Courts should be circumspect while taking cognizance of private complaints against Notaries Public: Kerala High Court

The Kerala High Court has reiterated that no court shall take cognisance of any offence committed by a notary public in the exercise of his functions except on a written complaint by an officer authorised by the Central Government or a State Government. (VP Jyolsana v. State of Kerala).A Bench of Justice MR Anitha was hearing a plea filed by a Notary to quash a charge sheet against her. The Notary was accused of aiding a person to legitimise a forged Power of Attorney deed..Justice Anitha observed that Section 13 of the Notaries Act, 1952 bars Courts from taking cognizance of a complaint against a Notary Public except by a complaint in writing by an authorised officer..The Judge emphasized that the bar under Section 13 of the Notaries Act is mandatory and necessary to ensure they performed their statutory duties..The Notary in this case had approached the High Court contending that the registration of the private complaint against her and the cognizance taken by the Judicial First Class Magistrate was contrary to Section 13 of the Notaries Act..Agreeing with the Notary, the Court stated that the first task before a Court was applying its judicial mind to ascertain whether the charges relate to the Notary’s official functions. .Where the functions were unconnected with official functions, for instance, if she commissioned a homicide, a complaint on this count would not need an authorised officer’s sanction, the Court elucidated..Adding to this, the Court took note of the fact that a Notary’s function was to notify a document in the Notarial Register. When exercising this function, it was not necessary that the Notary knows that the person before him/her or that s/he could ascertain the genuineness of the document before him..“…it is quite impossible for a Notary to know the genuineness of the document produced before him for attestation. The 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 generally introduced to parties by persons who happen to be persons of his acquaintance. 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. With this object Section 13 has been enacted by the Legislature as a safeguard.”Kerala High Court.Section 8 of the Act specifies the Notary’s task as pertaining to verifying, authenticating, certifying or attesting the execution of any instrument..A Notary Public could not possibly know the genuineness of the document or fraud, which would only be revealed after the document was executed, the Court noted..Underscoring the need to protect Notaries Public from unwarranted interference with their statutory functions, the complaint was quashed. The Court said,."If no such protection is granted to a notary it will be difficult for them to perform their acts as contemplated to be done as a notary. So whenever a criminal prosecution is launched against a notary public a court should not be oblivious of the protections given to them under the Act and straight away take cognizance without verifying the nature of the complaint and formality to be complied.".Read the Judgment: