- (1.) Gondimal Appellant had brouht a money suit against Baburam and others of Raman on the basis of a pronote. The pronote was attested by Asa Ram respondent and he was examined as a Plaintiff's witness, during ex parte proceedings against the defendants. He was, however, not called as a witness when the ex parte proceedings were set aside and the case proceeded in the presence of the defendants. The trial Court decreed the suit. On defendants' appeal the learned District Judge called Asa Ram and also the other marginal witness Jagat Prakash, neither of whom had been examined by the Plaintiff, and recorded their statements as Court witnesses. Both of them averred that no cash payment was made in their presence at the time of execution of the document. Placing reliance on their testimony and other facts of the case, significance of which was that no mention of cash payment having been made to the defendants was to be found in the account books of the Plaintiff and it was admitted that a much larger amount was previously due to him (the Plaintiff) from the defendants, the learned District Judge accepted the appeal and dismissed the suit Gondimal thereafter presented an application requesting the District Judge to start proceedings under Section 193, I.P.C., against Asaram because of the two contradictory statements made by him. It was alleged that Asaram when he was previously examined by the Plaintiff stated that the pronote was for cash consideration which was paid in his presence. In the statement recorded by the District Judge as a Court witness he, however, deposed that the consideration of the pronote consisted of some prior debt due to the Plaintiff from its executants. When this application came up for hearing before the District Judge on 15-3-1952, Shri Chiranji Lal, the learned Counsel for the applicant, represented that his client no longer wanted the case to proceed and prayed for the matter to be dropped. The learned District Judge, however, did not accept the prayer and continued the proceedings suo motu. But finally he being of the view that Asaram in his subsequent deposition had reverted to truth did not deem it proper or necessary to prosecute him under Section 193, I.P.C., on the basis of the two contradictory statements and ordered the proceedings to be dropped. Gondimal has preferred this appeal against the said order of the District Judge.
(2.) Gondimal, as indicated by the statement of his counsel, had taken his hands off and withdrawn from the application and thereafter the Court started and carried on an inquiry under Section 476, Code of Criminal Procedure, suo motu. If the Court finally decided against making a complaint under Section 193, I.P.C, I do not think Gondimal had a right of appeal to this Court under Section 476B, Code of Criminal Procedure That section gives right of appeal to an applicant against refusal of Court to make a complaint and not against dismissal of the proceedings started by the Court itself. Otherwise also I do not see any force in this appeal. The second statement of Asaram as a Court witness was accepted as correct and was relied upon by the Court as representing true facts. The mere fact that Asaram had made a somewhat different statement at an earlier stage of the case, which he had tried to explain as well, does not necessarily mean that he should have been prosecuted for perjury. If a person makes two contradictory statements and the Court finds that he was-in fact reverted to truth in the later statement it is not always desirable that he should be-prosecuted for perjury. In view of all the facts of the case I do not think the learned District Judge acted indiscreetly or injudiciously in declining to take any further action in the proceedings started by him under Section 476, Cr.P.C This appeal is consequently dismissed.;