K NARAYANASWAMI REDDIAR Vs. T KOLANDAIVELU CHETTIAR

JUDGEMENT

(1.) 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 apspellant. 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 under Section 253 (1), Criminal P. C. This was on the 10th of March, 1967. Thereupon, on 6-4-1967 the appellant filed a petition under Section 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 28-81967 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.

(2.) UNDER Section 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 therefor 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.

(3.) THE Magistrate, who tried this case, had all the materials before him, when he passed the order of discharge under Section 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 falisty 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 Kasi Thevar v. Chinniah konar, and Kuppa Goundan v. 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 under Section 479-A, Clause. 6, Criminal P. C. would come into operation.