Private Complaint Against Notary for his Official Act Not Maintainable

Recently, the High Court of Kerala has observed that no court shall take cognisance of an offence committed by a notary public in the exercise of his functions under the Act except when a complaint is made in writing by an authorised officer of State or Central government by special or general order.

After making the aforesaid observation, Hon’ble Justice MR Anitha quashed the charge sheet filed against a Notary Advocate accusing her of aiding a man to make a forged Power of Attorney as the original.

The Court observed that the bar mentioned u/s 13 of the Notaries Act was mandatory, and if no protection is granted to notaries, then it will become difficult for them to perform their duties.

The contention of the accused/Advocate:

The Advocate in question approached the High Court and argued that registration of the alleged crime and the cognisance taken by the Judicial Magistrate against her was barred under Section 13 of the Notaries Act.

Observations of the Court:

The Court observed that it is the prerogative of the criminal Court to find out whether allegations made against a notary public are related to the official duties performed by a notary as mentioned u/s 8 of Notaries Act.

It was further observed that the Court should apply its judicial mind to determine whether the subject matter of the complaint is related to the official Act of the notary or something beyond his/her official duty.

If it is determined that acts done by the notary public were beyond his/her official duty, then there is no need to take sanction u/s 31(1) of the Act.

After considering the allegations made against the notary, the Court opined that a notary could not be expected to know every person in order to notify a document in his Notarial register.

The decision of the Court:-

The Court held that as per the settled position of law, it could be safely concluded that the bar provided u/s 13(1) is mandatory, and no court is allowed to take cognisance of an act done by a notary while dispensing their official duty.

In light of all the facts of the case and provisions mentioned under Section 13 of the Notaries Act, the charge sheet filed against the accused/Advocate was quashed by the Hon’ble Kerala High Court.