Krishna Rao, J.
1. The petitioner has been convicted of an otfence 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 16-4-1952. But he resiled 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 petitioner's evidence. The judgment of 30-9-1955 in C. C. 121/55 shows that the Magistrate regarded the petitioner's evidence as supporting M. Venku Reddy's 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 beencommitted, the fact that it did not cause much harm may only be taken into consideration in assessing the punishment.
4. The next objection of the petitioner is based on the fact that Shri Dasaradharama Reddi the Judicial 1st Class Magistrate who tried M. Venkureddi in C. C. 121/55 declined to make the complaint on the ground that 'on a reading of the two versions given by the respondent it is not possible to easily infer that he intentionally Rave false evidence.' This order, passed by the Magistrate on 15-11-1955, was set aside on 1-2-1956 by the Sessions Judge on appeal as being perfunctory and not in conformity with Section 367, Criminal P. C., and the matter was remitted for disposal according to law.
Thereafter, Sri Jagannatharao, the successor of Dasaradharama Reddi made the complaint on 2-5-1956. On these facts, the learned counsel for the petitioner raised three points.
5. The first is that there was a delay of about 8 months after the disposal of G. C. 121/55 in which false evidence is alleged to have been given. He cited Aiyakannu Pillai v. Emperor, ILR 32 Mad 49 (A), where it was held by a Full Bench of the Madras High Court that the power conferred by Section 476 can be exercised by the Court only either in the course of the judicial proceedings or at its conclusion or so shortly thereafter as to make it really a continuation of the same proceedings in the course of which the offence is committed and on this principle a complaint which was delayed by 21 days was bad.
But as pointed by Chandra Reddi J., (as he then was) in the unreported judgment in In re V. Danaiah, Appeals Nos. 4-45 to 447 of 1954 (since reported in AIR 1956 Andhra 123) (B), the decision in ILR 32 Mad 49 (A) was based on the wording of Section 476, Criminal P. C., prior to its amendment in 1923. After the amendment it cannot be said as a proposition of law that the delay vitiates the complaint, though it can be taken into consideration by the complaining Court in order to decide whether a complaint should be made at all. The question of delay is, therefore, of little importance after the prosecution is launched.
6. The second point is that the Sessions Judge had no power to remand the matter for fresh disposal as he did on 1-2-1956 and that his powers are confined to those mentioned in Section 476B, Criminal P. C. Reliance is placed in this connection on the observations of Kumarayya J., (sitting singly) in Mryuthunjayudu v. Venkatakrishnama Raiu, 1957-2 Andh WR 239 (C) at page 241. But the point is covered by a Division Bench decision and a Full Bench decision of the Madras High Court, which are binding on this Court.
In Krishnamachari v. Emperor, 1933 Mad WN 902: (AIR 1933 Mad 767) (D), a Division Bench ot the Madras High Court held that the contention that Section 476-B is exhaustive as to the powers of the appellate Court in the case of a complaint made under Section 476 is incorrect, and that the appellate Court has power of remand and also of summary dismissal in such cases. Similarly in Janardanarao v. Laxshmi Narasamma, 1933 Mad WN 1476: ILR 57 Mad 177 : (AIR 1934 Mad 52) (E), the Full Bench held that Section 476-B is not self-contained and that in dealing with an appeal under Section 476-B, the Court is competent to pass an order of remand under Clause (c) and (d) of Section 423, Criminal P. C.
7. The third point taken is that the complaint was filed after the new Section 479A came into force on 1-1-1956 and that under Sub-section (1) of Section 479-A, a complaint of giving false evidence can be made by the Court only at the time it finally disposed of the proceeding in whicli false evidence is alleged to have been given. But Sub-section (6) of Section 479-A lays down that Sections 476 - 479 would not be applicable to the prosecution only if in respect of such a person proceeding may be taken under Section 479-A, Criminal P. C.
It is impossible to take proceedings under Sub-section (1) of Section 479-A in cases finally disposed of prior to its coming into force. The bar under Subsection (6) can only apply to cases which were not finally disposed of before 1-1-1956 and in which the false evidence is alleged to have been given. Hence there is no force in the contention that the complaint in the present case is invalid,
8. Finally, the learned advocate for the petitioner contends that there was really no conflict between what he stated in his examination-in-chief and his cross-examination. According to the learned advocate, the petitioner merely thought from the entries made in the cash book by the ex-president that the amount was paid on 16-4-1951 and he had no personal knowledge of the payment and bad to admit this when he was cornered in his cross-examination.
But the petitioner categorically speaks to the fact of payment in his earlier statement Ex. P. 2. Reading the examination-in-chief and Ex. P. 2 together, there can be no doubt that the evidence meant that he was personally aware of the payment. No doubt even the statement Ex. P. 2 was given by him on 22-0-1954 more than three years after the alleged payment on 16-4-1951. It might be that he spoke from recollection even in Ex. P. 2 and realised later that he had made a mistake and that his memory might have been inaccurate. But such a plea was not put forward by him in the Courts below and now rests only on conjecture. He was the best person to explain how and why he felt that he might have made an error in Ex. P-2. But that was not his line of defence and what he tried to do was to resile from Ex, P. 2 altogether.
The gist of his evidence was that both the Cooperative Inspector who recorded Ex. P-2 and the Magistrate who tried C. C. No. 121/55 incorrectly wrote what he said and that he did not make two inconsistent statements at all. In view of this defence, I see no force in the contention that he should have been specifically asked whether he intentionally made two inconsistent statements leading to the conclusion that one of them was false.
9. The conviction is therefore right and cannot be interfered with in revision. But the tactthat the petitioner might have reasonably felt thathe made a mistake in recalling what had happenedseveral years earlier may be properly taken intoconsideration in assessing the punishment. Thefalse evidence was not perhaps wanton and deliberate. He has also undergone one month and oneweek of the sentence. For the reasons stated, Ireduce the punishment to the period already undergone.