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Judgment
Jaganmohan Reddy, J.—This is an appeal by the complainant u/s 417(3) Cr. P. C. against the order of acquittal. The first point urged on behalf of complainant''s advocate is that having regard to the provisions of Section 417(3) Cr. P. C. the complainant ought to have been given notice of the appeal of the "accused and the omission to do so is not a proper exercise of jurisdiction by the Sessions Judge and his judgment of acquittal therefore, cannot stand.
This argument, must be rejected summarily because u/s 422 Cr. P. C. on appeal being filed, the appellant as well as such officer or officers as the State may in that behalf appoint should be given notice of the date and hearing of the appeal. It is also enjoined that the grounds of appeal should be furnished. There is not a word in that section which makes it necessary to give notice to the complainant. Once the complaint has ended in a conviction of the accused it is the State that conies into the picture and it is the State that has to be given notice to sustain the conviction.
It is true that if the complaint after due enquiry ends in an acquittal, the complainant has been given a right to appeal. But that does not justify the contention that in an appeal from a conviction the complainant has a right to be given notice. To admit that in all cases of complaints ending in convictions, the complainant should be given notice of the appeal would be to convert criminal proceedings into persecutions or to use the language of Bose J. in AIR 1937 123 (Nagpur) :
"It would be unfortunate to allow private passions and prejudices to creep into the conduct of criminal trial when it can be avoided."
In that very case this point was urged and rejected. Once u/s 422 Cr. P. C. notice has been given to the State, the complainant has no right of audience and he ought not to be permitted to serve his own private ends.
As far as merit is concerned, I have no hesitation in holding that the acquittal is right. The accused admittedly has been having dealings with the complainant for a period of two years and has been paying for the goods he purchased from the complainant. The evidence also discloses that even after the date of the alleged purchase on 24-1-1957 the accused has paid as much as Rs. 1,000/- to other dealers, vide Ex. D-1, D-4, D-8, D-11, D-12 etc.
No one who wanted to avoid paying for the goods purchased or who was in impecunious circumstances at the time when he entered into the transaction would have paid Rs. 1000/-. Learned Advocate for the complainant says that subsequent conduct must be looked into. The subsequent conduct referred to is that the accused absconded five days after the transaction. The Magistrate appears to pay a great deal of attention to this evidence and the entire case against the accused was determined on this solitary fact.
When the accused was asked as to why he had closed his shop and gone away his answer was that his mother was suddenly taken ill and he had to go away and that his mother subsequently died. There is nothing to show that his statement of the accused is wrong. Learned Advocate says that it was for the accused to show that the mother had not died or that she had not become old. I fail to understand how the accused could be called upon to discharge an onus resting on the prosecution.
It is for the prosecution to have shown clinchingly that at the time the accused entered into the transaction, he had no intention to pay the money and that he was actuated by a dishonest Intention to cheat the complainant. The complainant has not established such an intention on the part of the accused at the time when he purchased the five rice bags. On the other hand, the accused has shown that he had intention to pay and bad in fact paid other merchants after he entered into this transaction. In this view of the evidence, there is no merit in this appeal and it is accordingly dismissed.