M GHANLAVADHANI Vs. B VENKATESWARA RAO

JUDGEMENT

(1.) This revision is filed for challenging the order passed by the learned II Additional Judicial Magistrate of First Class, Eluru, West Godavari district on 31-10-1996 in C.C.No.34/94 on CrI.M.P.No.6445/96.

(2.) The few fects necessary to understand the challenge in revision have to be stated first. The petitioners were A-1 and A-2 respectively in C.C.No.34/94. A complaint was lodged at the instance of first respondent against the petitioners and one other, who was A-3 for offences under Sections 406 and 465 IPC. At the time of taking cognizance of the said complaint, the Court refused to take cognizance of the offence against A-3 and dismissed the complaint against him (A-3) at the threshhold. Later on, a revision was filed against the said dismissal by the first respondent before the learned Sessions Judge, West Godavari at Eluru and the same was numbered as Crl.R.C.No.59/96. While the proceedings thus continued against the present petitioners, a petition was filed by the complainant-first respondent herein under Section 91 of the Code of Criminal Procedure (for short 'the Code') seeking a direction that the Bank officials should produce certain documents which are relevant for the decision of the case. Similarly, one more petition was also filed under Section 319 of the Code by the complainant. That petition came up for hearing on 6-6-1996. The said petition was dismissed by the learned Magistrate, A revision was preferred against this dismissal also. The learned Sessions Judge at Eluru granted interim stay of all the proceedings pending in C.C.No.34/94 before the learned Magistrate. The stay order was passed on 25-9-1996. In spite of this stay order, the proceedings in C.C.No.34/94 came up before the learned Magistrate on 26-9-1996. On that day the learned Magistrate dismissed the complaint and discharged the petitioners under Section 245 of the Code observing that there was no evidence produced in support of the complaint for proceeding further with the case. A-1 and A-2, the petitioners herein, were thus discharged. Later on, the complainant filed a petition purporting to be one under Section 362 of the Code on 16-10-1996. It was brought to the notice of the Court that the dismissal order or, the discharge of the accused/ petitioners by order dated 26-9-1996, was illegal, as the matter was already stayed and, therefore, the case should be restored, and should be continued further according to law.

(3.) The learned Magistrate after hearing both sides on this petition passed the impugned order on 31-10-1996 observing that the complainant had already filed a Memo on 26-9-1996 before the Court to the effect that the proceedings were stayed by the superior Court, but the said Memo was not placed before him by the concerned Clerk. Therefore, the order passed dismissing the complaint and discharging the accused was erroneous and was liable to be set aside due to clerical error. So observing he set aside the order purporting to act under Section 362 of the Code and restored the case - C.C.No.34 of 1994 to the file. It is this order, which is challenged now.