The Kerala High Court has quashed criminal proceedings against a 72-year-old lawyer and notary public accused of attesting a fabricated consent letter, holding that a complaint by an authorised government officer is necessary for taking cognisance of offence by a notary.
Justice C Pratheep Kumar set aside the proceedings against the lawyer while referring to Section 13 of the Notaries Act.
Justice Kumar held that the prosecution initiated against the petitioner was in violation of the mandate of Section 13(1).
Section 13 (1) of the Notaries Act reads “no court shall take cognisance 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”.
Clause 2 says that no magistrate other than a presidency magistrate or a magistrate of the first class shall try an offence punishable under this Act.
“From the above provision, it is clear that for taking cognisance of any offence committed by a notary in exercise of his functions under the Notaries Act, a complaint made by an officer authorised by the government concerned is necessary,” the order held.
Findings
- Admittedly, the petitioner is a practising lawyer and a notary public.
- It is also admitted that the alleged consent letter was attested by the petitioner in discharge of his function as a notary public.
- For taking cognisance of any offence committed by a notary in exercise of his functions under the Notaries Act, a complaint made by an officer authorised by the concerned government is necessary.
- In Jolsna E P v. State of Kerala and another a coordinate bench had held that compliance of Section 13 is a mandatory requirement for prosecuting a notary public.
- It was held by the coordinate bench that Section 8 authorises a notary public to verify, authenticate, certify or attest the execution of any instrument. At that stage, he may not know the genuineness of the document or the consequences that may come after the execution of the document. If no such protection is granted to a notary, it will be difficult for them to perform their acts as contemplated to be done as a notary.
- Considering this and the decision referred above, the prosecution initiated against the petitioner in violation of the mandate of Section 13(1) is liable to be set aside.
Background
- The allegation was that two accused persons with the help of the petitioner allegedly created a fabricated consent letter purported to be executed by the de facto complainant.
- It was alleged that they produced the same before the Kozhikode Corporation and obtained a license for conducting a cool bar and bakery.
- The offences alleged against the petitioner and the other accused persons were under Sections 465 (forgery), 468 (forgery for cheating) and 471 (using as genuine forged document) of IPC.
- The petitioner-lawyer approached the high court praying for quashing all further proceedings.
- The counsel for the petitioner submitted that the petitioner being a notary public for taking cognizance of any offence committed by him, the mandate of Section 13 of the Notaries Act must be complied.
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