Law Web: Whether Notary Who Acts Contrary To Procedure Under Notaries Act Can Claim Immunity From Prosecution?

I therefore, hold that only when the notary has exercised or

purported to exercise his functions under the Notaries Act, 1952, he can hide behind Section 13 of the Act.

13.Coming to the facts on hand, there is nothing on record

to show that the document in question which was notarised by

the petitioner was also duly notified by him in the notarial

register. The petitioner does not appear to have produced his

notarial register before the investigation officer. Even before me

it was not produced. The petitioner had not demonstrated that

the document in question finds mention in the said register. If

that had been done, I could have come to the conclusion that the

petitioner had acted in a bona fide manner and that the principal

accused had pulled wool over the eyes of the petitioner. In this

case, there is nothing on record to show that the act of the

petitioner fell within the four corners of the statutory frame

work. The Notary must tread on the path laid down by the Act. If during the course of such treading some mishap occurs, the

statute is there to protect him against vexatious prosecution. If

the Notary abandons the statutory path and undertakes an

independent journey, he has to take the consequences and

cannot invoke Section 13 of the Act. In this regard, I may refer

to the decision of the Hon'ble Delhi High Court reported in

(2010) 114 DRJ 343 (Gian Singh v. State). The learned Judge

declined to grant relief in a similar quash petition because there

was no entry of the document involved in that case in the

notarial register. Section 13 will not come to the rescue of those

notaries who exercise their function de hors the procedure set

out in the statute and the rules framed thereunder.

14.In this view of the matter, I dismiss this criminal

original petition as devoid of merits.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 09.03.2020

CORAM :

MR.JUSTICE G.R.SWAMINATHAN

Crl OP(MD)No.2669 of 2020

and

Crl.M.P.(MD) Nos.1396 and 1399 of 2020

Ganapathyvaratha Subramanian Vs.The State

Kader Beevi, the defacto complainant in this case, was a

member of a trust known as “Thenur Thanneer Pandhal”. Lands

were endowed in its favour. Anwar Basha, the first accused in

this case, was appointed as its temporary manager. He

'managed' to enter his name in the revenue records in the place

of the trust in respect of the endowed lands. He also fabricated

a document as if on 19.04.2010 all the members of the trust

including Kader Beevi passed a resolution authorising him to

deal with the said property.

2.The petitioner who is an advocate cum notary notarised

the said document. Armed with these two documents, namely,

patta and the notarised resolution dated 19.04.2010, Anwar

Basha executed documents appointing one Senthil Kumar (A3)

as the power of attorney to sell the lands. Iqbal (A2) signed as

an identifying witness. The trust properties were alienated in

favour of third parties. When this came to the knowledge of the

defacto complainant, she lodged information before the Inspector

of Police, Samayanallur police station. Crime No.302 of 2014

was registered. The matter was investigated and the

investigation officer filed final report against all the four accused,

namely Anwar Basha, Iqbal, Senthilkumar and the petitioner

herein before the learned Judicial Magistrate No.IV (Special

Court for Exclusive trial of Land Grabbing Cases), Madurai. The

Magistrate took cognizance of the offences under Sections 406,

420, 467, 468, 471, 120(B) r/w.109 of I.P.C. The case was taken

on file in C.C.No.9 of 2019 and summons were issued to all the

accused including the petitioner herein.

3.This original petition has been filed for quashing the

proceedings in C.C.No.9 of 2019 on the file of the Judicial

Magistrate No.IV(Special Court for Exclusive Trial of Land

Grabbing Cases), Madurai, in so far as the petitioner is

concerned.

4.The learned counsel appearing for the petitioner raised

only one legal contention. According to him, the impugned

proceedings are not maintainable against the petitioner herein.

The petitioner had not anywhere claimed that the defacto

complainant and the other members of the trust signed in his

presence. He had merely notarised the document in question.

Even if the document turns out to be a forged one and the

petitioner had committed an offence, in view of Section 13 of the

Notaries Act, 1952, the jurisdictional magistrate could have

taken cognizance of the offence only if a complaint to that effect

had been filed by an authorised officer. The court below could

not have taken the case on file on the basis of a police report.

According to him, the issue is squarely covered by the decision

reported in CDJ 2003 BHC 214 (Chandmal Motilal Bora v. State)

and the decisions of the Madras High Court, namely, (2017) 1

MLJ (Crl) 475 (C.Elangovan V. State), Crl.R.C.(MD)No.208 of

2014 dated 16.09.2014 (V.Ramakrishnan V. State through its

Inspector of Police) and Crl.O.P.(MD)No.25534 of 2007 dated

04.03.2010 (K.Ramakrishnan V. Rajesh Kataria). The

petitioner's counsel would also point out that quite a few other

High Courts have also taken the very same view. One such

decision is reported in (2019) SCC Online CHH 48 (Rajkumar

Mishra V. Gurjeet Kaur Bajwa).

5.Per contra, the learned Government Advocate (Crl. Side)

contended that Section 13 of the Act will have no application to

the case on hand in as much as there was conspiracy among the

accused to grab the property in question. According to the

prosecution, the petitioner had abetted the commission of the

offence of forgery and that therefore, this is not a case for

exercising the inherent powers of this Court. He placed reliance

on the decision of the Karnataka High Court made in Criminal

Petition No.7603 of 2015 dated 27.06.2019 (M.Rathnakar V.

State of Karnataka). He also pointed out that the Hon'ble High

Court of Madhya Pradesh vide order dated dated 02.04.2019 in

CRR-1306-2019 (Kailash Narayan V. State of Madya Pradesh)

chose to distinguish V.Ramakrishnan V. State (Crl.R.C.(MD) No.

208 of 2014).

6.I carefully considered the rival contentions and perused

the materials on record.

7.It is beyond dispute that the petitioner notarised the

document dated 19.04.2010 which purports to be the resolution

passed by the trustees. The resolution ostensibly contains the

signatures of as many as 23 trustees. The defacto complainant

Kader Beevi is figuring at serial No.21. She had denied the

signature attributed to her. The document also contains the

signature attributed to one Noor Ali. He had passed away as

early as on 28.05.2008. It prima facie appears that the document

dated 19.04.2010 is a rank forgery. Now the question that

arises for my consideration is whether the petitioner can be

prosecuted on the strength of a police report for having notarised

such a document and whether Section 13 of the Act will come to

his rescue.

8.Section 13 of the Notaries Act 1952 reads 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 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 office punishable under this Act.

The aforesaid provision is animated by a public policy. Notarised

documents have a presumptive value attached to them. One

may profitably go through the erudite decision of the Hon'ble

Mr.Justice P.B.Mukharji reported in AIR 1967 Cal 636 (In Re :

K.K.Ray Private Limited) to understand the historical origin

and significance of the institution of notary. If there is no

protective provision like Section 13 of the Notaries Act, a Notary

could be implicated in any number of cases. A Notary will not be

personally aware of each and every person who comes to him.

He will certainly not know the truth underlying the documents.

Therefore, I cannot have any quarrel with the proposition laid

down in the decisions relied on by the petitioner's counsel. But

the issue that calls for resolution in this case is a little different

and more nuanced. Section 8 of the Notaries Act sets out the

functions of a Notary. The question is whether even a reckless

or malafide discharge of notarial functions would still attract the

protective shield of Section 13 of the Act. In my view, the key

lies in a proper understanding of the expression “under this Act”

occurring in the said provision. In other words, only if the

notarial function has been discharged under the Act, Section

13(1) of the Act will kick in and not otherwise.

9.Section 8 of the Act catalogues the functions of notaries.

A Notary may by virtue of his office verify, authenticate, certify or

attest the execution of any instrument. Authentication has been

defined in P.Ramanatha Aiyar's Advanced Law Lexicon, 5th

Edition, as the process of validating the identity of someone or

something; a process is used to confirm the identity of a person

or to prove the integrity of the specific information; statement

that something is true, such as an auditor's signature on a

company's accounts. Rule 11 of the Notaries Rules, 1956, sets

out the statutory norms for discharge of the notarial functions.

It reads as follows :

“11.Transaction of business by a notary.- (1) A

notary in transacting the business under the Act shall

use the Forms set forth in the Appendix to these

rules. 1

[(2) Besides recording declaration of payment

for honour a notary shall also register notings and

protests made. Every notary shall maintain a notarial

(3) Where any demand of acceptance or

payment or better security has been made by a clerk,

a notary shall, after examination of the entry in the

thereto, and cause the clerk to affix his signature also

to the entry.

(4) Each notary shall, before bringing the

Notarial Register into use, add a certificate on the title

page specifying the number of pages it contains.

Such certificate shall be signed and dated by the

notary.

(5) Every notary shall permit the District Judge

or such officer as the appropriate Government from

time to time appoint in this behalf to inspect his

register at such times, not often than twice a year, as

the District Judge or officer may fix. District Judge or

officer appointed by the State Government will have

power to lodge a report to the appropriate

Government for taking action against a notary.

(6) When the original instrument is in a

language other than English, any noting or protest or

entry in his register which has to be made in respect

of the instrument by a notary may be made either in

that language or in English.

(7) In making presentment of bills or notes a

notary shall observe the provisions of Chapter V of

the Negotiable Instruments Act,1881 (26 of 1881).

(8) The notary may- (1) draw, attest or certify

documents under his official seal including

conveyance of properties; (2) note and certify the

general transactions relating to negotiable

instruments; (3) prepare a Will or other testamentary

documents; and (4) prepare and take affidavits for

various purposes for his notarial acts.

(9) Every notary shall grant a receipt for the

fees and charge realised by him and maintain a

register showing all the fees and charges realised.”

Every Notary has to maintain a notarial register and it must be

in Form XV. It is as under :

Sl.

No.

Dat

Nam

e of

the

nota

rial

act

Name of

executa

nt or

person

concern

ed with

full

address

Conte

nts of

docum

ent

Notarial

fee stamp

affixed

Prescr

ibed

fee

Fee

charg

Sl. no.

receip

t book

Signa

ture

perso

conce

rned

Signa

ture

notar

1 2 3 4 5 6 7 8 9 10 11

10.Section 8 of the Notaries Act, 1952, must be read in

conjunction with Rule 11 of the Notaries Rules, 1956.

Chandamal Motilal Bora on which heavy reliance is placed by the

petitioner's counsel also talks of notifying the notarised

documents in the notarial register. An earlier decision of the

Bombay High Court reported in AIR 1992 Bom 149 (Prataprai

Trumbaklal Mehta V. Jayant Nemchand Shah and

another) holds thus :

“It is the responsibility of a notary to satisfy

himself that the original document intended to be

executed before him was executed by the person

concerned and not by someone else in the name of a

different person. It is the responsibility of the notary

to satisfy himself about the identity of the execution

of the original document by making all reasonable

inquiries including insistence of identification of a

member of the public by a legal practitioner known

to the notary. Unless the executant is known to the

notary personally, the notary must insist on written

identification of the executant by an advocate in

order to minimise the possibility of cheating by

personification.”

Only if a notarial function is discharged in the manner set out

above, it can be stated that the notary has exercised his function

“under the Act”. I am conscious that the provision also employs

the expression “purported”. It only means that at least the

motions must have been gone through. The expression “under”

was interpreted in R V. Clyne ex p Harrap reported in (1941)

VLR 200 as “pursuant to” than as “by virtue of” and that it is

necessary to have regard to the context to determine in which

sense the word is used. This was approvingly cited by the

Hon'ble Supreme Court in N.K.Jain and others V. C.K.Shah

(1991) 2 SCC 495.

11.Oxford Advanced Learner's Dictionary, New 9th Edition,

defines “under” as referring to “who or what controls, governs or

manages something or somebody”. It also means “according to

an agreement, a law or a system”. When we say that India is

under the Constitution, it means that the Constitution controls

and governs the entire democratic system.

12.The expression “under this Act” occurring in Section 13

is thus pregnant with meaning and significance. When Section

13 of the Notaries Act, 1952, comes up for consideration, the

expression “under this Act” cannot be ignored or glossed over.

No part of a statutory provision can be left out of consideration. I

therefore, hold that only when the notary has exercised or

purported to exercise his functions under the Notaries Act, 1952,

he can hide behind Section 13 of the Act.