D. Falshaw, J.
1. The circumstances under which this revision petition filed by Gokal Chand has arisen are as follows. Gokal Chand petitioner alleged that he had lent Rs. 4,000/- to Bhagwan Das respondent on a pronote dated 15-7-1949. In October 1930 Bhagwan Das asked Gokal Chand for the loan of a further sum of Rs. 6,000/-. He was shown three shops in Lakkar Bazar, Simla, and on 10-10-1950 Bhagwan Das executed a mortgage deed far Rs. 11,000/- in favour of Gokal Chand regarding three shops, this deed being registered on the following day when Rs. 6,000/- were paid in the presence of the Sub-Registrar.
2. Gokal Chand alleged that at the time of this transaction Bhagwan Das and his father Maghi Ram represented to him that the shops were the exclusive property of Bhagwan Das and that they were free from all encumbrance. Gokal Chand later discovered that in fact the shops were the joint family property of the father and son, and that they had previously been mortgaged by a registered deal to a third party. Gokal Chand instituted a complaint against the father and son in June 1952 which was dismissed on 25-7-1952, and the second complaint on the same lines filed on the 12th of August was dismissed on 29-8-1952, After that Gokal Chand waited for more than a year and then filed the complaint out of which this revision petition has arisen on 24-10-1953, Maghi Ram was also made an accused in the case but he was discharged by the trial Magistrate. Bhagwan Das, however, was convicted under Section 420, Indian Penal Code, and sentenced to six months' rigorous imprisonment and a fine of Rs. 1,000/- or in default six months' further imprisonment on 15-11-1954.
3. Bhagwan Das filed an appeal in the Court of Sessions Judge at Ambala who acquitted him by his order dated 3-4-1956. The revision petition was filed on 19-6-1936 in which it was fought that the appellate judgment of acquittal should be set aside and the order of the trial Magistrate restored.
4. When this petition came up for hearing before Kapur J, on 16-11-1956, the objection was raised that a revision petition filed by a private complainant against an order of acquittal could not be entertained in view of the provisions of Section 417 (3) of the Criminal Procedure Code, together with the provisions of Section 439 (5). Section 417 deals with appeals against acquittals and Sub-section (3) which came into force as from 1-1-1956, reads:
'If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it be the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court',
Sub-section (4) provides that no application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. Section 439 (5), which is not a recent amendment reads:
'Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed'.
The learned Judge was of the opinion that the question whether a revision petition by private complainant against an order of acquittal was barred by Section 439 (5) was of sufficient importance and difficulty to warrant reference to a Division Bench, and the case has accordingly come before us.
5. It has been argued by the learned counsel for the petitioner that the words 'Whore under this Code an appeal lies' in Section 439 (5) must mean where an appeal lies as of right, and that a revision petition is not barred where an order is only appealable by special leave.
6. It will be remembered that before Section 417 was amended an appeal against an order of acquittal could only be filed by the State, but the recent amendment has extended the privilege to a private complainant to apply for leave to appeal against an order of acquittal, and in my opinion the mere fact that such special leave is necessary before an appeal of this kind can be filed does not make it any less an appeal which lies under the Code. It is to be presumed that the Legislature was aware of the provisions of Section 439 (5) and 1 should have thought that if the appeals contemplated under that section were to be limited to appeals which could be filed as of right, the necessary amendment should have been made in that subsection so as to make this perfectly clear. It would in fact appear in the present case that the petition was brought as a revision petition because it was only fried after the period of limitation of sixty days provided in Section 417 (4) had already expired.
7. There appears to be only one reported case on this point Chairman, Village Panchayat, Nagathihalli v. N. Thimmasetty Gowda, AIR 1956 Mys 62 (A), and in that case Padmanabhiah J. has taken the view that because an appeal against an order of acquittal at the instance of a private complainant is provided by Section 417 (3) and no appeal was preferred, Section 439 (5) was a bar to the complainant's having recourse to a revision petition. In my opinion this is a correct view and I would accordingly held that the present revision petition cannot proceed, nor can it be treated as a petition under Section 417 (3) in view of the fact that it was filed after the period of limitation had expired.
8. In any case there docs not seem to be any ground for interfering in revision against the order of acquittal. As I have said this was the third of the three complaints filed regarding the same matter, and even the first of these complaints was not filed until nearly two years after the alleged misrepresentation had taken place. It has been brought out in cross-examination of Gokal Chand petitioner that he became aware of the deception within about ten days, and also that he has held a money-lender's licence for twenty years, and therefore he presumably is quite experienced, and it seems impossible to me that he could have been deceived by a representation that some shops which stood in the name of the family firm were the sole property of the son whose father was present. Moreover, a man of experience in lending money could hardly have been unaware that in order to find whether a particular property had been mortgaged before all he had to do was to make enquiries at the office of the Sub-Registrar, and on a point of this kind he need not rely on the assurances of any parry to the transaction. In the circumstances the view of the learned Sessions Judge cannot possibly be regarded as perverse, and only in the most glaring cases of injustice would this Court interfere in revision at the instance of a private person against an order of acquittal. I would accordingly dismiss the petition.
G.D. Khosla, J.
9. I agree.