STATE OF KERALA REP BY SECRETARY TO GOVERNMENT LAW DEPARTMENT SECRETARIAT TRIVANDRUM Vs. G SREEDHARAN NAIR

JUDGEMENT

(1.) Does it require any 'wrongful intention or a corrupt motive' in connection with any act/omission, to constitute any delinquency in respect of Section 8 (1) (a) of the Notaries Act to remove the name of a Notary from the Register maintained under Section 4, as provided under Section 10 (d) of the Act, read with Rule 13 (12) (b) of the Notaries Rules 1956, is the primary question. A Notary who is bound to discharge the notarial acts as per the specific provisions of the Act/Rules, if attests an affidavit without signature of the deponent therein, certifying that the deponent had subscribed his/her signature in his presence, will it constitute any misconduct/professional misconduct to be proceeded with, is the specific point to be answered. Whether the law declared by a learned Single Judge of this Court in Mohandas Vs. State of Kerala, 2001 3 KerLT 174 that, in order to characterise certain act or omission as misconduct/ professional misconduct, there must be 'wrongful intention or corrupt motive', to be in conformity with the statutory prescription, has been correctly laid down, is yet another question to be answered.

(2.) This appeal has been preferred by the State and its officers, being aggrieved of the judgment in W.P.(C) No. 28720 of 2009, whereby the punishment imposed upon the respondent/writ petitioner barring from pursuing his practice as a Notary, in view of the proven misconduct and the notification issued in this regard, has been intercepted by the learned Single Judge, placing reliance on the decision cited supra and also that of a Division Bench of the Allahabad High Court in Government of Uttar Pradesh Vs. Kashi Prasad, 1969 AIR(All) 363, wherein it was held that, every irregularity or negligence on the part of a Notary would not amount to professional misconduct.

(3.) The sequence of events is as follows : The respondent/writ petitioner is a lawyer, practising mainly in the Courts of Thiruvananthapuram District, ever since from 13.11.1971. He was appointed as a Notary by the State Government on 14.03.1995. The registration as Notary was being renewed from time to time, but when he applied for renewal in the year 2005, the application was rejected, which led to filing of W.P(C) No. 9931 of 2005. The said case was disposed of as per Ext. P1 judgment, quashing the impugned order (Ext. P10 therein) and directing the Principal Secretary to the Department of Law to reconsider the matter, as specified, in relation to the restriction of number of Notaries and renewal of certificate of practice. Pursuant to the said verdict, the matter was considered and the respondent was given renewal as per Ext. P2, for a further period of five years from 16.12.2006 and this was notified as prescribed, vide Ext. P3 notification.