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Bombay High Court
Chandmal Motilal Bora, Advocate and Notary
vs
The State of Maharashtra
Appellants : Chandmal Motilal Bora, Advocate and Notary Respondents: The State of Maharashtra Judgment Date: 08, August, 2003 Citations: 2004-MhLJ-2-41 Judges:J.G. Chitre, J.
Notaries Act, 1952 - Section 8 - Complainant - Alleging enforced execution of powers of attorney - Notary charged with criminal conspiracy - Defence version that noting powers of attorney was an official act. - Held, where a person who does official act happens to be charged for participating in a criminal conspiracy there prosecution is obliged to indicate by some reasonable material that he deviated from his official duty and that deviation was having a nexus with the criminal conspiracy in question. There has to be a strong intention behind that act and there has to be desire for participating in such criminal conspiracy. Complaint, FIR, investigation should show that. In present case only allegation is that notarial register was brought to the place where complainant was made to sign documents under threat. Prosecution against notary quashed.
Notaries Act, 1952 - Section 8 - Prosecution of notary or lawyer - Cognizance of complainant or prosecution by the Magistrate - Relevant considerations. - Held, notary or a lawyer by his professions as such is likely to be in closeness of a probable accused. In performance of his duty as such he is likely to do some act as requested by such person. At that stage he may not be knowing the results of the document which he has prepared or notarised. A Criminal Court has to consider such special feature if they are indicated by the prosecution by the complaint of which Criminal Court is requested to take cognizance. If such protection is not granted to such person it would be very difficult for them perform the acts contemplated by the profession of a lawyer or function contemplated to be done by the notary. 1988 (2) Bom CR SC 232 - Relied on.
Notaries Act, 1952 - Sections 8 and 13 - Criminal conspiracy - Accused/petitioner against notary allegedly obtained powers under threat by co-accused involved in offences relating to kidnapping, extortion, property, etc. - Allegations against notary/accused that some pages in register were formed used blank register was brought to place where documents were forcibly executed - Defence that allegation only pertains to misconduct of notary thus Section 13 of Notaries Act would come into play. - Held, if allegation against notary touches official act as notary, Criminal Court is forbidden from taking cognizance unless complaint in writing is made by officer authorised by Government in this behalf.
Notaries Act, 1952 - Sections 8 and 13 - Against criminal conspiracy as charge - Defence that he was performing official act hence Section 13 of Act comes into play - Prayer for exoneration rejected. - Held, where an application is made to Criminal Court for exoneration of an accused, who is a professional performing an official duty. He is protected by legislation, the Criminal Court should not be shy in entertaining such an application, and allow it, if it deserves to be so allowed. 1988 (2) Bom CR 232 (SC) - Relied on.
Notaries Act, 1952 - Section 13 - Notary performing official act - Alleged - Protection against criminal prosecution without sanction from officer authorised by Government. - Held, notary not supposed to know each and every person before him for purpose of notifying a document in his notarial register. He is not supposed to know the truth behind documents brought before him for entries. Some documents that could be used for cheating, blackmailing or offence of commercial transaction. Hence, if protection is not granted to notary he would be involved in offences concerned with disposing, transfer, sale or exchange of property and it would be very difficult for him to work as notary.
[Indian] Penal Code, 1860 - Sections 120-B - Offences relating to extortion, kidnapping, dacoity, property - Alleged forcible execution of powers of attorney - Notary charged with criminal conspiracy - Defence that noting powers of attorney was an official act. - Held, where a person who does official act happens to be charged for participating in a criminal conspiracy prosecution is obliged to indicate by some reasonable material collected during investigation that he deviated from his official duty and that deviation was having a nexus with the criminal conspiracy in question. There has to be an intention behind that act and there has to be desire for participating in such criminal conspiracy. Complaint, FIR, investigation must indicate that. In present case only allegation is that notarial register was brought to the place where complainant was made to sign documents under threat. Prosecution against notary quashed.
1. 1. The petitioner, who happens to be a practicing advocate and Notary, is hereby praying for discharging him from criminal prosecution bearing Criminal Case No. 212/1995, which is revolving around number of offences like 395, 344, 347, 365, 387, 324, 506 r/w Section 120B of Indian Penal Code.
.2. It is the allegation of the prosecution that other accused kidnapped the complainant Rajendra Samarth from his house by calling him to the house of a person of his acquaintance by giving him threats. The complainant as indicated by the prosecution case, left his house and walked along with some of the accused to the house of his acquaintance. It is alleged that in the said house other accused besides the present petitioner, assaulted him, threatened him and detained him. Thereafter from that house he was taken to Akola, from Akola he was taken to Nagpur, from Nagpur taken to Chandrapur, from Chandrapur via Nasik he was taken to Raigad, from Raigad he was taken through Pune to Nasik. At Nasik, it is alleged by the prosecution, that he executed some documents
.purporting to be Powers of Attorney granted in favour of some of the accused. Present applicant, accused has been roped in the prosecution by utilising provisions of Section 120B of Indian Penal Code, because the said powers of attorney have been registered in his Notarial register in presence of some witnesses. It is the prosecution case, as indicated by the F.I.R., that other co-accused had brought the notarial register to the house of some of the co-accused and in the said house the signature of complainant Rajendra Samarth was taken by utilising force on him.
2. 3. Shri Mishra submitted that the F.I.R. does not show any allegations against the present petitioner. The Investigation papers also do not show his involvement as such in any of the acts alleged to have been committed by other co-accused pertaining to other main offences. He submitted that the only part which has been attributed to him is that in his notarial register six powers of attorney have been mentioned to have been noted.
.4. Mr. Mishra submitted that the allegations which are made against the present petitioner, who happens to be a practicing lawyer and notary, are pertaining to his work as notary. The allegations may be in respect of his misconduct and therefore, in view of provisions of Section 13 of the Notary Act, 1952 (hereinafter referred to as Act for convenience), the learned Magistrate should not have taken cognizance without a sanction from the Central Government or State Government as the case may be. He submitted that the learned trial Court should have considered this important aspect of the matter and should have discharged the present petitioner, when by an application a prayer to that effect was made to him. The learned trial Judge has misconstrued the provisions of law and rejected the application of the present petitioner for exonerating him from the said prosecution. Be that as it may,
.now the present petitioner is making a prayer to this Court to quash the said prosecution, as far as present petitioner is concerned.
3. 5. Shri Shringarpure, A.P.P. appearing for State of Maharashtra, submitted that the said register was showing that some pages were left blank and therefore, the present petitioner needs to be prosecuted in the said criminal prosecution. He submitted that the present petitioner happens to be co-accused in view of provisions of Section 120B of I.P.C. He justifies the order passed by the learned trial Judge, who rejected the prayer of the present petitioner for exonerating him from the said prosecution. Section 120B of I.P.C. provides:
"Sub-section (1) whoever is a party to a criminal
conspiracy to commit an offence punishable with
death (imprisonment for life) or rigorous
imprisonment for a term of two years or upwards,
shall where no express provision is made in this Code
for the punishment of such a conspiracy, be punished
in the same manner as if he had abetted
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