Telangana High Court
T.K.Srinivasan vs The State Of A.P., And Another on 17 October, 2023
Bench: E.V. Venugopal
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
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 :
(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.
CDJ 2021 MHC 3637
CDI 2021 GHC 557
CDJ 2020 Ker. HC 1103
CDJ 2016 MHC 5196
CDJ 2014 BHC 613
CDJ 2014 Kar. HC 753
CDJ 2014 MHC 1960
CDJ 2013 Kar. HC 1082
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.
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
