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4. A perusal of the judgment, of the trial Court indicates that it: was confused on the point whether the section requires the cognizance of the case being taken within three-months or it required only the complaint being made within that period. In any case if on an examination of the relevant: material on record it is found that the-complaint was made within statutory period of three months, the order passed by the learned Magistrate must be held to be erroneous,

5. According to the allegations made in the complaint, it was on 10th May, 67 that the Inspector came to know-about the commission of the offence by the respondent. It would therefore follow-that the complaint could be made till 9th of August 67. A perusal of the record reveals that the complaint duly drafted' and signed was forwarded by the Factory-Inspector to the District Magistrate-through his letter dated 2nd August 67, and, on 4th of August the Additional District Magistrate endorsed an order thereon transferring the complaint to the Court of City Magistrate for disposal. In view of the order passed by the Additional District Magistrate there can be not an iota of doubt that the complaint had reached the-Additional District Magistrate on or before 4th of August 67. Since the limitation for filing the complaint extended up to 9th of August 67 it must be held that the complaint had been made within the-period of limitation.

8. learned Counsel for the respondent then contended that under Section 8(4) of the Factories Act the District Magistrate is a Factory Inspector for his district. learned Counsel contended that it should therefore be presumed that the complaint was forwarded by the Factory Inspector to the District Magistrate as a superior officer in the hierarchy of his department and. consequently, the complaint cannot be deemed to have been made to a court during the period it was dealt with-by the District Magistrate or the Additional District Magistrate.

9. It is true that under Section 8(4). The District Magistrate is a Factory Inspector for. his district. An officer can always have a dual character. Even though the D. M, is a Factory Inspector he is also a Magistrate exercising .jurisdiction throughout the district and in that capacity he constitutes a Court. Under the circumstances the fact whether the complaint was sent by the Factory Inspector to the District Magistrate treating him to be a superior officer in the hierarchy of his department or it was sent to him as a court should rest on the language of the complaint and the letter accompanying it. Indeed it should not rest on . imagination or presumption which have no basis. I have already stated earlier that the complaint in the instant case was addressed to the court of the District Magistrate and the complaint contained a request asking the District Magistrate to take cognizance thereof. In the letter accompanying the complaint also the District Magistrate was requested to take cognizance of the complaint before a particular date. Neither' the letter nor the complaint even impliedly state that the complaint may be forwarded to the competent court for disposal. The language used in the complaint and' the letter accompanying it leave absolutely no room for doubt that the complaint was sent to the District Magistrate as a court and not as a Factory Inspector,

25. There is more than one reason for which the argument cannot be accepted. A perusal of the order passed by the learned Magistrate clearly, indicates that he did not dismiss the complaint for the default of the Factory Inspector. That is also apparent on a perusal of the order sheet. The case was fixed for arguments since sometime prior to 7th October 68, On that date viz. 7th of October, the Inspector of Factories informed the court that he would not submit any arguments. On the subsequent dates the case was listed for arguments, obviously of the other party. There was nothing to be done by the Factory Inspector. Consequently, his presence was not at all necessary. Under Section 247 of Cr.PC if the complainant is absent on any date fixed for hearing, the Magistrate has two courses open to him. He may either dismiss the complaint and acquit the accused or adjourn the hearing of the case to some other date. Since the Factory Inspector had already made a statement on an earlier date that he would not submit any argument and since his presence was obviously not necessary on the subsequent dates, the presumption is that the Magistrate would not have dismissed the complaint on that ground. In case, he had negatived the contention raised on behalf of the respondent regarding limitation, he would have in all probability listed the case on some other date. for recording the prosecution evidence.