Section 13 of the Notaries Act does not protect a notary participating in document forgery.

The petitioner, Accused No. 8 in C.C. No. 29 of 2023 before the Enquiry Commissioner and Special Judge (Vigilance), Kozhikode, was a Notary Public.

The prosecution case arose from alleged irregularities in the grant of a building permit and invoked Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, and Sections 466, 468, 471, 477A and 120B of the IPC against Accused Nos. 1 to 9.

The specific allegation against the petitioner was that he attested a consent letter purportedly executed by CW3, although CW3 had not appeared before him or executed the document, and that the petitioner failed to make the relevant entry in the Notarial Register.

The petitioner sought quashing of the final report and all proceedings against him on the ground that cognizance of an offence committed by a Notary in the exercise or purported exercise of his functions could not be taken without a written complaint by an officer authorised under Section 13(1) of the Notaries Act, 1952.

Section 13(1) of the Notaries Act, 1952 bars a court from taking cognizance of an offence committed by a Notary in the exercise or purported exercise of his functions under the Act except upon a written complaint by an officer authorised by the Central or State Government.

However, the protection is confined to official acts performed in the lawful discharge, or purported discharge, of statutory notarial functions; it does not extend to acts committed in a personal capacity, acts wholly outside the Notary’s statutory functions, or acts involving prima facie criminal intent such as participation in the creation or certification of a forged document.

The Court relied on Chandmal Motilal Bora v. State of Maharashtra, 2004(2) MHLJ 41, as extracted and followed in V.P. Jyolsna v. State of Kerala & Anr., 2021 (1) KLJ 117, and also referred to Malu K. v. State of Kerala for the distinction between protected official acts and criminal acts outside the scope of notarial functions.

Section 8 of the Notaries Act, concerning the functions of a Notary, was relevant to determining whether the alleged conduct was within the scope of official notarial duties.

The Court held that Section 13(1) does not provide blanket immunity for every offence having some connection with a Notary’s work.

The prosecution specifically alleged that the petitioner certified the execution of the consent letter despite the purported executant, CW3, never having appeared before him or signed the document.

Attesting a document in the absence of its executant, coupled with the alleged failure to record the transaction in the Notarial Register to conceal the forgery, indicated prima facie participation in the fabrication of the document and the existence of mens rea.

Such conduct could not be characterised as a lawful or bona fide exercise, or purported exercise, of a Notary’s functions under Section 8.

It was therefore outside the protection of Section 13(1), and the absence of a complaint by the authorised officer did not invalidate the cognizance or prosecution.

It held that the alleged execution and attestation of the consent letter in the absence of the purported executant was not an official notarial act protected by Section 13(1) of the Notaries Act.

Consequently, the requirement of a complaint by an authorised officer was inapplicable, and the prosecution was not barred.

The Criminal Miscellaneous Case was dismissed, any interim stay was vacated, and the Special Court, Kozhikode, was permitted to proceed with the trial.

A copy of the order was directed to be forwarded to the Special Court for information and compliance.