K. SREEDHAR RAO, J.

( 1 ) PETITION FILED UNDER SECTION 482 OF THE CR. P. C. , FOR RESTORATION OF A private COMPLAINT IN P. C. R. NO. 234 OF 1997 DISMISSED FOR DEFAULT ON 18-9-1999.

( 2 ) IT IS THE CASE OF THE PETITIONER-COMPLAINANT THAT, SHE HAD FILED A PRIVATE COMPLAINT FOR PROSECUTING THE ACCUSED FOR AN OFFENCE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT. ON THE FATEFUL DAY, WHEN THE CASE WAS CALLED, THOUGH SHE WAS PRESENT IN THE COURT, SHE COULD NOT HEAR PROPERLY AND PRESENT BEFORE THE COURT, AND IN THE RESULT, THE COMPLAINT was DISMISSED. IMMEDIATELY, ON THE SAME DAY, MEMO WAS FILED FOR RESTORATION. THE TRIAL COURT REJECTED THE REQUEST, REVISION WAS ALSO FILED before THE SESSIONS COURT IN CRI. R. P. NO. 91 OF 2000 AND THE SAME CAME to BE DISMISSED. THEREFORE, INVOKING THE INHERENT POWER, THE PRESENT petition IS FILED.

( 3 ) ON GOING THROUGH THE MATERIAL, I FIND THAT THE MAGISTRATE HAS POWER TO DISMISS THE COMPLAINT, IF THE COMPLAINANT IS ABSENT AND AT THE SAME TIME, THE DISMISSAL ORDER IS PASSED, THE COURT BECOMES FUNCTUS OFFTCIO AND MAGISTRATE HAS NO JURISDICTION TO RECALL HIS ORDER. IN THAT VIEW OF THE MATTER, THE DISMISSAL OF THE MEMO FOR RECALLING OF THE ORDER IS ALS

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