M. Rathnakar vs State of Karnataka

K.N. Phaneendra, J.—Sri. B.T. Venkatesh, learned S.P.P.-II, is directed to appear in this case, on behalf of the 1st Respondent-State.

Notice to Respondent No. 2 is unnecessary as no adverse order is passed. Hence notice to Respondent-No. 2 is dispensed with.

The petitioner has approached this court seeking quashing of the entire proceedings in C.C. No. 4167-2014 pending on the file of the Principal Chief Judicial Magistrate, Mangalore, D.K.

The brief factual matrix of the case are that, the Special Land Acquisition Officer (for short, ''Spl. LAO''), Karnataka Industrial Area Development Board (for short, ''KIADB''), lodged a complaint on 13.02.2009 making allegations against some persons that, a person by name Jayapal, posing himself as son of Sri. Bhavani Shankar Rao and by means of creating five Power of Attorneys, has received a sum of Rs. 7,13,643/-. It is also alleged that the said five Power of Attorneys were forged and this petitioner is the Notary, who notarized the said Power of Attorneys and it is stated in the charge sheet papers that all the accused persons are involved in committing fraud against the Spl. LAO.

The entire charge sheet papers are not/placed before this court in order to come to a definite conclusion as to the specific allegations made against this petitioner and what are the statements of the witnesses in this regard.

The learned counsel for the petitioner has strenuously contended that the petitioner is the Senior Advocate practicing and also since long practicing as a Notary. He has not got even a single black mole through-out his career and there is no allegations specifically made against this petitioner that he actually involved in creating such documents and knowing fully well that the signature is forged, he notarized the said documents. Therefore, the learned counsel contends that the entire charge sheet filed against the petitioner is not tenable.

Learned counsel has also brought to my notice that the trial Court instead of issuing summons to the accused at the initial stages, immediately after filing of the charge sheet, issued summons to Accused Nos. 1 & 2 and NBW to Accused Nos. 3 & 4, i.e., to say, to the petitioner who arraigned as Accused No. 3. Therefore, the said order is causing heavy hazardous to the petitioner and the same is consequently required to be quashed.

The learned counsel also cited a Ruling of this Court reported in Ratna Vs. The State of Karnataka, , wherein this court while considering Section 13 of the Notaries Act, 1952, held that there is a legal bar for the court to take cognizance of any of the offences committed by a Notary. Further, while dealing with the said matter, this court has dealt with the entire charge sheet papers in detail and on considering the statements of all the witnesses, came to the conclusion that no allegations are available against the Notary in order to inculpate him into the crime.

Looking to the above facts and circumstances of this case, it is just and-necessary for this court to go through the entire charge sheet materials on record before applying the above provision. also considering the facts of the case.

Learned counsel for the petitioner is right in contending that, the learned CJM has wrongly issued NBW against this petitioner at the first instance. The charge sheet discloses that Accused No. 3 has been shown to be absconding. It is rightly contended by the learned counsel that the Accused No. 3 is a practicing Advocate regularly available; perhaps, the police without looking into all these materials, have shown that he is absconding; Even otherwise, the Court has got discretion to issue summons at the initial stages and if the summons are not served, refused or avoided by the accused, then only the court has to take coercive steps for issuing NBW against the petitioner. Therefore, I am of the considered opinion that the petitioner has to approach the trial Court by filing appropriate application for grant of bail and then contest the proceedings by making an application for his discharge. In that event, the trial Court will get an opportunity to go through the entire materials on record, apply the principle laid down in the above said Ruling and pass appropriate orders. Therefore, I find sufficient materials to quash the order dated 02.11.2014 in issuing NBW against Accused No. 3. The court has to issue summons to Accused No. 3 to secure his presence. However, without waiting for the summons by the Court, the petitioner is at liberty to appear before the trial Court and file necessary application for grant of bail and for his discharge from the proceedings. In that event, the court has to consider the said application for bail on the ''date, on which it is filed. The trial Court also shall dispose of the application for discharge in accordance with law, as early as possible, by providing an opportunity to both the sides.

With the above observations, the petition is disposed of.