JUDGMENT : A. Pasayat, J. - Petitioner challenges the order passed by the learned Judicial Magistrate, First Class, Cuttack holding that the accused persons opposite parties were not to be tried on the basis of a complaint which according to him was subsequent complaint, and there was discharge or acquittal on merit in respect of the earlier complaint. 2. At the outset I must indicate that this case is a classic example of confusion and non-application of mind and amply demonstrates casual and apathetic manner of maintenance of records in the Courts below. A brief conspectus of the factual antecedents will bear testimony to my above observation. 3. The undisputed facts are that the Petitioner filed a complaint against the opposite parties on 20.5.1978 in the Court of Sub-Divisional Judicial Magistrate, Sadar, Cuttack which was numbered as I.C.C. No. 271 of 1978: The complaint was examined on the said date and cognizance was taken against the opposite parties with a direction to them to appear on 23.6.1978 on 31.8.1978 accused persons Nos. 2 and 4 (i.e. opp. party Nos. 2 and 4 in the present revision petition) appeared and were released on bail and the matter was directed to be put up on 5.10.1978 awaiting the service return against the other accused persons. On 23.10.1978 all the accused persons appeared and were represented through their lawyer and the matter was directed to be put up on 16.11.1978 for adducing evidence. The matter was further adjourned to 30.11.1978. Since no witness on behalf of the complaint was present on that date the matter was adjourned to 12.12.1978 on the basis of a petition filed by the complaint. It was indicated in the order that the complainant was given a last chance to produce the witnesses. On 13.12.1971 both the complainant and the accused persons were absent and the matter was directed to be placed on the next day, i.e., 13.12.1978. The parties accept that this is the position so far as the happenings on the dates indicated above are concerned. The controversy arises as to the happenings on 13.12.1978. According to the Petitioner, the complainant was absent and did not take any steps. The accused persons were represented. The parties accept that this is the position so far as the happenings on the dates indicated above are concerned. The controversy arises as to the happenings on 13.12.1978. According to the Petitioner, the complainant was absent and did not take any steps. The accused persons were represented. Since the complainant did not take any steps the Magistrate was of the view that since the complainant was not showing interest, there appears to be no prima facie case and the case was therefore disposed of and the accused persons were discharged u/s 244(2) of the Code of Criminal Procedure, 1973 (for short 'the Code'). According to the opposite parties, however, on 13.12.1978 in the absence of the complainant, evidence was taken and the accused persons were discharged u/s 245(1) of the Code. The subsequent complaint which is the subject matter of consideration in the present case was filed on 16.1.1979. On that date the learned Magistrate directed that a properly typed petition was to be filed on the next day, i.e., 17.1.1979. He observed that the earlier complaint appeared to have bean dismissed for default. The records of the earlier complaint case were verified by him and after recording the initial statement cognizance was taken u/s 420, Indian Penal Code and summons were directed to be issued to the accused persons, as according to the learned Magistrate the accused persons were not expected to abscond: On 23.8.1985 the opposite parties filed an application stating that after taking all evidence into consideration for reasons to be recorded, it was revealed that no case was made out, the Hon'ble Sub-Divisional Judicial Magistrate on 13.12.1978 acquitted the accused persons, a certified copy of the order is filed herewith (Quoted from the petition). It was indicated in the said petition that the complaint petition under consideration was a verbatim copy and that cognizance was taken without revealing the above facts. It was submitted that in view of the provisions of Section 300 of the Code the case was not maintainable, more particularly when the complaint did not appear in the case till the institution of the case. It was submitted that in view of the provisions of Section 300 of the Code the case was not maintainable, more particularly when the complaint did not appear in the case till the institution of the case. Even though the petition indicated that the certified copy of the order dated 13.12.1978 was being filed along with the petition, in fact no such certified copy was filed On the other hand, on the next day, i.e., 24.8.1985 certified copy of an entry of the destruction register was filed wherein it was indicated that the accused persons were acquitted on 13.12.1978. It is relevant to mention that the records were destroyed on 26.9.1980. The Petitioner filed objection stating that there was no acquittal but the accused persons were discharged. A petition was filed on 26.8.1985 by the Petitioner to produce the certified copy of the relevant entry in the trial register. On 3.9.1985 the certified copy of the complaint register has filed wherein it was indicated that the accused persons were discharged u/s 245(1) of the Code. The matter was taken up for hearing on 4.9.1985. On that date a petition was filed by the Petitioner stating that there was manipulation in the complaint register as the accused persons were discharged u/s 245(2) of the Code. To that effect entries were made in the complaint register, but subsequently the same has been tampered With end instead of 245(2)' by manipulation 245(1)' has been indurated. The Petitioner further prayed that he may be granted some more time to file the certified copy of the trial register. However, the learned Magistrate did not accept the prayer and by the impugned order held that the Petitioner was not supported by an affidavit and since the certified copy of the entries in the complaint register has been filed there was no necessity for awaiting the filing of the certified copy of the relevant entries in the trial register. By the impugned order he held that the documents filed clearly established that there was acquittal as the case was disposed of on merit u/s 245(1) of the Code. By the impugned order he held that the documents filed clearly established that there was acquittal as the case was disposed of on merit u/s 245(1) of the Code. According to him, though there was confusion and some amount of contradiction between the destruction register and the complaint register, yet in view of the fact that the accused persons were discharged on merit after considering the merits of the case and taking all the evidence referred to in Section 244 of the Code, that amounted to an acquittal and therefore, the subsequent complaint was not maintainable. He further held that the accused persons were discharged or acquitted on merit after appreciation of the evidence adduced by the complainant and therefore, the accused persons were not to be tried in the second complaint as they were earlier discharged or acquitted by the trying Magistrate. This order as aforesaid is being impugned in this revision application. Notices were issued to the opposite parties. Only opposite party No. 1 has appeared. Opposite parties 2 to 4 refused to accept the notices. 4. Mr. D.P. Mohanty, learned Counsel appearing for the Petitioner, submitted that there was no acquittal on the earlier occasion and there was no appreciation of evidence in the earlier case and the complaint was dismissed for default on account of non-appearance of the complainant and it cannot be said that the case was disposed of on merits. In an event the matter was disposed of u/s 245(2) of the Code. Therefore, the second complaint was not prohibited. According to him, the order of the learned Magistrate is therefore vulnerable and it is a clear case of non-application of mind. It was further submitted that had the learned Magistrate awaited filing of the certified copy of the trial register for which the Petitioner prayed for time, be would have, been satisfied about the tampering with the entry in the register, Refusal of the prayer on untenable grounds deprived the Petitioner of a fair participation in the proceeding and as a result relevant documents were left out of consideration. Mr. P.K. Ray, learned Counsel appearing for opp. party No. 1 submitted that whether the order was passed u/s 245(1) or 245(2) in the earlier case is irrelevant, as a second complaint in such circumstances is not entertainable. Mr. P.K. Ray, learned Counsel appearing for opp. party No. 1 submitted that whether the order was passed u/s 245(1) or 245(2) in the earlier case is irrelevant, as a second complaint in such circumstances is not entertainable. It was further urged by him that in view of the fact that the matter has been delayed on account of continued inaction of the Petitioner, it would be appropriate to sustain the order passed by the learned Magistrate, as it would not be proper to rake up stale matters. 5. After hearing the learned Counsel for the parties, I find that the Court below proceeded to deal with the matter in the most casual and careless manner althrough. The orders dated 16.1.1979 and 17.1.1979 clearly indicate that the earlier complaint petition was dismissed for default. The learned Magistrate came to this conclusion on perusal of the- records of the earlier complaint case. If that be so, it is not known as to how the matter could have been disposed of u/s 245(1) or u/s 245(2) as claimed by the parties. The appropriate section, according to me, would have been Section 249. While both Sections 245 and 249 provide for discharge of the accused, there are important points of difference. The points of difference are: (i) u/s 249, the accused may be discharged at any time prior to the framing of the charge, on the ground of absence of the complainant. Section 245(1) provides for a discharge only upon a consideration of the prosecution evidence, while Section 245(2) empowers to Magistrate to order discharge at an earlier stage, but only if he considers that the 'charge is groundless'. Absence of the complainant, per se, cannot be a ground for discharge under either Sub-section of Section 245. (ii) The power of the Magistrate to discharge the accused before framing of the charge u/s 249 is limited by the condition that the case relates either to a compoundable or to a noncognizable case. The power of the Magistrate u/s 245 to discharge the accused is not limited to such cases only. (iii) u/s 249 it is in the discretion of the Magistrate to discharge the accused on account of absence of the complainant. The power of the Magistrate u/s 245 to discharge the accused is not limited to such cases only. (iii) u/s 249 it is in the discretion of the Magistrate to discharge the accused on account of absence of the complainant. But u/s 245 the Magistrate is bound to discharge the accused as soon as he is satisfied that the evidence led on behalf of the prosecution discloses no case against the accused. The undisputed position is that in the earlier case, no charge was framed and on evidence of the witnesses on behalf of the prosecution was recorded. Therefore, as to how the order could be passed either u/s 245(1) or u/s 245(2) is really intriguing. Further confusion has arisen on account of two apparently contradictory entries in the complaint register and the trial register. Both the Petitioner and the opposite parties point accusing fingers at each other for the alleged tampering. According to the Petitioner, in the register, the entry 245(2)' was changed by and/or with the connivance of the opposite parties to 245(1)' to, suit their stand. The opposite parties on the other hand, allege that the Petitioner is not very consistent in his stands, end correction from 245(2) to 245(1) as made by him and/or with his connivance to improve the case. Whoever be the author of tampering, casuality is justice A bare perusal of the trial register indicates that in fact the entry has been corrected from 245(2) to 245(1), without any initial by the person effecting the correction. It is not known as to under what circumstances the entry in the destruction register was 'acquittal'. However, this appears to be immaterial in view of the fact that the impugned order cannot be sustained on the simple ground that the learned Magistrates while holding that the subsequent complaint was not maintainable based his conclusion on the assumption that on the earlier occasion the accused persons were discharged or acquitted on merit, after appreciation of the evidence of the witnesses of the complainant. It is nobody's case that the complainant had adduced evidence. On the other hand, it is not disputed that no witness was examined by the complaint. According to assertion of opposite parties, their witnesses were examined and on consideration of the evidence taken, were discharged u/s 245(1). This assertion can be accepted with a pinch of salt. It is nobody's case that the complainant had adduced evidence. On the other hand, it is not disputed that no witness was examined by the complaint. According to assertion of opposite parties, their witnesses were examined and on consideration of the evidence taken, were discharged u/s 245(1). This assertion can be accepted with a pinch of salt. Evidence of the accused could not have been taken, particularly when no charge was framed and the opposite parties could not have produced witnesses when there was no direction by the Court in that regard. Before framing of charge, the question of adducing evidence by accused persons does not arise. u/s 245(1), the only consideration before the Magistrate to warrant an order of discharge is whether the evidence so far recorded on behalf of the prosecution, if it remained unrebutted, would result in conviction. He cannot at that stage consider the entire pros and cons of the evidence, inasmuch as is the prosecution witnesses are to be produced for further cross-examination after the charge is framed, and in some cases defence are also to be examined. Hence, even if a doubt is raised in the mind of the Magistrate, he cannot make an order of discharge. No charge admittedly was framed. Therefore, an order u/s 245(1) of the Code could not have been passed. Therefore, the learned Magistrate without application of mind came to hold that there was acquittal or discharge on the earlier occasion after consideration of the evidence produced by the complainant. It is not known as to what extent this presumption or supposition has influenced to such conclusion. Law is fairly well settled that when a conclusion is based on irrelevant materials the same becomes vulnerable as is not known as to whet extent the irrelevant materials have influenced the ultimate conclusion. See Mahta Parikh & Co. v. C.I.T. (1956) 30 ITR 181 (S.C.), The Liquidators of Pursa Limited Vs. Commissioner of Income Tax, Bihar, and The Commissioner of Income Tax, Bihar and Orissa, Patna Vs. S.P. Jain. Therefore, the impugned order is liable to be vacated and set aside. 6. There is also another aspect, with which shall presently deal with. It appears that the learned Magistrate did not accept the prayer of the Petitioner to grant him time to file the certified copy of the trial register on the ground that the petition was not supported by affidavit. 6. There is also another aspect, with which shall presently deal with. It appears that the learned Magistrate did not accept the prayer of the Petitioner to grant him time to file the certified copy of the trial register on the ground that the petition was not supported by affidavit. It has not been shown to me as to under what provision a petition is required to be supported by affidavit while praying for time to file the certified copy of a document. Before the learned Magistrate two documents were filed which were in apparent contradiction with each other. In the interest of justice, he should have himself called for the trial register to find out the manner of disposal of the earlier complaint petition. This Court called for the trial register, complaint register and the destruction register by order dated 5.2.1986. On a perusal of these registers. I find that in reality in the trial register at serial 2427, it is written that the accused persons were discharged u/s 245(2), Code of Criminal Procedure. Therefore, the refusal of the prayer to file the certified copy of the trial register was not warranted in the circumstances of the case. The learned Magistrate himself on 16.1.1979 and 17.1.1979 observed on perusal of the records that the earlier complaint petition was dismissed for default. He was himself satisfied while taking congnizance that there was no discharge or acquittal and merely the complaint was dismissed for default. What is important is the substance and not the form. Terminological inappropriacy is not of relevance. At that point of time, when the records were in his possession, he was satisfied that a second complaint was maintainable. He should have directed preservation of the earlier case record when he was considering the subsequent complaint. The trial Courts would do well in directing preservation of records of earlier complaint petitions, when subsequent complaint petitions are under consideration to obliviate the difficulties as appeared in the present case. Had the learned Magistrate been careful to direct preservation of the earlier records, the difficulties encountered in the present case could have been avoided. 7. Before I part with the case, I would also like to deal with the submission of Mr. Ray about the long passage of time since the cognizance of the first complaint or the second complaint, as the case may be. 7. Before I part with the case, I would also like to deal with the submission of Mr. Ray about the long passage of time since the cognizance of the first complaint or the second complaint, as the case may be. It is indelicate for the opposite parties to take this stand. A bare perusal of the order-sheet of the lower Court goes to show that the opposite parties had a major role to play in the time consumption process, Opposite party No. 2 appeared on 30.8.1979 when he was enlarged on bail. Opposite party No. 4 appeared on 25.9.1979 and was enlarged on bail on that date. There was no appearance on behalf of opposite party No. 3. Opposite party No. 3 appeared on 7.8.1984 after several attempts were made to serve summons on him. In the meantime, it transpires that opp. party Nos. 2 and 4 did not appear in Court and no steps were taken on some of the dates fixed. On 6.8.1980 direction was given to issue non-bailable warrants against them. Unfortunately in the order it is mentioned that the non-bailable warrants were directed to be issued against opp. party Nos. 2 and 3. It is significant to mention that till that day, opp. party No. 3 had not appeared in Court. This is another example or slips or maintenance of order-sheet. On 17.9.1980 even though representation petitions were filed on behalf of opp. party Nos. 2 and 4, none was present to move the petition. The non-bailable warrants of arrest issued against them were subsequently recalled. Again the aforesaid two opposite paities remained absent on 29.9.1980 and non bailable warrants of arrest were issued against them. However, the order was later recalled. Again on 1.9.1981 the representation petition was rejected and non-bailable warrants of arrest were issued. Since the earlier order for issuance of non-bailable warrants of arrest stood, the representation petition filed subsequently were considered to be superfluous. After long lapse, the opp. parties 1 and 4 filed petition and prayed for bail on 17.9.1983. It is strange that the order-sheet mentions about the filing of the bail application by opp. party No. 1, which is not a living person, and is a corporate entity. Therefore, the question of filing of bail application by opp. party No. 1 does not arise, processes under Sections 82 and 83 of the Code were resorted to. It is strange that the order-sheet mentions about the filing of the bail application by opp. party No. 1, which is not a living person, and is a corporate entity. Therefore, the question of filing of bail application by opp. party No. 1 does not arise, processes under Sections 82 and 83 of the Code were resorted to. On 28.6.1984, all the opposite parties appeared. Since non-bailable warrants of arrest had been issued against opp. party Nos. 2 and 3 earlier, the representation petitions of opp. party Nos. 2 and 3 were rejected, On 7.8.1984 a petition was filed, and opp. party No. 3 moved for bail. Without considering his indifferent and recalcitrant attitude, bail was granted. Even though the representation petition of opp. party No. 2 was rejected on 28.6.1984, it is strange to find that subsequent representation petition filed by him was allowed. In these premises as stated above, the question of any long delay since institution of the complaint necessitating non-interference does not arise. In view of my observation and findings above, it is not necessary to deal with the other contentions raised by the parties. 8. In the result, the petition succeeds and the revision is allowed. The impugned other is set aside. The learned Magistrate would do well to take up the matter as early as possible, and dispose of the same within a period of three months. To avoid unnecessary delay, the parties are directed through their counsel appearing in this Court to appear before the learned Magistrate on 7.11.1989 to take orders from Court regarding further trial. Final Result : Allowed