Mr. S. K. Shinde and Mr v. S. Bedre, Advocates for RespondentNo

Legal Reasoning

929-*Cri-WP-1471-2023-Judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1471 OF 2023 Smt. Jayashri Kishabapu @ Kishor JangamAge: 61 years, Occ: Housewife,R/o: 712, Bazarpeth, Swami Vivekanand Chowk,Tq. Sangamner, Dist: Ahmednagar… PETITIONER VERSUS1)The State of MaharashtraThrough its SecretaryHome Department,Mantralaya, Mumbai2)Radhakishan Sayaji ShindeAge: 66 yrs, Occ: AdvocateR/o: Vakil Colony, Sangamner,Tq. Sangamner, Dist: Ahmednagar … RESPONDENTS .…Mr. P. D. Digraskar, Advocate h/f Mr. M. C. Swami, Advocate forthe Petitioner Mr. K. K. Naik, APP for Respondent No.1 Mr. S. K. Shinde and Mr. V. S. Bedre, Advocates for RespondentNo.2.…CORAM: Y. G. KHOBRAGADE, J.RESERVED ON :07.02.2025PRONOUNCED ON :18. 02.2025JUDGMENT :- 1.Rule. Rule made returnable forthwith. With theconsent of both the sides heard finally at the stage of admission. 1 of 14 (( 2 ))929-*Cri-WP-1471-2023-Judgment2.By the present Petition under Article 226 and 227 of theConstitution of India, the Petitioner takes exception to the orderdated 12.05.2023, passed by the learned Additional SessionsJudge, Sangamner, in Criminal Revision No.22 of 2022, thereby setaside order of issuance of process passed by the learnedJ.M.F.C.,/3rd Joint civil Judge, Junior Division, Sangamner, on30.04.2022, below Exh.1 in Criminal M.A. No.714 of 2021.3.The present Petitioner is the original complainant andthe present Respondent No.2 is the original accused No.3 inCriminal Misc. Application No.714 of 2021. For the sake of brevity,the parties to the present Petition hereinafter will be referred to intheir original capacity. 4.The complainant filed a Criminal complaint bearingM.A. No.714 of 2021 and thereby prayed for initiation of criminalproceeding against Accused Nos. 1 to 3 for offences punishableunder Section 467, 468, 420 read with Section 34 of Indian PenalCode (hereinafter referred as IPC). 2 of 14 (( 3 ))929-*Cri-WP-1471-2023-Judgment5.The complainant alleged that, the accused No.1 is herdaughter-in-law, accused No.2 is an L.I.C. agent and Accused No.3is a Notary Advocate. Her son and husband of the Accused no. 1namely Dr. Amol Jangam, was a Covid-19 warrior and he died dueto a Covid-19 infection while treating patients in the Hospital. TheState Government declared awarding of monetary relief ofRs.50,00,000/- (Rupees Fifty Lakh) toward compensation due todeath of her son Dr. Amol. However, the accused No.1, herdaughter-in-law, in collusion with accused Nos. 2 and 3fraudulently Notarized the document falsely showing her consentfor withdrawal of compensation amount in favour of accused No.1.The complainant further alleged that, the accused Nos. 1 to 3 havemanufactured false and fabricated documents and got notarisedsaid documents, therefore, the Accused has committed offencesunder Section 467, 468, 420 read with Section 34 of I.P.C. 6.On 30.04.2022, the learned J.M.F.C./ 3rd Joint C.J.J.D.Sangamner, passed an order and issued process under Section 467,468, 420 read with 34 of I.P.C., against accused No.1 daughter-in-law (wife of deceased) and the accused No.3 the Notary but 3 of 14 (( 4 ))929-*Cri-WP-1471-2023-Judgmentdismissed the complaint as against accused No.2, L.I.C. Agent onground that, the accused No.1 in collusion with accused No. 3executed Notary document “Article “F”, which is registered byaccused No.3 though the Petitioner was not present whileexecution of the document Article "F". Since, the accused No.3/Respondent No.2 got registered the said document, hence, hewith common intention committed offences and helped the accusedNo.1 to fraudulently withdraw the compensation.7.Being aggrieved by order of issuance of process dated30.04.2022, the Accused No.3 filed Criminal Revision No.22 of2022 before the Sessions Court. On 12.05.2023, the learnedAdditional Sessions Judge, Sangamner, passed the impugned orderholding that, the Accused no. 3, being a Public Notary under theNotaries Act and notariesed the Affidavit Article-F in violation ofprovisions of Notary Act and Rules with an intention tomisappropriate amount of compensation, which is professionalmisconduct. Therefore, the Respondent no 3 can only beprosecuted by the competent officer authorised by the State orCentral Government as provided under Rule 13 of the Notaries 4 of 14 (( 5 ))929-*Cri-WP-1471-2023-JudgmentRules, 1956. Therefore, the order of issuance of process againstaccused no. 2 was set aside. Being aggrieved by said order, thecomplainant has presented this petition. 8.The learned counsel for the Petitioner canvassed that,the learned Revisional Court failed to consider the material andstatement of the present Petitioner that, Respondent No.2 whiledischarging the duty being a public Notary, in collusion with theoriginal accused No.1, Notarized documents falsely showing that,the complainant/ Petitioner has consented for withdrawal ofcompensation amount in favour of the Accused no. 1 though she(Petitioner) was not present before the Respondent No.2 Notarywhile execution of the Affidavit. So also, the documentaryevidence and police inquiry report reveals that on the day ofexecution of Article "F" Notary Affidavit, the presentPetitioner/complainant was not present before the Accused No. 3.As per the CDR of the petitioner’s mobile show that, she was at adifferent location than where Article "F" Notary Affidavit has beenexecuted. However, the learned revisional Court passed theimpugned order without considering primary evidence available on 5 of 14 (( 6 ))929-*Cri-WP-1471-2023-Judgmentrecord. Therefore, prayed to quash and set aside the impugnedjudgment and order.9.The learned counsel for the Petitioner further canvassedthat, Section 13 of the Notaries Act provides about takingcognizance of offence. Section 8 of the Notaries Act providesfunctions of the Notaries. The protection under the Notaries Act isprovided only in cases of vexatious litigation, however, in case-in-hand, there is prima-facie documentary evidence emerging fromjudicial and police inquiries, indicating involvement of theRespondent No.2/Accused no. 3 while commission of the offenceunder Sections 467, 468, 420 read with 34 of I.P.C. Therefore,Respondent No.2/Accused no. 3 has not made out a prima-faciecase for discharge from the said offences. 10.In support of these submissions, the learned counsel forthe Petitioner placed reliance on the judgment dated 06.06.2023passed by the Coordinate Bench of this Court at Nagpur (Coram:G.A. Sanap, J.) in Criminal Writ Petition No.602 of 2022, Smt.Seema Hitesh Khandelwal Vs. State of Maharashtra and another,wherein it is held that, the accused Notary is not entitled to invoke 6 of 14 (( 7 ))929-*Cri-WP-1471-2023-Judgmentthe protection provided under Section 13 of the Notaries Act, 1952.On face of the record, the accused became part of a conspiracy, asobserved in paragraph 32, thus:-“32.In my view, the facts of the case on hand and the factsof the decisions relied upon by the learned Senior Advocateare clearly distinguishable. The decisions, in my view,therefore, are not applicable to the case of the accused at thisstage. On the basis of the proposition of law laid down inthose decisions the accused No.5 is not entitled to invoke theprotection provided under Section 13 of the Act of 1952. Theprosecution has come before the Court with the case that thewill deed was forged pursuant to the conspiracy hatched bythe accused. The object of the execution of the will deed wasto deprive the informant of her right in the property. Theaccused took the conspiracy to logical end by bringing intoexistence the will deed. The accused No. 5, as can be seenfrom the prima facie material on record, became part of theconspiracy. The act of attestation of will deed by accused No.5, as stated above, would indicate that accused No. 5 sharedthe object of the conspiracy. The notary became the part ofthe conspiracy to provide authenticity to the will deed. Thematerial on record is sufficient to attribute the intention andobject to accused No. 5 in the commission of crime. Thenotary, as can be seen, succumbed to the wishes of theremaining accused and became a part of the conspiracy. It isto be noted that the act of attestation of execution of the willdeed, in the manner stated above, by accused No. 5 was amaster stroke to take the conspiracy to logical conclusion. Inmy view, in the backdrop of the above stated stark facts andevidence, accused No. 5 was not entitled for discharge.Learned CJM has failed to consider the above position.Therefore, the order passed by the learned CJM cannot besustained.” 7 of 14 (( 8 ))929-*Cri-WP-1471-2023-Judgment11.Per contra, the learned counsel appearing forRespondent No.2 canvassed in vehemence that, the RespondentNo.2 being a Notary registered Notary Affidavit Article "F" whiledischarging his statutory duty contemplated under the Notary Act.Therefore, if any act is committed while discharging the statutoryduty, the protection under Section 13 of the Notaries Act, is needsto be extended to Respondent No.2/Accused no. 3. So also, thecomplaint as against the Respondent No.2 is not tenable at thehands of the Petitioner, unless the authorized officer of the CentralGovernment or State Government lodge a written complaint withdue sanction. The Petitioner has not obtained any such priorpermission to prosecute the Respondent no. 2/accused no. 3.Therefore, the complaint itself is not tenable. Therefore, prayed fordismissal of the Petition.12. In support of these submissions, the learned counselfor the Petitioner placed reliance on Ayaz Ahamed Khan Vs. TheState of Maharashtra and another, 2013 ALL MR (Cri.) 522,wherein it is held that, the Petitioner is a Notary AdvocateNotarized the document in respect of the owner of the plot of Smt. 8 of 14 (( 9 ))929-*Cri-WP-1471-2023-JudgmentVinita Deshpande concerning MHADA allotment and subsequentlyit revealed that Smt. Vanita Deshpande was abroad at the materialtime when the document was purportedly notarized andconsequently, the Petitioner as a Notary has been prosecuted.Under these circumstances, the Investigator not prosecuted theadvocate who has identified the person before execution of saiddocument or notarising the same. Therefore, it is held that theNotary is not expected to know the genuineness of party. Hence,there could not be the prosecution of the Petitioner notary for theoffences under Section 420, 465, 467, 468, 471 r/w Section 34 ofI.P.C. 13.It further relied on Devyani d/o Govind Ambilwade Vs.State of Maharashtra and others, 2020 (4) Mh.L.J. (Cri.) 606,wherein it is held that, no Court is allowed to take cognizanceagainst the notary unless a complaint in writing is filed by officerauthorized by the Central Government or the State Government. 14.It further relied on the case of Brahmadev R. Dube Vs.State of Maharashtra and another, 2014(3) Mh.L.J. (Cri.) 234,wherein it is held thus:- 9 of 14 (( 10 ))929-*Cri-WP-1471-2023-Judgment“It is submitted that notary public was under anobligation to take care that the document is signed by aperson who appeared before him and the photograph pastedon her document belonged to the same person. No doubt,the notary public was under an obligation to take care thatthe deponent who signed the document was the same personin whose name the document was signed. At the same time,it cannot be ignored that section 13 not only protects thenotary from the alleged offences committed in exercise of hisfunctions but it also protects the purported exercise of saidfunctions. Had the act of notary/petitioner been is totallyextraneous to his duties, the protection under section 13would not have been available to him.” 15.In case-in-hand, it prima-facie appears that, thePetitioner lodged a Criminal Complaint M.A. No.714 of 2021alleging that, her son Dr. Amol Jangam was a Covid warrior anddied on 05.05.2021 due to infection of Covid while discharging hisduty being a Medical Officer with Primary Health Centre,Sangamner. The present Petitioner is one of the legal heirs alongwith accused No.1 and her grand-children. However, the accusedNo.1 allegedly in connivance with the Respondent no. 2/AccusedNo.3 got registered a document Article "F" Affidavit showing that,the present Petitioner consented for withdrawal of compensation ofRs.50,00,000/- in favour of accused No.1. As per the witnessesstatement recorded by the Investigating Officer and statement ofthe present Petitioner/complainant it shows that, w.e.f. 06.06.2021 10 of 14 (( 11 ))929-*Cri-WP-1471-2023-Judgmenttill 21.06.2021, the Petitioner Smt. Jayshri Kishababu Jangam wasat Pathardi and Baramati with witness Shri Vivek SadashivShelgaonkar. As per tower location of mobile, the Petitioner'smobile was within the tower location of village Pathardi andBaramati on the date of execution of Notary Affidavit Article “F”.On 17.06.2021, the accused No.1 in connivance with presentRespondent No.2 Notary advocate executed/notarized Aritcle "F"alleging that, the present Petitioner consented for withdrawal ofamount of compensation in favour of accused No.1, though shewas not present while registration of Article "F" by the AccusedNo.3.16.In the judgment dated 06.06.2023 passed by thecoordinate Bench of this Court in the case of Smt. Seema HiteshKhandelwal, cited (supra) it is held that, when the Notary becomea part of conspiracy to provide an authenticity to the Will-Deed andthe material on record is sufficient to attribute the intention andobject in commission of crime, the Notary is not entitled fordischarge and he is not entitled for the protection provided underSection 13 of the Notaries Act. 11 of 14 (( 12 ))929-*Cri-WP-1471-2023-Judgment17.Similarly, in case in hand, material placed on record,prima-facie appears that the photographs of the Petitioner and herdaughter-in-law are pasted on document Article-F Notary Affidavit.There is no identification of the Petitioner by any other Advocate.Thereafter the Respondent No.2/Accused no. 3 has affixed NotarySeal on it and got notarised Article- G Affidavit. The contents ofArticle-F Affidavit shows that, the petitioner/complainant hasconsented for withdrawal of compensation amount in favour of herdaughter-in-law Accused no. 1. 18.No doubt the Respondent No.2 is a Notary Advocateand he is governed under the provisions of Notaries Act and Rules.Section 8(1)(e) of Notaries Act provides that, “a notary mayadminister oath to or take affidavit from any person.” Rule 13 ofNotary Rules provides inquiry into the allegations of professional orother misconduct of a notary either suo-motu by the appropriateGovernment or on a complaint received in that regard.19. In case in hand, on perusal of photo copy of thenotarized document Article-F it appears that, the present 12 of 14 (( 13 ))929-*Cri-WP-1471-2023-JudgmentRespondent No.2/Accused no. 3 has registered the affidavitwithout identification of the Petitioner by any other legalpractitioner/Advocate. The deponent Smt. Jayshree Kishabapu @Kishor Jangam specifically stated said fact on on oath. TheRespondent No.2 being a notary put his seal with the endorsementthat this affidavit made before him. The photograph of Petitionerand photograph of her daughter-in-law accused no. 1 pasted on thedocument. Thereafter the Respondent No.2 has put his seal on it.Therefore it prima-facie shows that whatever role played by theRespondent No.2 while execution of Article “F” Notary Affidavit toconduce the Accused no.1 in furtherance of common intention.Admittedly, the document Article-F reflect that, the RespondentNo.2 himself confirmed that the deponent person is present beforehim. Therefore, it is to be considered the professionalmisconduct/negligence. No doubt, Notaries Act differentiate themisconduct and negligence of the Notary while functioning underthe said Act and Rules. However, considering the role played bythe Respondent No.2 it shows he acted to conduce the Accused no.1 and he is become a part of the conspiracy while execution ofdocument Article "F" in absence of the present Petitioner. However, 13 of 14 (( 14 ))929-*Cri-WP-1471-2023-Judgmentthe learned revisional Court without considering scope of Section8(1)(e) of the Notaries Act and Rule 13, quashed and set aside theprocess against Respondent No.2 for the offence punishable underSection 467, 468, 420 read with Section 34 of I.P.C., hence, it isnot sustainable in eyes of law, hence, it is liable to be quashed andset aside.20.In view of above discussions, the impugned order dated12.05.2023 passed by the learned Additional Sessions Judge,Sangamner in Criminal Revision No.22 of 2022 is hereby quashedand set aside. The order below Exh.1 dated 30.04.2022 in Cri.M.A.No.714 of 2021 passed by the learned J.M.F.C. / 3rd Joint C.J.J.D.,Sangamner, is hereby restored.21.Accordingly, the Writ Petition is allowed. Rule is madeabsolute in above terms. [ Y. G. KHOBRAGADE, J. ] SMS 14 of 14