Justice A. Badharudeen held that the afore protection provided under Section 13(1) of the Notaries Act would be applicable only when the notary is performing the duties under the statute.

“The Protection contemplated under Section 13 of the Notaries Act is available only in respect of acts performed by a Notary in the lawful discharge or purported discharge of his statutory functions. It does not extend to offences committed with criminal intent or acts which are wholly outside the scope of the statutory duties of the Notary. The preparation or participation in the preparation of a forged document in the year 2011, by falsely certifying that it had been executed in the year 2009 could not, by any stretch of imagination, be regarded as an act done in the discharge or purported discharge of the petitioner's functions as a Notary,” the Court added.

The Court was considering a plea preferred by a Notary Public seeking to quash the criminal case in which he is arrayed as the 8^th accused. It was contended that the requirement under Section 13(1) was not complied with since no complaint was made in writing by the Law Department Secretary. Reliance was placed on V.P.Jyolsna v. State of Kerala as well as Malu K. v. State of Kerala and Ors.

While dismissing the plea, it was observed that if the notary acts in contravention of the provisions of the act to commit an offence in his personal capacity, the legislative intent is not to grant him protection.

The Court further added that no 'straight-jacket formula' is applicable to say that all offences committed by notaries, which has a connection with functions as notary, would be protected:

“the intention behind Section 13 of the Notaries Act is to give protection to a Notary for the official acts done by him and from false prosecution based on such acts, to ensure that a Notary should not be subjected to the trauma of criminal prosecution for the official acts he has done…a straight-jacket formula could not be laid down to hold that each and every offence committed by a Notary, which has a connection with his functions as a Notary, would get protection under Section 13 of the Notaries Act, even though he would get protection under Section 13 only for an act done while exercising or purportedly exercising the functions of a Notary, and not beyond the same.”

The prosecution allegation was that accused 1 to 9 committed offences under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, and those under Sections 466, 468, 471, 477A and 120(b) of Indian Penal Code.

It is alleged that the petitioner attested a consent letter without the consent of the alleged executant of the document. It is further alleged that he suppressed the issuance of the forged letter, he willfully did not enter the execution in the Notarial Register.

Considering the same, the Court was of the view that prima facie, it appeared that the petitioner had mens rea to commit the offences and he did not take the necessary precautions required under the Act. Thus, it refused to quash the proceedings on the ground of non-compliance with Section 13(1) of the Act and dismissed the plea.

Counsel for the petitioner: S. Radhakrishnan, S. Rajmohan, Aditya Thejus Krishnan, Aswathy P.V.

Counsel for the respondents: K. Biju - Senior public prosecutor