K NARAHARI PILLAI Vs. STATE

JUDGEMENT

(1.) The petitioner has been convicted of an offence punishable under the first clause of Section 193, I. P. C., and sentenced to undergo rigorous imprisonment for four months. The complaint against the petitioner was made by the Judicial 1st Class Magistrate, Chandragiri. It relates to the evidence given by the petitioner, as P. W. 2 in C. C. 121/55 on the file of the Court of that Magistrate. In that case one M. Venkureddi, an ex-president of the Co-operative Society of Penubaka, was prosecuted for the temporary embezzlement of a sum of Rs. 219-1-0, collected by him on behalf of the Society from a borrower named P. Vengureddi. The petitioner as P. W. 2, deposed on 6-6-1955 in his examination-in-chief consistently with what he had stated earlier in his statement on oath, Ex. P. 2, to the Co-operative Inspector, that the money was received by the ex-president on 16-4-195

(2.) But he resoled during his cross-examination on 8-8-55 and said that he did not know whether the ex-president received the amount. This was the gist of the charge against him under Section 193, I. P. C. His main defence was that his deposition Ex. P-1 in C. C. 121/55 was not read over to him. The trial Magistrate held against him relying on the evidence of the Bench clerk, P. W. 1 who said that the deposition was duly read over in the Court. The same view was taken by the Sessions Judge on appeal, who confirmed the conviction and sentence. 2. The learned counsel for the petitioner contends that the Judicial 1st Class Magistrate of Chandragiri did not record a finding as required by Section. 476, Criminal P. C., before forwarding the complaint, that it was expedient and in the interests of justice to make an enquiry into the offence. But no objection to the complaint in this particular form was taken in either of the Courts below. If it had been raised, the defect might have been rectified by fresh proceedings under Section 476, Criminal P. C., and by filing a fresh complaint. By reason of Section 537, Criminal P. C., it is too late for the petitioner now to take advantage of such an irregularity, even if it existed, in the complaint.

(3.) Another contention of the petitioner in this connection is that the acquittal of the ex-president M. Venkureddi in C. C. 121/55 did not turn on the petitioners evidence. The judgment of 30-9-1955 in C. C. 121/55 shows that the Magistrate regarded the petitioners evidence as supporting M. Venku Reddys story that he did not receive Rs. 219-00 on 16-4-1951 but received it some time later. The main ground for the acquittal, however, was that there was no proof of the mis-appropriation of the amount by M. Venkureddi, who was a propertied man and that even if he had received the amount on 16-4-1951 he had been only negligent in his duties. The learned counsel for the petitioner urges that there was no need to prosecute the petitioner in the interests of justice as his evidence was not the deciding factor in favour of M. Venkureddt. But this consideration is not germane after the prosecution of the petitioner was launched. Once an alleged offence is lawfully taken cognizance of upon a valid complaint, the material question is whether the alleged offence has been committed and not whether the complaint need not have been filed. If the offence has been proved to have been committed, the fact that it did not cause much harm may only be taken into consideration in assessing the punishment.