Judgment S.P.Singh, J. 1. This is an appeal by special leave under Sec. 417(3) of the Code of Criminal Procedure by one Kartar Singh, against the order of acquittal dated the 29th March, 1961, passed by the Assistant Sessions Judge of Patna in favour of respondents 1 to 5 in a case under Sec. 420, Indian Penal Code. 2. Mr. N.C. Ghose appearing on behalf of the respondents has raised a preliminary objection regarding the maintainability of this appeal on the ground that the case out of which this appeal arises was not instituted upon a complaint. On merits also he says that the appellant has no case. 3. In order to appreciate the points raised on behalf of the respondents, it is necessary to state a few facts, which are these:- - 4 The appellant, Kartar Singh, filed a petition on complaint before the Subdivisional Magistrate, Patna City, on the 2nd February, 1960, against respondents 1 to 4, who are brothers and also against respondent No. 3, who is a broker, alleging that they had cheated him in the matter of the sale of a house known as Yadav Market situate in Patna City. The negotiation for the sale of this house took place between the parties through respondent No. 5, Sahur Mian, and the price was fixed at Rs. 28,000/-. A Baibeyana deed was also executed on 2-7-59 (Ext. 2) and a sum of Rs. 500.00 was paid by the appellant to respondents 1 to 4 by way of earnest money. The allegation is that a few days later the appellant came to know that two sale deeds and two mortgage bonds had been executed by respondents 1 to 4 in respect of this very house. The appellant thereafter apprised the respondents of this fact and wanted to know whether the documents had affected their title to the house under sale. He, however, learnt from them that three of these transactions were merely Farzi and only one mortgage bond, which had been executed for a sum of Rs. 7,000.00 was a genuine transaction. The respondents, however, agreed that out of the consideration, the appellant could keep back a sum of Rs. 7000.00 to redeem the mortgage in question. After this, the sale deed (Ext. (blurred)) was executed on 30th August, 1959, containing a recital of this fact as we. 7,000.00 was a genuine transaction. The respondents, however, agreed that out of the consideration, the appellant could keep back a sum of Rs. 7000.00 to redeem the mortgage in question. After this, the sale deed (Ext. (blurred)) was executed on 30th August, 1959, containing a recital of this fact as we. It was further mentioned in this sale deed that the property in question was free from other encumbrances. According to the appellant, a few months later no learnt that three execution cases were pending in different Courts against respondents 1 to 4 and that the house in question had been attached in those execution proceedings. Ultimately, in order to save the house from sale in the aforesaid execution proceedings, he had to pay a sum of Rs. 14,600.00 and odd to the decree-holders and he asked the respondents to make good the loss suffered by him, on this account, but they took no notice of it; rather they jeered at him. The appellant then filed a petition of complaint before the Subdivisional Magistrate, Patna City, on the 2nd February, 1960, alleging that he had been cheated by the respondents 1 to 5 in this transaction because they dishonestly kept concealed the fact of attachment of the house in question in the execution proceedings. The Subdivisional Magistrate, without examining the appellant on solemn affirmation, forwarded his petition of complaint to the Officer-in-charge of Chawak police station with a direction to institute a case, investigate into the allegation and submit a report. The Officer-in-charge of the police station drew up a first information on the basis of the aforesaid complaint petition which disclosed a case under Section 420 I.P.C. and investigated into the matter and eventually submitted charge-sheet against respondents 1 to 5 on the basis of which the Subdivisional Magistrate, Patna City, took cognizance on 2-4-60 and transferred the case to a Magistrate of the first class for disposal. The learned Magistrate followed the procedure of commitment and committed all the 5 respondents to the Court of session in which a number of witnesses were examined on behalf of the prosecution as also on behalf of the defence and a number of documents were also produced by both the parties. 5. The learned Magistrate followed the procedure of commitment and committed all the 5 respondents to the Court of session in which a number of witnesses were examined on behalf of the prosecution as also on behalf of the defence and a number of documents were also produced by both the parties. 5. The defence, in short, was that no fraud or deception had been practised on the appellant inasmuch as he had full knowledge of the attachment and the execution proceedings at the time of the execution of the sale deed and it was in consideration of the amount involved in these proceedings that the price of the house was fixed at a lower amount and it was sold for that amount even though it was worth Rs. 40,000.00 and thereby sufficient sum of money was left in the hand of the appellant to pay off the decree-holders. 6. The learned Assistant Sessions Judge, before whom the trial was held, came to the finding that the house in question was really worth Rs. 40,0007- and that the appellant had knowledge of the execution proceedings and as such the respondents did not intend to cheat him. Accordingly, he passed an order of acquittal in favour or the respondents. It is against this order that the present appeal has been preferred by the appellant. 7. Mr. J.K. Prasad appearing for the appellant has urged that the order of acquittal in his case passed by the Court below was not at all justified in view of the evidence adduced by the parties. About the maintainability of the appeal also he says that as this was a case started on the basis of a petition of complaint filed by the appellant, the provision of Sec. 417, Sub-section (3) of the Criminal Procedure Code have been complied with. As already indicated above, Mr. N. C. Ghose has urged, on the other hand, on behalf of the respondents, that this is a case which cannot be deemed to have been instituted upon a complaint as required by Sub-section (3) of Sec. 417 of the Code. His argument is that the appellant no doubt filed a petition of complaint before the Sub-divisional Magistrate, but the latter took no cognizance on the basis of that petition. His argument is that the appellant no doubt filed a petition of complaint before the Sub-divisional Magistrate, but the latter took no cognizance on the basis of that petition. On the other hand, he simply forwarded it to the police with a clear direction that the allegations disclosed a cognizable offence and it was for the- police to institute a case and conduct the investigation. This fact is borne out by the order-sheet of the case also. In view of the facts stated above, I have no doubt to hold that this was not a case instituted upon the petition of complaint filed by the appellant. On the other hand, this was a case which was instituted upon the police report. Without elaborating the point further, I would like to cite two decisions which are quite in point and nave set the matter at rest. The first is a Division Bench case of the Calcutta High Court, viz., Sk. Osman Gani V/s. Baramdeo Singh, AIR 1959 Ca! 145 wherein it has been observes as follows: "The expression any case instituted upon complaint must mean only that class of cases where not merely the complainant comes to Court with a petition of complaint but the magistrate takes cognizance of the offence or offences alleged on the basis of that complaint, when the complainant came to Court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to the police and then on receipt of a report from the police he took cognizance, it cannot be held that the case was one instituted on a complaint within the meaning of the expression in Section 41/(3)". In another Bench decision of this Court in the case of Harbans Singh V/s. Daroga Singh, AIR 1962 Pat 27 their Lordships Sahai and Untwalia JJ., have held as follows: "Where a complaint case is amalgamated with the case instituted on the police charge-sheet, the effect of the order of amalgamation is that the complaint case is merged with the police case. It loses its identity and separate existence as it merges with the police case which retains its identity. Hence the case cannot be said to have been instituted upon complaint within the meaning of Sub-section (3) of Sec. 417". It loses its identity and separate existence as it merges with the police case which retains its identity. Hence the case cannot be said to have been instituted upon complaint within the meaning of Sub-section (3) of Sec. 417". In this case the complainant lodged a first information report before the police and on the basis of that first information report 3 case was started. During the course of investigation, the informant filed a protest petition before the Subdivisional Magistrate and the same was treated as a complaint and the informant was examined on solemn affirmation, but after the receipt of the charge-sheet, the Subdivisional Magistrate ordered amalgamation of the case filed before him with the police case. Their Lordships after examining these and other relevant facts of that case made the aforesaid observation. This case has gone a step further in deciding that even it a case has been instituted on the basis of a complaint petition, it merges with a case if instituted on the basis of a police report on the same allegation. 8 So far as the present case is concerned, it is evident that the appellant was not examined on solemn affirmation nor was a protest petition filed before the subdivisional Magistrate during the course of the investigation conducted by the police. There can be no manner of doubt there-fore, that it was not at ail a case instituted upon complaint. It is a case which was instituted out and out on police report and as such the question of the application of the provisions of Section 417, Sub-section (3) Cr. P.C. does not arise in the present appeal. This appeal is, therefore, incompetent and cannot proceed. The contention of the learned counsel for the respondents on this point, must accordingly be accepted. 9. On merits also I find that the judgment of the Court below cannot be assailed. The learned Assistant Sessions Judge has taken into consideration various factors along with the evidence, direct and circumstantial, as adduced by the parties and has recorded a finding which by no means can be said to be unjustified or against the weight of the evidence. On merits also I find that the judgment of the Court below cannot be assailed. The learned Assistant Sessions Judge has taken into consideration various factors along with the evidence, direct and circumstantial, as adduced by the parties and has recorded a finding which by no means can be said to be unjustified or against the weight of the evidence. On a close examination of the facts and circumstances of the case, it cannot be said, conclusively that the respondents dishonestly concealed the fact of attachment of the house in question in the execution proceeding at the time of the execution of the sale deed in favour of the appellant nor can it be said definitely that the appellant had no knowledge of these proceedings. Thus, regard being had to all these facts and circumstances, I am of the view that this appeal is without merit both in point of law and in point of fact. It is accordingly dismissed.