IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5213 OF 2016 BETWEEN:
SRI. A.P. MAROO S/O LATE PRABHASHANKAR MAROO AGED 54 YEARS, ADVOCATE AND NOTARY, R/O SAI ENTERPRISES OPP: BANDRA COURT A.K.MARG, BANDRA EAST, MUMBAI-400051. ... PETITIONER (BY SRI: PRAMOD R, ADVOCATE) AND 1. SMT. PAVITHRA W/O DR.SUBHASH.N R/O “PAVITHRA” GANESHA GARDEN, NEAR JAINAGAR KADRI MANGALORE-575003 2. THE STATE REPRESENTED BY MANGALORE SOUTH POLICE STATION, MANGALORE-575003 ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R2; SRI: ARUNA SHYAM.M., ADVOCATE FOR R1) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS ON THE FILE OF II CJM, MANGALORE IN C.C.NO.410/2014 FOR AN OFFENCE PUNISHABLE UNDER SECTIONS 419, 420, 463, 464, 465, 467, 468, 471 R/W 120B OF IPC.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for petitioner, learned counsel for respondent No.1 and learned Addl.SPP for respondent No.2. Perused the records.
Petitioner is an Advocate and Notary Public. During the course of his avocation, he notarized a Power-of-Attorney said to have been executed by one Smt.Malathi. However, it turned out that said Smt.Malathi had died much before the date of execution of the Power-of-Attorney. Alleging that the deceased Malathi was impersonated and a fake document was created styled as General Power-of-Attorney and the petitioner herein notarized the same in furtherance of conspiracy and connivance with accused Nos.2 and 3, first respondent filed a private complaint seeking action against accused Nos.1 to 5.
2. Learned Magistrate referred the complaint under section 156(3) of Cr.P.C. for investigation. After investigation, the jurisdictional police submitted a ‘B’ summary report. Learned Magistrate, on considering the protest petition and the sworn statement of the complainant and her witnesses, by order dated 21.10.2014, took cognizance of the above offences and issued summons to all the accused including petitioner herein.
3. Learned counsel for petitioner submits that the allegations made in the private complaint and the sworn statement of the complainant indicate that the petitioner has merely discharged his duty as a Notary Public. There are no allegations whatsoever attracting the ingredients of offences under the provisions of Notaries Act. The act performed by the petitioner is protected under section 13 of the Notaries Act. In support of his submission, learned counsel has placed reliance on the decision of this Court in Criminal Petition No.6768/2015 dated 22.03.2016.
4. Refuting the above submissions, learned counsel for respondent No.1, by placing reliance on the decision of this court in Criminal Petition No.7448/2014 dated 18.01.2019, would submit that there are specific allegations that petitioner herein was a party to the conspiracy and connivance in bringing about a fake General Power-of-Attorney. Hence, the petitioner is not entitled to the protection under Section 13 of the Notaries Act. Thus he prayed for dismissal of the petition.
5. Considered the submissions.
6. Even though in the private complaint, general and omnibus allegations are made to the effect that the petitioner herein, in collusion with other accused persons, created and fabricated the aforesaid General Power-of-Attorney, yet during the course of investigation, no material has been collected by the Investigating Agency in proof of the fact that petitioner herein was also a party to the alleged conspiracy and that he had any role to play in the alleged forgery of the document. Learned Magistrate has not considered material collected by the Investigating Agency, instead has issued summons to all the accused including petitioner herein, solely based on the sworn statement of complainant and her witnesses.
7. I have gone through the sworn statement of complainant and her witnesses. Except repeating the assertions made in the private complaint, neither the complainant nor her witnesses have spoken about the specific overt acts committed by petitioner herein, either in the act of impersonation or in the alleged conspiracy to bring about the alleged document. Prosecution has failed to produce any material showing the complicity of petitioner in the commission of above offence. The material on record indicate that, except notarizing the document which was presented for notarization, petitioner has not committed any acts warranting his prosecution for the above offence. In that view of the matter, summons issued by learned Magistrate being contrary to the material on record and the complainant having failed to make out any prima facie case for prosecution of petitioner, the impugned order and consequent proceedings initiated against petitioner are liable to be quashed.
Accordingly, petition is allowed. Summons issued by learned Magistrate dated 21.10.2014 in P.C.No.64/2012 and further proceedings arising therefrom in C.C.No.410/2014 on the file of II Addl. Chief Judicial Magistrate, Mangaluru are quashed only insofar as petitioner/accused No.2 Sri.A.P.Maroo is concerned.
Sd/- JUDGE Bss