K.S. Menon, J.
1. This is an application to set aside the order of the District Judge of Madura confirming that of the District Munsif of Tirumangalam, laying a complaint against the petitioners for offences under Sections 467 and 114 Indian Penal Code and also under Section 193 Indian Penal Code.
2. A suit was brought on a promissory note the genuineness of which was denied by the defendant. The names of the petitioners appear therein as attesting witnesses and they gave evidence in support of that promissory note.
3. The Court found the promissory note to be not genuine and has laid a complaint against the plaintiff, the petitioners and two others, who swore in support of an earlier promissory note. The learned District Judge upheld the order in respect of the plaintiff and the petitioners, and allowed the appeal of the other two persons.
4. The question is, whether a complaint, in the circumstances, is competent against the petitioners in respect of offences punishable under Sections 467 and 114 Indian Penal Code, and whether it is necessary and expedient in the interests of justice to order their prosecution for an offence under Section 193 Indian Penal Code.
5. As petitioners were not parties to the suit, but were only witnesses, a complaint cannot be made against them under the provisions of Section 476 Criminal Procedure Code, as was held in numerous decisions of this Court. Nalluri Chenchiah, In re : (1919)36MLJ296 etc. The order of the learned District Judge cannot, therefore, be upheld to this extent.
6. They are next alleged to have committed perjury, in swearing that the promissory note in question was genuine and that they attested it. No doubt that document has been found to be not genuine, but I am not at all satisfied that it is necessary or expedient in the interests of justice to prosecute them; or that there is any reasonable probability of the prosecution ending in a conviction. It is more or less a matter of oath against oath; and the record of the evidence they gave consists of merely 'notes of evidence', as it was a suit of Small Cause nature. With regard to the other two petitioners (who were respondents 4 and 5) the learned District Judge himself thought it inexpedient to prosecute them for perjury. Having regard to all these circumstances, I am of the opinion that it is not necessary to proceed with the complaint against the petitioners.
7. The order of the Lower Court so far as it is against the petitioners, is set aside and the complaint against them is directed to be withdrawn.