SUBBARAYAN CHETTIAR NARAYANAN CHETTIAR Vs. VARIED PUTHIYA VEETIAL CHEEKU
HIGH COURT OF KERALA
SUBBARAYAN CHETTIAR, NARAYANAN CHETTIAR
VARIED PUTHIYA VEETIAL CHEEKU
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(1.)This Civil Miscellaneous Appeal is filed by the plaintiff in O. S. 173 of 1952 of the Ernakulam District Court against the order of the District Judge, rejecting the prayer of the appellant to prosecute the defendants who are alleged to have fabricated Ext. I letter which was used as a genuine document.
(2.)The suit was for recovery of the amount due under a promissory note executed by defendants 1 and 2 in favour of the plaintiff. The defendants contended that the pro note was executed as a collateral security and produced Ext. 1 letter by which the plaintiff agreed to receive payment only when 120 bundles of tobacco were delivered by the plaintiff to the defendants. The plaintiff repudiates Ext. I, as spurious. The District Judge and in appeal the High Court found Ext. I to be not genuine. Though the District Judge & the appellate Court never thought it necessary to take any criminal action against the defendants the plaintiff applied for permission to get the defendants prosecuted under S.193, 463 and 471 ,I P.C. The learned District Judge refused to act under S.476 Criminal Procedure Code as he found it unnecessary in the public interests to rake up a matter that was finally disposed of on 2-8-1960 by the High Court.
(3.)The appeal has to fail on the short ground that S.479A Criminal Procedure Code is a bar to proceedings under S.476 being taken. In a similar case one of us relying on the Supreme Court decision in Hussain Bholu v. State of Maharashtra where Their Lordships observed that ..."the view that the provisions of S.476 to 479 are totally excluded where an offence is of the kind specified in S.479A(1) is correct", has decided that S.479A(6) is an absolute bar to the District Judge entertaining a petition under S.476 when the court which heard the case in which the perjury is alleged to have been committed takes no action against the offender simultaneously with the delivery of the judgment. Vide Mahalinga Bhatta v. Venkataramana Bhatta 1963 KLT 1 .
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