the file of learned Third Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Nadiad.

3.3 The learned Magistrate has taken cognizance of the said case against all the accused including the present petitioner that is accused no.5. After framing of charges, the case is now pending for trial before the trial Court.

4. The petitioner who is accused no.5 sought quash of the criminal proceedings initiated against him on the ground that the prosecution was initiated against him in relation to the acts done by him in his official capacity as a Notary and as such, in view of the mandate of Section 13 of the Notaries Act, 1952 no Court shall take cognizance of any offence committed by a Notary in the exercise of or purported exercise of his functions under this Act except upon a complaint in writing made by an officer authorized by the Central Government or the State Government by general or special order in this behalf.

4.1 Therefore, it is vehemently contended by the learned counsel for the petitioner that the criminal proceedings initiated against the petitioner, who is a Notary, by way of registration of FIR by police and thereafter by way of filing charge-sheet against him is illegal, and he would further vehemently contend that the learned Magistrate also grossly erred in taking cognizance of the case against the petitioner, who is a Notary on the basis of charge-sheet filed by the police, contrary to the mandate of Section 13 of the Notaries

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Act. Therefore, he contends that the order taking cognizance is ex-facie illegal on the face of it and the criminal proceedings initiated against the petitioner are liable to be quashed on that ground.

5. In order to appreciate the said contention of the learned counsel for the petitioner, it is expedient to go through Section 13 of the Notaries Act and it reads thus:-

"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 authorized 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."

6. A bare reading of the aforesaid Section makes it manifest that express bar is engrafted on the Court to take cognizance of any offence against a notary relating to any offence said to have been committed by him in exercise or purported exercise of his function under the Act. It is only upon a complaint in writing filed by an officer authorized by the Central Government or the State Government by a general or special order in this behalf that the Court is empowered to take cognizance of the offence against the petitioner, who is a Notary. It is a protection that is afforded to the Notary from being maliciously prosecuted in respect of the acts done by him or purported to be done by him in exercise of his functions under the Act. Therefore, in view of the bar contained in

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Section-13 of the Act, registration of FIR by the police against the petitioner who is notary is legally unsustainable. Similarly, taking cognizance of an offence against the petitioner, who is a Notary, by the Court on the basis of the charge-sheet filed by the police is also legally not valid and it is clearly hit by Section 13 of the Notaries Act. The learned Magistrate ought not to have taken cognizance of the offence against the petitioner, who is a Notary on the basis of the charge sheet that was filed by the police. The learned Magistrate has completely ignored Section 13 of the Act, which mandates that the Court shall not take cognizance of an offence against the Notary, except upon a complaint in writing made by an officer authorized by the Central Government or the State Government.

7. Complaint is defined under section 2(d) of the Criminal Procedure Code and it reads thus:-

"(d) complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

8. Reading of the definition of 'complaint' along with Section 13 of the Notaries Act makes it manifest that only when an allegation is made orally or in writing to a Magistrate to take cognizance under the Code against a person, whether known or unknown relating to an offence then only cognizance of the same can be taken. The definition clearly excludes police report which is otherwise called charge-sheet. Therefore, the

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cognizance that was taken for the said offence on the basis of the charge-sheet against the petitioner by the trial Court is legally unsustainable and is liable to be quashed.

9. In fact, the legal position whether a notary can be prosecuted by taking cognizance of the offence on the basis of a charge-sheet is no more res-integra and the same has been well settled by this Court. Two co-ordinate Benches of this Court had an occasion to deal with similar issue earlier. In Ashokbhai Rameshchandra Ghantivala v. State of Gujarat reported in 2009 SCC Online Gujarat 2203, similar issue fell for consideration before this Court. There also, cognizance of an offence against Notary on the basis of similar allegations was taken by the Court on the basis of the charge- sheet filed by the police. After considering the bar contained in Section 13 of the Notaries Act, this Court clearly held that in view of express bar contained in Section-13 of the Act, taking cognizance of an offence against Notary on the basis of a charge sheet, without there being a complaint filed by the authorized officer is bad in law and thereby quashed criminal proceedings initiated against a Notary.

10. In the case of Bharatkumar Mulabhai Kanthariya v. State of Gujarat reported in 2019 SCC Online Gujarat 765 also this Court has taken a similar view and held that in view of Section 13 of the Notaries Act, there is a bar to take cognizance of the offence against a notary. It also held that criminal proceedings initiated against a Notary without following the mandate contained in Section 13 of the Act are liable to be quashed.

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11. The Bombay High Court has also taken a similar view in the case of Chandmal Motilal Bora v. State of Maharashtra reported in 2003 SSC Online Bombay 762.

12. Thus, this Court and other High Courts have consistently held that cognizance of an offence against a Notary in respect of offence, said to have been committed in discharge of his functions under the Act, taken without a complaint filed by the authorized officer in terms of Section 13 of the Notaries Act is bad in law and that if cognizance of offence is taken by the Court on the basis of charge-sheet that is filed by the police, then the same is liable to be quashed.

13. Now it is well settled that when express bar is engrafted under an enactment to take cognizance of an offence against any individual or authority and if the prosecution is launched contrary to the said mandatory requirement, then it is a valid ground to quash the criminal proceedings.

14. Way back in 1960 itself, the Apex Court in the case of R.P. Kapur v. State of Punjab reported in AIR 1960 SC 866 clearly held that when there is a legal bar engrafted under an enactment to prosecute or to take cognizance of an offence and if the criminal proceedings are launched and cognizance of offence was taken contrary to the said mandate of law, those criminal proceedings are liable to be quashed. The same law is subsequently reiterated by the Apex Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604. The said judgment is now an authoritative pronouncement on

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the law of quashing criminal proceedings under Section 482 of the Criminal Procedure Code.

15. In light of the law discussed above, the cognizance of offence taken by the trial Court against the petitioner-accuse no.5, who is admittedly a Notary, on the basis of the charge- sheet that was filed by the police contrary to the express bar engrafted in Section 13 of the Notaries Act is clearly unsustainable in law and criminal proceedings against the petitioner are liable to be quashed.

16. Therefore, the petition is allowed. The order of taking cognizance of the offence and the criminal proceedings that are now pending against the petitioner i.e. accused no.5 alone in Criminal Case No.1812 of 2020 on the file of learned Third Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Nadiad, are hereby quashed. The criminal proceedings in the said case against other accused that is accused nos.1 to 4 can be continued. Further, the prosecution is at liberty to launch criminal proceedings against the petitioner, who is accused no.5, in compliance with Section 13 of the Notaries Act by way of filing a complaint by the authorized officer as contemplated in Section 13 of the Act if they intend. If any such complaint in terms of Section 13 of the Act is filed and cognizance of offences is taken on the basis of said complaint, then prosecution is at liberty to take steps to take up joint trial of the two cases. Direct service is permitted.

(CHEEKATI MANAVENDRANATH ROY, J) R.S. MALEK