Revision at the instance of the aggrieved party is not maintainable if the appeal is time-barred, as Section 439 (5), Cr. P. C., bars revision proceedings at the instance of a party who could have appealed but did not.

G. K. MISRA, J.

( 1 ) THE petitioner has been convicted under Section 420, I. P. C. , and sentenced to undergo R. I. for 3 months and to pay a fine of Rs. 100, in default to R. I. for 2 months. Petitioner Sukadeb Barik and the complainant-opposite party Panchanan barik are residents of village Andola. Prosecution case is that the petitioner contracted to sell 5 decimals of his Gharabari (homstead) to the opposite party for rs. 376. The entire consideration was paid on 21-6-64. Next day the petitioner executed the sale-deed (Ex. 1) and presented it for registration before the Sub-registrar at Chandhali. Registration was effected. Without handing over the registration ticket to the complainant for taking delivery of the sale-deed, the petitioner left the place surreptitiously. Later on in the village the petitioner declared that the properly, covered by Ex. 1, belongs to his wife. Prosecution case is that the petitioner deceived the opposite party by fraudulently inducing him to pay Rs. 376. Though the property converted does not belong to him (the petitioner) but belongs to his wife and an offence under Section 420, I. P. C. , was thereby committed. The defence is that there was an agreement that the petitioner would give one decimal of his homstead for six decimals of wet land, to be given by Panchanan, by way of exchange. Taking advantage of the illiteracy of the petitioner , the complainant with the help of his henchmen and stooges got the sale-deed (Ex. 1)executed. No consideration was paid on the previous day. The petitioner came to know of the fraud perpetrated by the complainant after registration and accordingly he did not hand over the registration ticket. The sale-deed was not rend over and explained to him.

( 2 ) THE learned Magistrate accepted the prosecution case. The learned Sessions judge held that the prosecution failed to establish its case beyond reasonable doubt and that no offence had been committed. He however, dismissed the appeal on the finding that it was barred by limitation. Against the order of the learned sessions Judge confirming the order of conviction, the criminal Revision has been filed.

( 3 ) THE learned Sessions Judge disbelieved the prosecution case that Rs. 375 had been paid on a day prior to the registration of the sale-deed Ex. 1. Mr. Asok Das challenged the finding. After going through the evidence and reasonings of the learned Sessions Judge I am satisfied that he came to the correct conclusion. It is somewhat surprising that Rs. 375 was paid without a receipt being taken in token of payment. There was no necessity to pay the entire sum a day before. If cash was available, the entire amount could have been paid before the sub-registrar. Panchanan seems to be a man of no substance. He had sold away his entire homestead with other agricultural land only a year before. He works in Calcutta major part of the year. Whenever he comes to the village, he works as a day labourer. For all these reasons, the finding that consideration had not been paid appears to be sound. Admittedly the disputed land stands in the name of the wife of the petitioner. It is somewhat suprising that the complainant was anxious to purchase the land without making any investigation into the title of the petitioner. The petitioner is an illiterate person. The sale-deed (Ex. 1) shows that he put his thumb impression on the sale-deed. In the circumstances, heavy onus lies on the prosecution to prove that the document was read over and explained to the executant. Taking all these circumstances into consideration, the case appears to be one of- civil nature and the learned Sessions Judge rightly observed that the defence version that the agreement was that the petitioner would give one decimal of his homestead for some agricultural land of the opposite party may be true. The complainant should have been well advised to file a civil suit for declaration of his title and recovery of possession, if in fact title passed to hi