Kumaraswami Sastri, J.
1. This is an application to revise the order of the Chief Presidency Magistrate discharging the accused under Section 252 of the Criminal Procedure Code.
2. Both the complainant and the accused were diamond merchants, the former carrying on business in Bombay and the latter in Madras. The case for the prosecution is that complainant used to send on approval diamonds to the accused in parcels bearing prices, weights in carats, and numbers, that accused used to communicate his acceptance of the price or make counter offers that in the event of the parties agreeing as to the price the same was paid by the accused either in cash or by means of Hundis according to the terms under which they carried on business, and that the accused got from the complainant four packets of diamonds marked 4695, 4696, 4665 and 4666 which were sent to him at his request, which packets he pledged before any property in them passed to him without the knowledge or consent of the complainant. It is also alleged that the accused was in a hope lessly insolvent condition when he asked for the diamonds and that he asked the complainant to send them to him not for any bona fide purpose of his trade but to raise money thereon for his own benefit and that he was guilty both of criminal breach of trust and of cheating.
3. The Chief Presidency Magistrate was of opinion that no case had been made out which would justify his calling upon the accused to enter upon his defence and discharged him under Section 253, Criminal Procedure Code. He held that it had not been shown that the accused was in insolvent circumstances when he asked the complainant to send him the diamonds and that it had not been proved that the diamonds sent by the complainant had been pledged by the accused. The learned Magistrate also was of opinion that the complainant knew that the accused was dealing with the diamonds sent before prices had been settled and that the complainant with a view to pushing on his trade threw all caution to the winds.
4. A preliminary objection has been taken that the complainant who is an alien enemy now interned has no right to invoke the aid of the court and that the Criminal Revision Petition filed by him ought to be dismissed. No objection was taken in the lower court as to his competence to file the complaint, the objection being raised for the first time when the Criminal Revision Petition was taken up by me for disposal. There is no dispute as to the facts. The complainant who is an enemy subject was carrying on business in Bombay under license both when he filed the complaint in the Presidency Magistrate's Court and the revision petition in the High Court. His license was cancelled by an order of Government dated 8th December 1917 and the business carried on by him was directed to be wound up. On the 5th February 1918 Mr. Mellor as custodian of enemy property applied to the High Court for permission to be brought on record and to continue proceedings in the High Court and permission was granted by Mr. Justice Bakewell on the 8th February 1918.
5. There is so far as I can see nothing to warrant the view that an alien enemy has no right to complain against crimes directed against his person or property or that a subject of His Majesty the King Emperor can with impunity violate the provisions of the Indian Penal Code simply because the offence is committed in respect of an alien enemy. In criminal cases it is the King Emperor who prosecutes in vindication of his peace and though the complainant brings the facts to the cognizance of those charged by the Crown to administer justice, it is the Crown that prosecutes. I do not think that courts exercising Criminal Jurisdiction whether original or appellate can decline to exercise it simply because the offence is committed against the person or property of an alien enemy.
6. So far as Criminal Revision Petitions to the High Court are concerned Sections 487 and 439 of the Criminal Procedure Code empower the High Court to proceed either suo moto or on the facts being brought to its notice by any persons not necessarily the complainant. There is therefore nothing to prevent the High Court from revising the order of the Chief Presidency Magistrate discharging the accused on the application of the custodian of enemy properties where the offence is committed in respect of property which would in law vest in him.
7. It is also clear that the complainant was living and carrying on business in India under a trading license both when he filed the complaint and the criminal revision petition. When an alien enemy resides in the country by license of the King and under his protection he stands on the same footing as an alien friend or an ordinary subject so far as the right of maintaining actions is concerned, the right of suit being incidental to the right of protection. Porter v. Freudenburg (1915) 1 K.B. 857 Volkel v. Botunda Hospital (1914) 2 K.B. (Ir.) 543 Princess of Thurn and Taxis v. Moffit (1915) 1 Ch. D. 58 and Rex v. Vine Street Police State Superintendent Liebman exparte (1916) 1 K.B. 268 are authorities clearly in point. The complaint and revision petition were therefore instituted by a person legally competent to do so.
8. As a criminal revision petition is not in the nature of an appeal which under the Code of Criminal Procedure must necessarily be filed by the accused in the case of a conviction or by the Government in the case of an acquittal and as under Sections 437 and 439 of the Code the High Court can act in revision where facts are brought to its notice by any person and not necessarily by a party to the original proceeding the internment of the complainant after the filing of the criminal revision petitions does not necessarily stay the hands of the High Court, All that was decided in Porter v. Freudenburg (1915) 1 K.B. 857 was that the appeal filed by an alien enemy plaintiff before the war, should be suspended till the restoration of peace. The position of a person who was residing and carrying on business in the country under a license from the crown and so entitled to file a criminal appeal or revision but whose license has been revoked before the appeal or revision petition comes on for trial could not be worse. In any view the revision petition cannot be dismissed as contended for by the Crown Prosecutor and counsel for the accused. It can at the most only be ordered to lie over till the end of the war. For the reasons already given I am of opinion that it is open to the High Court to dispose of the criminal revision petition against the order of discharge on the application of the custodian of enemy property. I overrule the preliminary objection and shall proceed to deal with the case on the merits.
9. As the learned Chief Presidency Magistrate heard all the evidence adduced by the prosecution and has written an order giving his reasons for not acting on the prosecution evidence oral and documentary, the order though not technically an order of acquittal should in my opinion be dealt with on the same principles as would be applied to a case of acquittal. There is in my opinion very little difference in substance between the case of a person who has been discharged after all the prosecution evidence has been taken and weighed by the Magistrate and that of a person who is acquitted after a charge has been framed. In the former case the Magistrate considers that the prosecution evidence is so weak that there is nothing for the accused to meet and in the latter case the evidence though sufficiently strong to call upon the accused to meet it has in the opinion of the Magistrate been met by the defence. There is no reason why different tests should be applied in revision or why an accused against whom the prosecution evidence is weak should be in a worse position than one against whom it is strong enough to warrant a charge being framed. The observations in Emperor v. Kiru (1911) Cri L.J. 364 are in point.
10. In the case of revision petitions against orders of acquittal courts have been either unwilling or very reluctant to interfere in revision at the instance of private parties. Thandavan v. Perianna I.L.R. (1890) Mad. 363 Heerabai v. Framji Bhikaji I.L.R. (1890) Bom. 349 In the matter of Sheik Amin-ud-din I.L.R. (1902) A 346, Emperor v. Madar Baksh I.L.R. (1902) A. 128 and Foujdar Thakur v. Kasi Chaudhuri 19 C.W.N. 184. It is well settled that Courts will not interfere when there is no clear error or defect in the proceedings of the lower courts which has resulted in grave injustice but the question is merely one as to appreciation of doubtful evidence. I need only refer to Sinnu Goundan v. Emperor : (1914)26MLJ160 , Emperor v. Madar Baksh I.L.R. (1902) A. 128, Foujdar Thakur v. Kasi Chaudhuri 19 C.W.N. 184, In re Natesa Padayachi : AIR1915Mad1143 , Emperor v. Lakshminarayan Iyer (1915) 5 Cr. L.R. 78, The Ahmedabad Municipality v. Maganlal Khushaldas 9 Bom. L.R. 156 and Vellayan Ambalan v. Solai Servai : (1915)28MLJ692 . I am of opinion that a rule equally strict should be applied to cases of revision against order of discharge based on a consideration of all the prosecution evidence when no evidence has been shut out and there is no illegality or irregularity in procedure adopted by the Court.
11. Applying these considerations to the facts of the present case I do not think I ought to interfere with the order of discharge. So far as the charge of cheating is concerned I do not think it has been satisfactorily established before the Magistrate that the accused when he asked the complainant to send the diamonds was unable to pay for them. The arrangement between the parties was, that he was to have credit for 7,000 and that he was to pay Rs. 6,000 a week. The complainant admits that till February 1917 the accused was making payments regularly and that in February complainant raised accused's credit to 7,000 and gave him additional facilities for payment. It is not alleged that when the accused asked the complainant to send him the parcels which formed the subject-matter of the complaint he had dishonoured any of the hundies drawn on him by the complainant. The fact that he was in financial difficulties in July would not necessarily show any dishonest intention in April especially as the accused to the knowledge of the complainant used to sell diamonds to other parties and remit moneys out of the sale proceeds when the hundies fell due.
12. As regards the charge of criminal misappropriation in respect of parcels 4695 and 4696 these diamonds are melee or small diamonds. There is nothing particular by which they can be identified. It is difficult from the complainants' evidence or, the documents filed by him to arrive at any date from which it can be reasonably certain that the diamonds pledged by the accused are the diamonds which were sent by the complainant in packets numbered 4695 and 4696. I attach very little importance to the evidence adduced by the complainant or to the accused having orally admitted his having pledged the diamonds. Such evidence is easy to adduce and difficult to rebut. I agree with the Chief Presidency Magistrate that no prima facie case has been made out as regards parcels 4695 and 4606.
13. Turning to parcels 4665 and 4666 the learned Magistrate though admitting that the case was somewhat stronger was not prepared to accept the evidence of the complainant that the parcels pledged with P.W. 1 were the diamonds sent by him. He observes ' In Court P.W. 2 (the complainant) has been put to several tests to see if he can identify the stones now before the Court as those described in his mixture book but I am bound to say that though he has made a good bid for it he has failed to satisfy me that he can with absolute certainty describe his own diamonds and even the prosecution does not press this point in the identification of stones.' The Magistrate also believed that the letters of hypothecation were genuine and was of opinion that there was a difference between the number and weight of the stones sent by the complainant and those pledged by the accused. The case as regards those stones was fully argued by both sides, and giving it my best considerations I cannot say that there is any such error or defect in this judgment of the Magistrate as would justify nay in setting aside the discharge and sending the ease back for enquiry. If I had to try the case as an Original Court I would probably have on the materials placed before me framed a charge and put the accused on his defence but the question is whether, sitting in revision I would be justified in setting aside the order of the trial Judge who had the advantage of seeing the demeanour of the witnesses and who was not favourably impressed with the complainant's evidence. As a civil suit will probably be filed I do not think it expedient to go into the facts in detail or give my opinion as to the various points that have been urged. It is sufficient for me to say that the present case has not satisfied the requisites laid down by the cases above referred to and I do not think it proper to re-open the enquiry.
14. I therefore dismiss the petition. The diamonds which are with the pledges will be kept by them on the same terms as at present till 15th July.