1. The complainant in this case, K. Venkayya, presented a complaint to the Taluq Magistrate, Nandigama, on 8th August 1916 against accused B. Kottayya and others, charging them with an offence under Section 426, Indian Penal Code. The case was duly taken on file and posted for haring, and eventually adjourned to 20th September 1916; on which date, in consequence of the absence of complainant, an order of acquittal was passed under Section 247, Criminal Procedure Code.

2. Subsequently on 22nd September 1916, complainant presented a freshly complaint of the same offence based on the same facts and explained his absence on 20th September 1916 to the satisfaction of the Magistrate. The Magistrate thereupon took cognizance of this second complaint and directed the issue of process to the accused.

3. The sole question is whether Section 403, Criminal Procedure Code, is a bar to the Magistrates taking cognizance of the second complaint by reason of the order of acquittal passed on 20th September 1916.

4. In our opinion it is not. Section 403 only bars the re-trial of a person, who has once been tried and convicted or acquitted, and in this case, it does not appear that the accused were