IMPORTANT POINT
The case was not instituted on a complaint in writing made by an officer authorised by the Central government or the State Government and the condition stipulated in Section 13 of the Notaries Act, 1952 for prosecuting a notary public for his acts done in exercise of or purported exercise of his functions under the Act has not been complied with, was held to be a ground to discharge the petitioner

ORDER :

1. Petitioner is a lady Advocate practising in various civil and criminal courts in Kannur and Thalassery and also a Notary Public, approaches this Court to quash the Final Report in C.C. No. 851/2014 on the files of the Judicial First Class Magistrate Court-I, Kannur.

2. Annexure AI - private complaint preferred by the defacto complainant/additional second respondent herein was forwarded by the Magistrate for investigation under Sections 156(3) Cr.P.C. Prosecution case is that the property described in the complaint was sold by the first accused in favour of the third accused by forging a power of attorney alleged to have been executed by the defacto complainant in the name of her husband/first accused. The defacto complainant has got half right over the property. It is alleged in the complaint that there is some family irking in their marital life. Thereafter, without her knowledge the power of attorney was got executed whereby the power was granted to the first accused to transfer her rights in the property.

3. The petitioner herein has been arrayed as the second accused. Annexure-A3, FIR was registered against the three accused persons. On completion of the investigation, Annexure-A6 Final Report was filed. It is alleged in the charge that on 27.07.2011 in Room No. 53 of Kannur Stadium Complex in the office of the petitioner/second accused, first accused created a power of attorney authorising the sale of a flat owned by the first accused and the defacto complainant in Thane, Mumbai, without the knowledge of the defacto complainant with the aid of the second accused and using the forged power of attorney as original, the first accused sold the flat in Mumbai and thereby cheated the defacto complainant. Hence, accused persons committed offences punishable under Sections 463, 464, 465, 467, 468, 471, 472 and 474 r/w. 34 IPC.

4. According to the learned counsel for the petitioner/second accused (hereinafter called as the petitioner) she started practice on 23.12.1974 and for the last 15 years she had been acting as a Notary Public. In the year 1999, she has been appointed as a Notary Public by the State Government. There had been no complaint against her either in the profession as an advocate or while in exercising the functions as Notary Public. So according to the learned counsel, this complaint has been falsely foisted in collusion of first accused and defacto complainant after selling the property to a third party, when they found that the value of the property has been subsequently shoot up.

5. The learned Senior Counsel Sri. Ramesh Chander appearing for the petitioner would contend that the crime and final report filed against the petitioner is not sustainable either in law or on facts for reasons more than one:

(1) Registration of the crime and taking cognisance by the Judicial First Class Magistrate Court-I, Kannur against the petitioner is hit by Section 13 of the Notaries Act, 1952.

(2) There are no prima-facie material collected by the investigating agency to sustain the charge against the petitioner. So according to him, the continuance of the proceedings in C.C. No. 851/2014 against the petitioner will be an abuse of process of law.

6. The learned counsel for the additional second respondent/defacto complainant would contend that the complaint filed against the petitioner and the final report filed against her are based upon valid materials. He would also contend that since the allegation against the petitioner is totally alien to the discharge of her official duties as a notary, the question of sanction under Section 13 of the Notaries Act, 1952 will not have any application. He would contend that the criminal offence of forging a document and aiding the first accused in forging the document will not be an official act.

7. To substantiate the contention of the petitioner that the defacto complainant/additional second respondent executed the power of attorney at her office, she produced Annexure A2 extract of the