The Madras High Court has recently held that protection from prosecution under Section 13 of the Notaries Act, 1952 shall not be available to a notary that does not comply with the statutory procedure laid down under the Act.
Section 13 of the Act stipulates that "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 authorized by the Central Government or a State Government by general or special order in this behalf."
Emphasizing on the use of words "under this Act" Justice GR Swaminathan of the Madurai Bench observed,
"The Notary must tread on the path laid down by the Act. If during the course of such treading some mishap occurs, the statute is there to protect him against vexatious prosecution. If the Notary abandons the statutory path and undertakes an independent journey, he has to take the consequences and cannot invoke Section 13 of the Act."
The court observed that the provision is "animated" by a public policy and it is trite law that in the absence of a "protective provision" like Section 13, a Notary Officer could be implicated in any number of cases as he will not be personally aware of each and every person who comes to him.
However in the case at hand it was underlined, that the larger question relates to the extent of this protection.
The Petitioner-Notary Officer had approached the High Court seeking quashing of criminal proceedings pending against him allegedly for conspiring with the other co-accused to forge a resolution under the complainant's signature.
It was alleged that the resolution notarized by the Petitioner contained signatures of as many as 23 trustees, including one of the trustees who had died two years ago.
The court observed that there was nothing on record to show that the document in question which was notarised by the Petitioner was also duly notified by him in the notarial register.
"The petitioner had not demonstrated that the document in question finds mention in the said register. If that had been done, I could have come to the conclusion that the petitioner had acted in a bona fide manner and that the principal accused had pulled wool over the eyes of the petitioner. In this case, there is nothing on record to show that the act of the petitioner fell within the four corners of the statutory frame work," the court observed while denying him relief.
The court was satisfied that prima facie a case for forgery was made out and the only question before it was "whether even a reckless or malafide discharge of notarial functions would still attract the protective shield of Section 13 of the Act."
Answering in the negative Justice Swaminathan said,
"In my view, the key lies in a proper understanding of the expression "under this Act" occurring in the said provision. In other words, only if the notarial function has been discharged under the Act, Section 13(1) of the Act will kick in and not otherwise."
"When Section 13 of the Notaries Act, 1952, comes up for consideration, the expression "under this Act" cannot be ignored or glossed over. No part of a statutory provision can be left out of consideration. I therefore, hold that only when the notary has exercised or purported to exercise his functions under the Notaries Act, 1952, he can hide behind Section 13 of the Act."
Reliance was placed on a decision of the Bombay High Court in Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah & Anr., AIR 1992 Bom 149, whereby it was held thus,
"It is the responsibility of a notary to satisfy himself that the original document intended to be executed before him was executed by the person concerned and not by someone else in the name of a different person. It is the responsibility of the notary to satisfy himself about the identity of the execution of the original document by making all reasonable inquiries including insistence of identification of a member of the public by a legal practitioner known to the notary. Unless the executant is known to the notary personally, the notary must insist on written identification of the executant by an advocate in order to minimise the possibility of cheating by personification."
The court also referred to a verdict of the Delhi High Court in Gian Singh v. State, (2010) 114 DRJ 343, whereby the Judge declined to grant relief in a similar quash petition because there was no entry of the document involved in that case in the notarial register.
"Section 13 will not come to the rescue of those notaries who exercise their function de hors the procedure set out in the statute and the rules framed thereunder," Justice Swaminathan therefore concluded.
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