K. Narayanaswami Reddiar vs T. Kolandaivelu Chettiar and Another

Somasundaram, J.—This appeal is directed against the order passed by the learned 6th Presidency Magistrate, Saidapet Madras in M. P.

No. 32 of 1967 on his file declining to launch prosecution as requested by the appellant, against the respondents for offences under Sections 211

and 193 of the I. P. C, The appellant and the first respondent are, film financiers. The second respondent, Vallinayagam. wanted an amount of Rs.

25.000 for financing his productions. Respondent No. 1, Kolandaivelu Chettiar, who had already advanced amounts was short of money on a

particular date and he advanced only Rs. 17,500. The appellant who was then present offered to pay the balance of Rs. 7,500 to the second

respondent and for that purpose he requested the first respondent to execute a promissory note in favour of one Krishna-swamy Reddiar his

nominee for Rupees 7,500. Believing his representations the promissory note was executed, but the amount was not paid. The promissory note

was also not returned. Respondent No. 1 filed the complaint against the present appellant for cheating within the meaning of Section 420, I. P. C.

and deposed to these facts as P. W. 1. P. W. 2 Vallinayagam stated that the amount was not paid to him. The appellant. In defence, pleaded that

the promissory note said to have been executed by the said first respondent to Krishnaswamy Reddiar had nothing to do with the production of the

picture ""Anbulla Athan"", and added, that he did not know as to why P. W. 1 executed a promissory note. He further stated that no promissory

note was executed by P. W. 1 to anyone at any time at his instance. Observing that the evidence adduced on the side of the complainant was not

altogether satisfactory and holding that at the worst the matter would amount only to a breach of promise, the learned Magistrate, discharged the

appellant u/s 253 (1), Criminal P. C. This was on the 10th of March, 1967. Thereupon, on 6-4-1967 the appellant filed a petition u/s 476,

Criminal P. C. before the learned Magistrate requesting him to file a complaint against the present respondents for having filed a false complaint

and given false evidence in Court. The petitioner was absent on 28-8-1967 and the learned Magistrate dismissed the application stating that there

was no ground for sanctioning the prosecution. The correctness of this order is now canvassed in the present appeal.

Under Section 476, CL (1) of the Criminal Procedure Code.

When any Court ............ is of opinion that it is expedient the the interests of justice that an inquiry should be made into any offence referred to in

Section 195, Sub-section (1) Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such

Court may, after such preliminary inquiry, if any, as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed

by the presiding officer of the Court"".

u/s 479-A, Criminal P. C. where a witness has Intentionally given false evidence in judicial proceedings, if the Court feels, that for the

eradication of the evils of perjury and in the interests of justice, it is expedient that such witness should be prosecuted, the Court shall, at the time of

the delivery of the judgment, record a finding to that effect stat-ing its reasons therefore and if it so thinks fit, after giving him an opportunity, to

make a complaint thereof, in writing, and forward the same to a Magistrate of the First Class.

The Magistrate, who tried this case, had all the materials before him, when he passed the order of discharge u/s 253 (1). Criminal P. C.

Obviously, he did not consider it necessary or expedient to launch proceedings against the respondents for preferring any false complaint or for

perjury. Where after the judgment documents, which would establish the falsity of the evidence of the witness, are brought to the notice of the

Court, Section 479-A. Criminal P. C. will not apply and sub-section (6) of the section will not operate as a bar for proceeding under Sections 476

to 479. Criminal P. C. Vide C.P. Kasi Thevar Vs. Chinniah Konar, and Kuppa Goundan and Another Vs. M.S.P. Rajesh, . No material was

placed subsequently by the appellant to show that the complaint which was filed, was false or the evidence, which was Riven amounted to perjury.

The materials were there even at the time when the learned Magistrate passed the order of discharge. Petitioner does not base his claim for

launching proceedings against the respondents on any new material, but only on the materials available from the evidence of P. W. 1 and P. W. 2

and the documents already filed. Therefore, in these circumstances, the bar u/s 479-A, Clause. 6, Criminal P. C. would come into operation.

Even otherwise this Is not a case where a complaint should be filed in the interests of justice. The matter relates to the execution of a promissory

note. The executant says that he executed it believing certain representations: The appellant avers that he had nothing to do with the promissory

note. It is said that suits were Instituted on the promissory note and that they are pending. To say that the complainant has not proved his case u/s

420, I. P, C. is not always the same as saying that it has been proved that the complaint given by him was false. ""The bare fact that subsequently it

was noticed that false evidence was given in a proceeding, by itself, will not be sufficient for concluding the expediency of prosecution. Before

launching prosecution, one has to bear in mind that hundreds of actions are tried yearly in which the Court finds the evidence Irreconcilably

conflicting and therein one or the other side must have wilfully and deliberately perjured. The Courts do not often pronounce on the falsity of

evidence when coming to findings. If prosecution has to be launched in every case, and particularly at the instance of the opposite party, then there

will be no limit to litigation between the parties. This aspect of the matter must make the Court pause and consider the expediency of prosecution in

a particular case with reference to its facts and not launch prosecution at the instance of parties in every case where perjury is discovered."" Vide

Rangaswami Reddiar Vs. Gunnammal, The learned Magistrate has correctly dismissed the petition stating that there was not sufficient ground for

taking any action against the respondents. The appeal fails and the same is dismissed.