IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.7718 /2017 BETWEEN:
1. Mrs Shailaja R Hegde Aged about 64 years, W/o.Rathnakara Hegde, R/at Sharada Nagar, Shringeri Town, Shringeri Taluk-577 139, Chikkamagalur District.
2. Mr M R Rushyashringa Hegde S/o Late M.G.Rathnakar Hegde, Aged about 38 years, R/at Sharada Nagar, Shringeri Town, Shringeri Taluk-577 139, Chikkamagalur District.
3. Mr T N Rathnaraj Aged About 32 Years, S/o.Late Namirajaiah, Tyagaraj Road, Koppa-577 105 Chikkamagalur District. ... Petitioners (By Sri : Chandranath Ariga K, Adv.) AND:
1. State of Karnataka By Sringeri Police Station, Chikkamagaluru, Rept. By State Public Prosecutor, High Court, Bangalore-560001.
2. Sri A.G. Gireesha S/o A.P. Gundappa Gowda Godavari Estate Post: Avathi-577 140 Chikkamagaluru Taluk ... Respondents (By Sri.S.Rachaiah, HCGP for R1) (By Sri. K Prasad Hegde, Advocate for R.2(absent)) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C WITH A PRAYER TO QUASH THE PROCEEDINGS AND THE C.C.NO.113/2017 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., SHRINGERI IN SO FAR AS IT RELATES TO THE PETITIONERS THAT IS ACCUSED 2, 3 AND 6.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for orders, by consent of learned counsel appearing for petitioners and learned HCGP appearing for respondent No.1 , it is taken up for final disposal.
2. A complaint came to be lodged on 25.8.2015 by respondent No.2 alleging that first accused along with petitioners 1 and 2 (Accused Nos. 2 and 3) had filed an affidavit with forged signatures of Sri. M.V. Puttappa Hegde, M.V. Ramappa Hegde and M.V. Kalasappa Hedge, which was attested by third petitioner(accused No.6) in discharge of his duty as a Notary and consequently, accused Nos.1,2 and 3 have received compensation amount from the Forest Department which was paid in respect of property bearing sy.No. 9/1 measuring 6 acres 38 guntas situated at Muduba village, Kigga hobli, Sringeri Taluk, having been taken over by the State Government on account of same having been declared as Kudremukh Wild Life Reserve. Hence, he sought for suitable action be taken against the accused persons.
3. Said complaint came to be registered against the accused persons in Cr.No.76/2015 by Sringeri P.S. and after investigation chargesheet has been filed in C.C.No.113/2017 for the offence punishable under Sections 465, 467, 468, 471, 474, 117, 197, 198, 199, 200, 120 (B) (2), and 420 r/w Section 34 IPC pending on the file of Civil Judge & JMFC., Sringeri.
4. I have heard argument of Sri K Chandranath Ariga, learned counsel appearing for petitioners and Sri Rachaiah, learned HCGP appearing for respondent No.1. Though, respondent No.2 represented by learned counsel Sri. K Prasad Hegde, he has remained absent.
5. Learned counsel for petitioners has filed a memo on 01.02.2019 seeking leave of this Court to withdraw the petition insofar as it relates to petitioners No.1 and 2. Liberty is also sought for to file a fresh petition.
6. Having heard Shri Chandranath Ariga, learned counsel appearing for petitioners, and learned HCGP appearing for the State, this Court is of the considered view that petitioners No.1 and 2 may be permitted to withdraw the petition. However, no liberty is granted to file fresh petition.
7. Sri Chandranath Ariga, learned counsel appearing for petitioners would contend that initiation of prosecution against third petitioner is hit by Section 13 of the Notaries Act, 1952, namely trial court could not have taken cognizance of offence alleged to have been committed by third petitioner in the capacity of a Notary or in exercise of his function as a Notary under the Act, except upon a complaint made in writing by an Officer authorized by the Central or State Government by general or special order in that behalf. Hence, contending that in the instant case, on the basis of a police report, cognizance has been taken by the learned trial judge and as such, learned Counsel prays for quashing of the proceedings insofar as petitioner No.3 is concerned.
8. Learned HCGP, appearing for respondent No.1, would contend that allegations made in the complaint would indicate probable offence committed by petitioner No.3 and as such, proceedings required to be continued.
9. This Court is not inclined to accept said submission for the simple reason that Section 13 of the Notary Act, as rightly contended by learned counsel Sri Chandranath Ariga, is a bar for the trial Court to take cognizance of the offence, when accused being a Notary and in exercise or purported exercise of his function as a Notary discharges his duty. The only recourse which can be taken to implicate said Notary as accused would be on the basis of a complaint to be filed/lodged or made by an Officer authorized by the Central or State Government.
Section 13 of the Notary 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.”
10. A plain reading of the above provision, makes it abundantly clear that cognizance of an offence by a Notary in exercise or purported exercise of his function as a Notary can be taken only upon a complaint made in writing made by an Officer authorized by the Central or State Government. However, in the instant case, cognizance has been taken on the basis of complaint lodged by respondent No.2 culminating in a report being filed by the jurisdictional police under Section 173 of Cr.P.C., which formed the basis for cognizance being taken and this procedure would find foul of Section 13 of the Notaries Act. As such, proceedings pending against third petitioner, if continued, would be an abuse of process of law and even if, prosecution is allowed to continue the proceedings against petitioner No.3, it would not end in conviction in the light of bar found under Section 13 of the Notaries Act 1952 for being cognizance and it would result in acquittal and thereby resulting in waste of precious judicial time.
Hence, the following:
ORDER (i) Criminal petition filed by petitioners 1 and 2 is dismissed as withdrawn.
(ii) Petition filed by third petitioner (Accused No.6) is allowed. Proceedings initiated against third petitioner, (A-6), pending on the file of Civil Judge & JMFC., Sringeri, in C.C.No.113/2017 (arising out of Cr.No.76/15) registered by Sringeri Police Station for the offence punishable under Sections 465, 467, 468, 471, 474, 177, 197, 198, 199, 200, 120(B)(2), 420 r/w Section 34 of IPC is hereby quashed and third petitioner (A-6) is acquitted of the said offence.
(iii) However, liberty if reserved to the authorities prescribed under Section 13 of the Notaries Act, 1952 to file complaint by an authorized officer.
Sd/- JUDGE psg*