S. 476, Cr. P.C. is not excluded by S. 479-A, Cr. P.C., and proceedings under Ss. 476 to 479, Cr. P.C. can be initiated even if proceedings under S. 479-A, Cr. P.C. cannot be taken.

ORDER :- The petitioner was a Sub Inspector of Police in Veerapandi in about 1959. There was a robbery in his house and gold jewels of his wife had been snatched away. One Mookan Servai, suspected of this crime, was tried for the offence; but be was acquitted. During the investigation of the case by the petitioner, he had recovered two gold ingots from Guruswami Asari (P.W. 1) and Ponnukamakshi Asari. They had claimed the ingots as belonging to them. But when the petitioner produced them in Court after seizure on 6-10-1959, he was allowed to keep them on his undertaking to produce them in Court when called upon to do so. After the acquittal of Mockan Servai, the trial Court ordered the jewels to be retained by the petitioner. But, on appeal, the learned Sessions Judge reversed the said order and directed the trial Court to hold a fresh enquiry as to the ownership of the ingots. The Magistrate then directed the petitioner to produce the ingots in Court and he produced them after taking time twice. An order was ultimately passed by the learned Magistrate directing return of the ingots to P.W. 1 and Ponnukamakshi. P.W. 1 took back M.O. 1 from Court on 15-3-1961. M.O. 2 was kept in Court custody as Ponnukamakshi had died. On getting back M.O. 1, P.W. 1 got it tested in the Court verandah when it was discovered that the ingot was of brass and not of gold. P.W. 1 then made a report about it to the learned Magistrate who subsequently got M.O. 2 also tested and found the same to be of brass.

2. The cases now before us arise out of a complaint filed by the Court under S. 193, I.P.C. and a police charge under Section 420, I.P.C. against the petitioner. In the course of the enquiry before the learned Magistrate, the petitioner had given evidence that the ingots M.Os. 1 and 2 were of gold, and his defence against the charges under Ss. 193 and 420, I.P.C. was that the ingots produced by him in Court were the same as seized by, and allowed to be retained with him. Both the trial Court and the appellate Court have found this case to be untenable. If, as found by the Courts below M.Os. 1 and 2 were not the ingots seized and allowed to be retained by the petitioner there can be little doubt about the sustain ability of his conviction either under S. 417 or under Section 193, I.P.C. for the reason that he had stated on oath that M.Os. 1 and 2 were the ingots he received from Court on 6-10-1959. The substantial question therefore is whether M.Os. 1 and 2 were the ingots received by him. One notable circumstance in this regard is that until the investigation of these cases, there was no whisper by the petitioner that the ingots seized and allowed to be retained by him were not gold ingots.

M.Os. 1 and 2 weighed 7- and 41/2 sovereigns respectively. The petitioner took delivery of them after executing a bond for Rs. 1000 which would indicate, that at the time he had satisfied himself that the ingots received by him were of gold. Another clinching circumstance is that after the case against Mookan Servai was disposed of, and the bond was cancelled allowing the petitioner to retain the ingots, he had sold gold ingots of almost the same weight to P.W. 6 at Madurai, and with the sale price had purchased other jewels from, the shop of P.W. 6. At no stage in tie proceedings commencing from the seizure of the ingots from P.W. 1 and Ponnukamakshi Asari had any attempt been made to test the quality of the metal. The fact that the ingots were of gold appears to have been taken for granted even when the learned magistrate considered the question as to whom they were to be restored, pursuant to the order of the sessions judge. After orders were passed for their return, P.W. 1 appears to have suspected that M.Os. 1 and 2 were not gold. He got M.O. 1 tested on this suspicion and found the same to be gold guilted brass. Subsequently, the Court on its motion tested M.O. 2 with the same result.

The non-examination of the metal at the intermediate stages docs