Section 439 (5) of the Cr. P. C. is a complete bar to entertain a revision petition at the instance of the complainant who has not filed an appeal provided under Section 417 (3) against an order of acquittal.

R. K. DAS, J.

( 1 ) THIS is a complainant's petition directed against an order of acquittal passed by the Additional District Magistrate (Judicial), Cuttack, setting aside the order of conviction of the opposite party under Section 323, I. P. C. passed by the magistrate First Class, Kendrapara.

( 2 ) THE prosecution case is that the villagers of the complainant purchased a radio from out of the common fund kept in the custody of the accused. When they asked the accused to render account of the money kept at his disposal, he refused to do so and was about to take away the radio. When the complainant prevented him the accused assaulted the complainant. The complainant filed a complaint and the accused was sommoned to stand a trial for an offence under Section 323, I. P. C.

( 3 ) THE accused denied the charge and pleaded that the case had been falsely instituted at the instance of one Babaji Das against whom the accused had made a station diary entry on the date of occurrence.

( 4 ) IN support of the prosecution story some witnesses were examined and a medical certificate in support of the existence of some injuries on the person of the complainant was also filed. The learned Magistrate convicted the accused under section 323, I. P. C. and sentenced him to pay a fine of Rs. 30/ -. On appeal the order of conviction and sentence was set aside and the accused was acquitted. It is against this order of acquittal the present revision has been filed.

( 5 ) MR. Ranjit Mohanty, learned counsel for the petitioner, contended that the order of the learned appellate Court is without jurisdiction as due notice of the appeal was not served on the complainant and also on the State Government as required under section 422, Cr. P. C. Section 422 runs thus:

"if the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal,. . . . . "

( 6 ) IT appears from the record that the notice of the appeal was duly served on the complainant and the accused was present on the date of hearing to proceed with the appeal. The complainant did not appear either in person or through counsel. Mr. Mohanty contended that that was not sufficient and the notice should also have been given to "such officer as the State Government may appoint in this behalf as prescribed in the aforesaid section. He, however, was unable to show if any such officer has been appointed by the State Government in this behalf and if no such notice was served upon him. This is a private complaint case in which the state is not interested. The complainant after having received the notice himself cannot now take the plea that the learned appellate court could not proceed with the appeal without notice to any officer of the State Government. In any event, the non-service of such notice, does not affect him as it was open to him to appear and oppose the appeal.

( 7 ) MR. Mohanty next contended that on merit, the learned appellate Court was not justified in dismissing (allowing?) the appeal. According to him the appellate court has not correctly appreciated the evidence adduced on behalf of the complainant. The main ground on which the learned appellate Court set aside the order of conviction is that the complainant and his witnesses were admittedly not in good terms with the accused, and there is no independent corroboration of the testimony of P. W. 1. Nothing has been shown to justify the finding of the appellate court to be erroneous and on that ground alone the petition is liable to be rejected.

( 8 ) THERE is another bar to entertain this revision. Section 439 (5), Cr. P. C. provides that where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertaine