P.T. Raman Nayar, J.
1. I do not think that this appeal against acquittal, sought to be presented under Section 417(3) of the Cr. P. C., lies. For, although there was a complaint by tne appellant to the Sub-Divisional Magistrate, Tellichery, it was not on that that cognizance was taken. That complaint was merely forwarded to the police for investigation under Section 156(3) of the Code, and it was on the final report made by the police pursuant to that investigation, that the court took cognizance.
Under Section 417(3) it is only where an order of acquittal is passed in a case instituted upon complaint that the complainant may present an appeal against the acquittal. And it seems to me that, both as a matter of plain English (for a case is not instituted in a court until the court takes cognizance of it), as also on a consideration of the scheme of the Code the words 'in any case instituted upon complaint' appearing in the section mean 'in any case of which the court has taken cognizance upon complaint' and, 'complaint' as we learn from Section 4(h) does not include a police report.
The Division Bench rulings in Sk. Osman Gani v. Baramdeo Singh, AIR 1959 Cal 145 and Huchappa v. Venkataswami, (1959) 37 Mys LJ 945 : (AIR 1960 Mys 172) where the matter is considered at length are directly in point and, with great respect, I have little hesitation in following these decisions in preference to the Single Judge ruling in Kshetrabashi v. Lalit Kumar, AIR 1959 Cal 595 where, without reference to the earlier Division Bench ruling, and without any discussion of the several relevant provisions of the Code, it was observed that, because there was a complaint to a magistrate on the basis of which the police made an investigation and submitted a final report, it could safely be concluded that the case was instituted upon complaint.
2. It is argued that special leave to appeal having been already granted under Section 417(3), the competency of the appeal is no longer open to question and must be deemed to have been decided on the application For special leave. For, it is as much a requisite for making such an application as tor presenting the appeal that the case should have been instituted upon complaint. The argument is unacceptable.
It might be that the grant of leave necessarily implies a finding that the case was instituted upon complaint; but then the application for leave is an entirely separate though perhaps ancillary proceeding and a decision there cannot amount to a decision in the appeal that the appeal is competent. A complainant may present an appeal to the High Court under Section 417(3) only if the case was instituted upon camplaint, and therefore it is incumbent on me before hearing the appeal, to decide whether this is such a case.
3. It is also said that the appeal having been already admitted, the question of its competency no longer arises. I have never heard it said that the admission of an appeal precludes a party from questioning, or the court from considering, whether it lies at all. And, in fact, the only judicial order so far passed in this case is that the application for leave to appeal has been granted. Admission, in the technical sense of the term, so far as the practice of this Court is concerned, is in cases like the present, automatic.
4. The application for special leave to appeal was heard and decided by a Single Judge. It is said that this is not among the powers of a Single Judge enumerated in Section 3 of the Kerala High Court Act (5 of 1959) and it really falls within the residual Clause 7, of Section 4 enumerating the powers of a Division Bench. I am at a loss to understand how this argument, even if it is well-founded, can be of any assistance to the appellant; for, if it be that he has not obtained valid leave to appeal, this appeal has to be rejected on that very score.
The application for special leave to appeal has been disposed of and is not before me. Only the appeal is before me. That, there can be no question, I am competent to hear, and if the argument is directed towards talcing the case to a Division Bench, I am afraid I am not persuaded.
5. Mr. Subramonia Iyer for the appellant has canvassed the case on its merits, in an attempt to interfere in revision. Far from being persuaded, the impression that I have been left with is that this is a case where resort has been had to the process of the criminal law to avenge what is, at worst, a mere civil wrong. The charge levelled by the appellant against the three accused persons in the case was one of cheating. It was that through the agency of accused 1 and 2 brokers of Coimbatore, the 3rd accused sold him 356 bales of cotton at the price of Rs. 890 per candy on the false representation that the cotton was of the variety known as Hubli Jaiathar.
On the strength of this representation the appellant paid 80% of the price before taking delivery in accordance with the terms of the contract. Actually, out of these 356 bales only 108 were Hubli Jaiathar (and even that of a quality inferior to the contract quality) while the remaining 250 bales were of the varieties known as Adeni Lakshmi and Annagiri Lakshmi. But, in the entire evidence in the case, both oral and documentary, I find nothing to show that the 3rd accused agreed to supply the appellant with Hubli Jaiathar cotton although it is true enough that the appellant was insisting on that variety.
On the contrary, the variety specified by the 3rd accused in the formal contracts, Exts. P6 to P8, (sent by him for execution by the appellant after he himself had signed them) as also in the invoices, Exts. P14 to P16 (b), under which the cotton was despatched, the variety specified is 'Indian Raw Cotton equal to our sample No. 8729'. It is true that in the letter, Ext. P1 dated 24-5-1956, by which the 1st accused canvassed the order he described this sample (which accompanied the letter) as Hubli Jaiathar.
But when the appellant unilaterally altered the contracts, Exts. P6 to P8, when they came to him for signature, by substituting, 'Hubli Jaiathar', for, 'Indian Raw Cotton', the 2nd accused strongly protested by the letter, Ext. Pll dated 14-6-1956, in which he categorically told the appellant that the sale was by sample and not by description. It was after this categorical statement that, in August 1956, the appellant paid for and took delivery of the cotton.
Doubtless the appellant did reply to Ext, Pll with Ex. P12 dated 18-6-1956 insisting on the supply of Hubli Jaiathar cotton and stating that he was unable to make any change in the contract. But it is to be remembered, that the person seeking a change was the appellant and not the other party, a change against which the 2nd accused protested strongly and in which, there is nothing to show, that any of the accused acquiesced.
Unless therefore it can be shown that the cotton actually supplied was not of the variety or quality of the sealed sample furnished to the appellant, and on the basis of which the contract was concluded there can be no question of the accused having made any false representation. But, of that, there is no evidence whatsoever, and it does not appear that the expert, P.W. 3, who was examined to show (what was indeed not disputed) that the 250 bales in question were Lakshmi and not Jaiathar cotton, compared the cotton actually supplied with the cotton of the sample and found it to be different. Ex. D5 gives the selling price of Indian cotton fixed by the Government, and a reference to that shows that Lakshmi is a variety costlier than Jaiathar.
The basic minimum price of Lakshmi Cotton is Rs. 675 a candy whereas the basic minimum price of Jaiathar cotton is only Rs. 625. The prices vary with the quality and the length of staple but, for cotton of the same specifications, Lakshmi is all through costlier than Jaiathar. No doubt extra superfine Jaitahar cotton of the longest staple is costlier than ordinary quality Lakshmi cotton of the shortest staple. But this only serves to emphasise, what indeed the 2nd accused asserted in Ext. Pll, namely that sale can only be by sample and cannot be by description, unless -- what was not the case here--full specifications are given.
Until it is shown that the cotton actually supplied was of a kind cheaper than the cotton of the sample, the elements of deception and of fraudulent or dishonest inducement, necessary for the offence of cheating would be wanting. And, that, as I have already remarked, was not even attempted by the prosecution in this case.
6. So far as the 2nd accused is concerned it is said that, in reply to the telegram Ext. P37 dated 23-7-1956 (confirmed by the letter Ext. P17 dated 24-7-1956) sent to him by the appellant he sent the reply, Ext. P18, saying that the 356 bales despatched were Hubli Jaiathar equal to the sealed sample. This it is said, was a wilfully false representation on the faith of which the appellant parted with his money. What actually happened was, however, this.
When the telegram Ext. P37 was sent and the reply Ext. P18 given, only the 106 bales of Hubli Jaiathar cotton had been shipped from Bombay. (The 356 bales of cotton were shipped from Bombay to Cochin in two consignments, and were railed from Cochin to Cannanor where the appellant took delivery. But Exts. P37 and P17 indicated that the whole of the cotton had arrived at Cannanore, and the 2nd accused's explanation with reference to his reply, Ext. P18, is that it was based on information given to him by his clearing agent, one Aaron at Cochin.
In fact the only cotton that had been despatched from Bombay by then was the 106 bales of Hubli Jaiathar cotton, and hence the statement in Ext. P18 that the cotton despatched was Hubli Jaiathar was true although the quantity mentioned, namely, 356 bales, was incorrect, the incorrect statement being In fact, based on information supplied by the appellant Himself.
I am in complete agreement with the learned Magistrate that the explanation offered by the 2nd accused, If indeed an explanation was necessary, is reasonable and acceptable, and to say that this explanation should have been rejected and the 2nd accused found to have made a false representation, because he did not examine Aaron or prove the communication he received from Aaron, is, as pointed out in Sudhdeo v. State of Bihar, (S) AIR 1957 SC 466, to place the burden where it does not lie.
7. I dismiss the appeal.