IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.03.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.25534 of 2007 and M.P.No.1 of 2007 K.Ramakrishnan ...Petitioner/Accused-2 -Vs- Rajesh Kataria ...Respondent/Complainant Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records in C.C.No.10106 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai and quash the same in so far as the petitioner is concerned. For Petitioner : Mr.P.Murugan Senior counsel for M/s.K.Raja Shrinivas For Respondent : Mr.Manoj Sreevatsan O R D E R The petitioner who is the 2nd accused in case pending in C.C.No.10106 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai seeks to quash proceedings as against him. 2.C.C.No.10106 of 2007 is a complaint case wherein the respondent/complainant informs that on certain misrepresentations made to him, he entered into a Memorandum of Understanding with the 1st accused and the other directors of a company by name M/s.Excel Logistics (P) Ltd. on 29.09.2000. As per the Memorandum of Understanding, the respondent/ complainant and his associates were to bring an amount equal to the projected net worth of the company i.e., Rs.2.5 Crores. Pursuant thereto, the respondent/complainant had paid a sum of Rs.20.68 lakhs into the company on such date and the balance would be paid after he was allowed by the 1st accused and his associates to apply for due diligence over the accounts and other assets of the company to ascertain the veracity of the projected net https://hcservices.ecourts.gov.in/hcservices/ worth of Rs.2.5 Crores. The 1st accused and associates delayed the production of accounts and details of assets and simultaneously put pressure on the complainant to part with moneys at regular intervals citing administrative and business exigencies. A sum of Rs.1.12 Crores was paid by the respondent/ complainant and on being questioned, the 1st accused and 3rd accused pacified the respondent/complainant and informed that the same could be treated as a loan on mortgage and mortgaged property of the 1st accused viz., an estate at Wyanad, Kerala by deposit of title deeds on 27.01.2001 through his power of attorney viz., the 3rd accused. The accused 1 and 3 made a representation to the respondent/complainant that the estate was worth Rs.3 crores. When the amounts due to the respondent/complainant became Rs.1.47 Crores on further advances made by him, another letter of deposit of title deeds was caused to be executed by the 1st accused on 27.02.2001. As the moneys were not forthcoming from the 1st accused, the respondent/complainant towards going about the legal process, ascertained and found that as against the representation of the mortgaged property being worth Rs.3 Crores, the same was worth only Rs.70 lakhs. Hence, he preferred a complaint before the Central Crime Branch, Chennai registered as Crime No.630/2001. 3.The 1st accused on his part filed a suit in C.S.No.635 of 2002 before this Court for a declaration that the mortgage letters dated 27.01.2001 and 27.02.2002 were null and void. In an affidavit filed in support of an interim application in such suit, the 1st accused averred that he had come to India on 28.09.2000 and executed a deed of revocation of Power of Attorney on the same day before the 2nd accused, an advocate and notary public at Tellicherry, Kannur District, Kerala, who is the petitioner herein. On the strength of such Power of Attorney, the 1st accused obtained an exparte ad-interim injunction order from this Court on 17.09.2002. Alleging that the deed of revocation of Power of Attorney dated 28.09.2000 was forged and it is apparent on the face of records filed in the suit and other materials since though such document is said to have been executed on 28.09.2000 at Tellicherry, Kannur District, Kerala, the 1st accused arrived from U.A.E. only on that day and was present through out such day at Chennai, having several discussions with the respondent/ complainant in the presence of the 3rd accused as also on the next day viz., 29.09.2000 on which date, the Memorandum of Understanding was entered into. Alleging that Tellicherry, Kannur District, Kerala is more than 750 Kms. from Chennai and that the revocation of Power of Attorney dated 28.09.2000 could not have been executed before the 2nd accused and witnessed by the 4th and 5th accused on 28.09.2000, the respondent/complainant informs that the 1st accused in conspiracy with the accused 2 to 5 had forged and fabricated the deed of revocation of Power of Attorney. Thus, the entire reading of the complaint shows that the only wrong alleged against the petitioner/2nd accused is that he had been party to the fabrication and forgery of the deed of revocation of Power of Attorney dated 28.09.2000. https://hcservices.ecourts.gov.in/hcservices/ 4.The learned counsel for the respondent fairly concedes that though there is reference to the 2nd accused at Paragraph 19 of the complaint, the same is erroneous and that the same should be read as referring to the 3rd accused. 5.The learned counsel for the petitioner besides canvassing the fact that the petitioner has attested the deed of revocation of Power of Attorney dated 28.09.2000 in his professional capacity, submitted that he had done so since the person who executed the document before him had been duly identified by two witnesses and in such circumstance, no wrong doing could be attributed to him. It might well be a case where on impersonation he had led to believe that the person who executed the document in his presence was the 1st accused. The learned counsel places reliance on Section 13 of the Notaries Act, 1952 to submit that the act complained of against the petitioner necessarily was one which was in the exercise or purported exercise of his functions as notary and as such the complaint could be filed in respect of such action only in writing made by a officer authorised by a Central Government or State Government by general or specific order in such behalf. Section 13 of the Notaries Act 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." 6.The learned counsel for the petitioners places reliance on the decision Chandmal Motilal Bora v. State of Maharashtra CDJ 2003 BHC 214, wherein it has been observed as follows: "10.Therefore, if any allegation is made against a Notary which touches the official performance as a notary, the Criminal Court is forbidden from taking cognizance unless the complaint in writing is made by an officer authorised by the Central Government or State Government by general or special order in this behalf. Therefore, whenever an official act of Notary comes in picture, it becomes the duty of the criminal Court to see, whether, the allegation is directly concerned with his official duty or the performance which he has to do as indicated in Section 8 of NOTARIES ACT. The Court which has been requested to take cognizance of the complaint has to apply its judicial mind and to see whether the act which is the subject-matter of the complaint is the official act of a Notary or it is an act which is beyond his official performance. Suppose if the notary is alleged to have https://hcservices.ecourts.gov.in/hcservices/ committed an offence by his act directly in his personal capacity, then there is no need of sanction, because, the said act is not connected with his official performance, like an allegation showing that notary committed the murder or Notary assaulted a person for the purposes of causing simple hurt, grievous hurt etc. If the allegations show that by an act which is not in accordance with the provisions of NOTARIES ACT, the notary has been alleged to have committed an offence, there is no need of having a sanction to the complaint in writing of an officer as contemplated by provisions of Section 13 of NOTARIES ACT. But if act alleged is touching his official performance, the Court has to be on guard when it has been requested to take cognizance of the allegations against the Notary. 11.If such protection is not granted to the Notary, he would be involved, implicated and roped in, in number of offences, because number of documents are being notarised before him in his notarial reigster. Some documents may be purporting to be for the offence of cheating, blackmailing or offence of commercial transactions. He would be involved in number of offences concerned with the disposing of property, transfer of the property, sale of the property, exchange of property. He would be also coming in picture as an accused in number of offences connected with number of commercial crimes. A Notary is not supposed to know each and every person before him for the purpose of notifying a document in his notarial register. He is not supposed to know the truth behind the documents brought before him for entries. He is generally introduced to parties by persons who happen to be persons of his acquaintance. Such person may be advocates, clerks of the advocates, or some persons who are connected with him by his profession as Notary or by his profession generally as a lawyer. If such protection is not granted to a notary, it would be very difficult for him to work as a notary and members of public at large would be facing number of difficulties at every step and with this object Section 13 has been enacted by the Legislature with a foresight." 7.The learned counsel for the respondent submitted that the respondent/complainant had come forward with a specific case of forgery and fabrication of a document, in which act, the petitioner herein had conspired with the other accused. The same could be rebutted only through evidence. Whether the act of the petitioner was one in the purported exercise of his duty involved an element of intent which the very document dated 28.09.2000 disclosed. From the document, it was apparent that it was meant to benefit some persons. It would be not be possible to mention who was benefitted and what was the nature of benefit. But the averments in the complaint made out sufficient cause for further proceedings. This Court would not, in circumstances where the lower Court thought it fit to take https://hcservices.ecourts.gov.in/hcservices/ cognizance and issue summons to the accused, at the threshold stop proceedings against the petitioner. 8.The learned counsel relied on the decision Gian Singh v.State and another CDJ 2009 DHC 870 to submit that the decision relied upon by the petitioner had been considered therein and observed that the decision in Chandmal Motilal Bora v. State of Maharashtra CDJ 2003 BHC 214 gave a protective cover to such notaries who had performed their functions in such official capacity and not to acts which fall outside the purview of the duty of such a functionary. 9.The learned counsel for the respondent also placed reliance on the decision of the Honourable Apex Court in Iqbal Singh Marwah and another v. Meenakshi Marwah and another AIR 2005 Supreme Court 2119 to submit that any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded. It further was contended that the absence of due entries in the notarial register of the petitioner, rendered his conduct suspect. 10.I have considered the rival submissions. 11.I find myself in total agreement with the observations contained in decision Chandmal Motilal Bora v. State of Maharashtra CDJ 2003 BHC 214 which had been extracted herein above. The case relied upon by the learned counsel for the respondent was one wherein a notary had taken shifting stands and given different statements in writing as to whether he had or had not endorsed the disputed will under challenge therein. It was in such circumstances that the Court had found that protection under Section 13 of the Notaries Act,1952 would not be available to acts which fall outside the purview of the duty of such a functionary. Such decision does not have any relevance in the facts and circumstances of this case. The typed set of papers contain both the allegedly fabricated document dated 28.09.2000 and the Memorandum of Understanding between the respondent/complainant and the 1st accused and his company dated 29.09.2000. This Court is constrained to observe that even to the naked eye, the difference in the signature of the respondent/complainant in both documents is readily discernible. 13.This Court would endorse and follow the decision referred to and relied upon by the Honourable Bombay High Court in Chandmal Motilal Bora v. State of Maharashtra CDJ 2003 BHC 214. "13.In the matter of Madhavrao Jiwaji Rao Scindia and another vs. Sambhajirao Chandrojirao Angre and others, reported in A.I.R. 1988 S.C. 709, Supreme Court has held that: "The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie established the offence. It is also for the Court to take into consideration any special https://hcservices.ecourts.gov.in/hcservices/ features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purposes is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration, the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 14.For the above reasons, the Criminal Original Petition shall stand allowed. The proceedings in C.C.No.10106 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai shall stand quashed in so far as this petitioner is concerned. Consequently, the connected miscellaneous petition is closed. 15.Leave to appeal to the Honourable Supreme Court is sought by way of mention by the learned counsel for the respondent. On consideration of both the law and facts pertaining to the case, this Court is of the view that the same is not a one where this Court would grant leave to appeal to the Honourable Supreme Court. Prayer for leave is rejected. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gm To 1. The VII Metropolitan Magistrate, George Town, Chennai 2. -do- Through The Chief Metropolitan Magistrate, Egmore, Chennai-8. + 1 cc to M/S.Manoj Sreevalsan, Advocate Sr 14936 + 1 cc to M/S.K.Raja Shrinivas, Advocate, SR 14936 Crl.O.P.No.25534 of 2007 and M.P.No.1 of 2007 AKR (CO) RH (12.3.10) https://hcservices.ecourts.gov.in/hcservices/