P. IMBICHI KOYA vs STATE OF KERALA
- Court
- Kerala High Court
CNR : KLHC010540662026
2026:KER:73609
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
THURSDAY, THE 24 DAY OF SEPTEMBER 2026 / 2ND ASWINA, 1948
CRL.MC NO. 6240 OF 2026
CRIME NO.3/2014 OF VACB, KOZHIKODE, Kozhikode
CC NO.29 OF 2023 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE), KOZHIKODE
PETITIONER/ACCUSED NO.8:
P. IMBICHI KOYA
AGED 67 YEARS
S/O.MOIDEENKUTTY HAJI, ADVOCATE AND KERALA STATE NOTARY,
PONNUS VILLA, GOLF LINK ROAD, MALAPARAMBA, KOZHIKODE, PIN
- 673009
BY ADVS.
SHRI.S.RADHAKRISHNAN
SHRI.S.RAJMOHAN
SRI.ADITYA THEJUS KRISHNAN
SMT.ASWATHY P.V.
RESPONDENTS/COMPLAINANT NO.1& 2:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031
2 DEPUTY SUPERINTENDENT OF POLICE
KOZHIKODE UNIT, THONDAYAD, KOZHIKODE, KERALA, PIN -
673017
BY SR.PUBLIC PROSECUTOR SRI.K.BIJU
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.08.2026, THE COURT ON 24.09.2026, PASSED THE FOLLOWING:
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CR
ORDER
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Dated this the 24 day of September, 2026
Accused No.8 in C.C.No.29/2023 on the files of the Enquiry
Commissioner and Special Judge, (Vigilance), Kozhikode, has
filed this Criminal Miscellaneous Case, seeking the following
prayers:
“To set aside the final report (Charge sheet no
05/2023/ KKD dated 07.07.2023) filed before the
Court of the Enquiry Commissioner and Special
Judge, Kozhikode in CC No 29/2023 to the extent it
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applies to the petitioner who is arrayed as the 8
accused and all further proceedings against him in CC
No 29/2023 in the Court of the Enquiry Commissioner
and Special Judge, Kozhikode.”
2. In this case, as per Annexure 2 final report, the
prosecution case is that accused Nos.1 to 9 committed offences
punishable under Sections 13(1)(d) r/w 13(2) of the Prevention
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of Corruption Act, 1988 (for short, 'the PC Act' hereinafter) as
well as under Sections 466, 468, 471, 477A and 120(b) of Indian
Penal Code (for short, 'the IPC' hereinafter), in the matter of
grant of building permit.
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3. This petition has been filed at the instance of the 8
accused, who is a Notary Public and the contention raised by the
learned counsel for the petitioner to quash the case against the
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8 accused could be seen from paragraph Nos.4 to 7 of the
Criminal Miscellaneous Case. According to him, since Section
13(1) of the Notaries Act, 1952 (for short, ‘the Notaries Act’
hereinafter), provides 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 a complaint in
writing made by an officer authorised by the Central
Government or a State Government by general or special order
in this behalf, the cognizance of an offence against a notary
public in respect of acts done in the exercise or purported
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exercise of his functions under the Notaries Act cannot be taken
except upon such a complaint being made by an officer so
authorized. According to the learned counsel for the petitioner,
in the instant case, the authorized officer is the Secretary,
Department of Law, and therefore, in order to proceed against
the petitioner, a complaint in writing made by the authorised
officer is necessary. However, in the instant case, no such
complaint in writing has been made and, in such view of the
matter, the prosecution against the petitioner cannot be
sustained.
4. Whereas, it is submitted by the learned Public
Prosecutor that, in the instant case, a consent letter was attested
by the Notary without the consent of the alleged executant of the
document, as stated by the alleged executant. It is further
submitted that the Notary himself has committed the offence of
forgery and, in order to suppress the issuance of such a forged
consent letter, he had willfully not entered the execution of the
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consent letter in the Notarial Register. 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.
Consequently, the protection under Section 13 of the Notaries
Act is not available to the petitioner. Therefore, the mandate
contained in Section 13(1) of the Notaries Act has no application
to the present case and, consequently, this Criminal
Miscellaneous Case is liable to be dismissed on the said ground.
5. In fact, as submitted by the learned counsel for the
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petitioner, in the decision in V.P.Jyolsna v. State of Kerala &
Anr reported in [2021 (1) KLJ 117], a learned Single Judge of
this Court considered in paragraph No.3 an identical situation
dealt in paragraph No.10. Thereafter, in paragraph No.22, the
learned Single Judge observed as under:
“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
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463, 464, 465, 467, 468, 471, 472 & 474 r/w. 34 IPC.
10. To support the contention the learned
counsel placed reliance upon various
decisions. Chandmal Motilal Bora v. State of
Maharashtra [2004(2)MHLJ 41] was drawn to my
attention first. That was a case in which a practising
Advocate and Notary approached the High Court of
Bombay for discharging him from criminal
prosecution involving offences under Sections 395,
344, 347, 365, 387, 324, 506 r/w. S. 120b of IPC. In
that case, while dealing with the scope of Section
13(1) of the Act and the application of mind by the
court whether the act alleged is an official act or not
of a notary public the following discussions have been
made which seem very relevant in this context to be
extracted and same reads as follows:
"5. THEREFORE, if any allegation is made
against a Notary which touches the official
performance as a Notary, the Criminal Court
is forbidden from taking cognisance unless the
complaint in writing is made by an officer
authorised by the Central Government or
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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
allegations is directly concerned with his
official duty or the performance which he has
to do as indicated in S.8 of Notaries Act. The
Court which has been requested to take
cognisance 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 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
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committed an offence, there is no need of
having a sanction to the complaint in writing
of an officer as contemplated by provisions
of S.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 cognisance of the allegations against
the Notary."
From the above, it is clear that whenever a question of
official act of Notary comes for determination, it is the
duty of the criminal court to find whether the
allegations are directly concerned with his official duty
or the performance which he has to do as indicated
in Section 8 of the Act. The court has to apply its
judicial mind and to see whether the subject matter of
the complaint is the official act of a notary or is an act
beyond his official performance. The unauthorised acts
of a notary is also illustrated by stating commission of
murder or assault of a person for causing hurt,
grievous hurt etc. So if at all the allegations against the
Notary is such unofficial acts or acts not connected
with his/her official duties definitely the sanction
under Section 13(1) need not be obtained. Paragraph
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No.6 of the said decision makes the matters more clear
which is extracted as follows:
"6. 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 register. 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
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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 notary and
members of public at large would be facing
number of difficulties at every step and with
this object S.13 has been enacted by the
Legislature with a foresight."
22. As found earlier cognizance taken against
the petitioner/2nd accused in non compliance
of Section 13(1) of the Notaries Act, 1952 is bad in
law. So the continuance of all the proceedings in
C.C.No.851/ 2014 on the files of the Judicial First
Class Magistrate Court-I, Kannur against the
petitioner as second accused would be an abuse of
process of law. Hence, I am of the considered view
that this is a fit case to invoke the inherent powers
vested with this Court to quash the proceedings
against the petitioner.”
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6. As pointed out by the learned counsel for the petitioner
in Crl.M.C.No.7127/2022 in Malu K . v. State of Kerala also,
this Court found the same ratio. Here, CW2 and CW3 gave
statements to the police to that effect that they had not appeared
before the Notary for signing the consent letter. In the facts and
circumstances of the case, the question that falls for
consideration is whether the cognizance taken against the
petitioner/accused No.8 is bad in law for want of compliance of
Section 13(1) of the Notaries Act.
7. Viewing the legislative intent behind the
incorporation of Section 13(1) of the Notaries Act, it could be
decipherable that, if a Notary does an act not in accordance with
the provisions of the Notaries Act and is alleged to have
committed an offence, there is no need for a sanction to the
complaint in writing by an officer, as contemplated under
Section 13 of the Notaries Act. Similarly, when a Notary is alleged to
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have committed an offence by his act directly in his personal
capacity, Section 13(1) of the Notaries Act has no application. Thus,
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. For example, if a Notary attests
a true copy of a forged document without knowing that the said
original document was forged, he would get the protection
under Section 13 of the Notaries Act. Thus, the protection is
available to a Notary when his mens rea in committing the
offence/offences could not be found prima facie , as referred to
hereinabove. At the same time, when the facts of the case reveal
that the Notary had mens rea and had not taken the necessary
precautions while performing the functions of a Notary, as
contemplated under Section 8 of the Notaries Act, and had taken
part in execution of documents in the absence of the executants, the
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Notary is taking part in the act of forging a document. Forging a
document by a Notary could not be held to be an act done by a
Notary in the exercise or purported exercise of his functions under
the Notaries Act, and the same is outside the scope
of
Section 13 of the Notaries Act. It is apropose to note that in the
instant case, the mens rea of the petitioner in doing the act of
forging the disputed consent letter is foreseeable as the
prosecution specifically alleges that he did not make the
necessary entries in the Notarial Register and other records
regarding the execution of the forged consent letter with a view
to screen himself for the act of forgery, prima facie . Therefore, 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
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same.
8. In the instant case, as already discussed, the allegation of
the prosecution is that the consent in the name of CW3, Sri.Rajan
Nair, was executed in the presence of the petitioner, a Notary, on
02.11.2009, and according to CW3, he
did not appear before the Notary or execute the consent letter.
His statement would further show that either he himself or his
siblings never visited the office of Sri.Imbichi Koya, the Notary
Public who certified the execution of the forged consent letter. If
so, the execution of a document by a Notary in the absence of
the party executing the same is not an act to be construed as one
while exercising or purporting to exercise the functions of a
Notary, and the same is outside the scope of Section 13(1) of the
Notaries Act. Thus, on facts of this case, the plea raised by the
petitioner to quash the criminal proceedings against him for
want of compliance of Section 13(1) of the Notaries Act would
not succeed and in such view of the matter, this petition is liable
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to fail.
In the result, this petition is dismissed. The interim order
of stay, if any, shall stand vacated, with liberty to the Special
Court, Kozhikode, to proceed with the trial.
Registry is directed to forward a copy of this order to the
Special Court, Kozhikode, for information and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
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APPENDIX OF CRL.MC NO. 6240 OF 2026
PETITIONER’S ANNEXURES
Annexure 1 THE CERTIFIED COPY OF THE FIR DATED
17.02.2014 FILED BY THE DEPUTY
SUPERINTENDENT OF POLICE VACB KOZHIKODE
ALONG WITH THE TYPED VERSION
Annexure 2 THE CERTIFIED COPY OF THE FINAL REPORT
IN CC NO.29/2023 PENDING BEFORE THE
ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
KOZHIKODE
RESPONDENTS’ ANNEXURES : NIL