Prosecution of a Notary Public requires a complaint from the Central/State Government under the Notaries Act.

ORDER

The petitioner is the 4^th accused in C.C.No.113/2023 on the file of the Court of the Judicial First Class Magistrate-I, Alappuzha, (Trial Court) which has originated from Crime No.382/2013, registered by the Alappuzha South Police Station, alleging that the accused persons have committed the offences punishable under Sections 468, 471 and 417 r/w Section 34 of the Indian Penal Code.

2. The concise case of the prosecution is that, the accused 1 to 5 had forged a consent letter (Annexure A2) of the 2^nd respondent and produced the same before the Alappuzha Municipality for getting building permit to construct a shed in the property of the accused 1 to 3. The specific allegations against the petitioner (4th accused) is that, he as a Notary Public had attested the consent letter affirming the signature of the 2nd respondent. Thus, the accused persons have committed the above offences.

3. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. Although, service of notice is completed on the 2^nd respondent, there is no appearance for him.

4. The learned counsel for the petitioner submits that, in view of Section 13 of the Notaries Act, 1952 , (in short, ‘the Act’), it is sine qua non that a complaint is to be filed by the competent authority of a Central Government/State Government for taking cognizance of the offence as against a Notary Public. He relies on the decisions of this Court in Jyolsna V.P. v. State of Kerala and another [ 2020 (6) KHC 334 ] and Malu K. v. State of Kerala [ 2026 KHC OnLine 29 ], to buttress his contention that, a prosecution against the Notary Public can only be launched on a complaint filed by the Central/State Government. Therefore, he prays that, the entire proceedings as against the petitioner may be quashed.

5. The learned Public Prosecutor opposes the Crl.M.C. She submits that, if the allegations in Annexure A1 final report are taken on their face value, the same would constitute the offences alleged against the petitioner. The question whether Annexure A2 consent letter was fabricated or not is a matter of trial.

6. The crime has been registered against the petitioner on the allegation that he had attested Annexure A2 consent letter, which was purportedly not executed by the 2^nd respondent. Thus, in essence, the petitioner has done a false notarial act by certifying that the 2^nd respondent executed the consent letter in his presence, which the 2^nd respondent has not done.

7. In the above context, it is apposite to refer to Section 13 of the Act, which reads as follows :-

“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 authorised by the Central Government or a State Government by general or special order in this behalf.

(2) No magistrate other than a presidency magistrate or a magistrate of the first class shall try an offence punishable under this Act.”

8. While interpreting the above provision, this Court in Jyolsna V.P’s case (supra) has succinctly held that Section 13 of the Act was incorporated to give protection to the Notary Public, who is not supposed to know each and every person who appear before him for the purpose of notifying a document in his notarial register. In view of Section 13 of the Act, no Court shall take cognizance of the offence committed by a Notary in exercise or purportedly exercising his powers under Act, expect on a complaint in writing made by an authorised officer of the Central/State Government. The above view has been reiterated by this Court in Malu K’s case (supra).

9. It is undisputed fact that Annexure A4 FI