Kuppuswami Ayyar, J.
1. This is a petition by the complainant in C.C.No. 50 of 1944 on the file of the Joint Magistrate of Bezwada. He filed a complaint for cheating against one Sitaratnamma, an offence punishable under Section 420, Indian Penal Code. His case was that the accused took jewels from his wife representing that they were required for taking the photograph of girl who was about to be married and that the jewels were given to her but not returned subsequently though she was requested to return the same. Anumber of witnesses were cited and it was stated that three persons were given to her but not returned subsequently though she was requested to return the same. A number of witness were cited and it was stated that three persons were present at the time of the delivery of the jewels. The Magistrate took evidence and also examined a Court witness but passed an order of the jewels to the accused. He discussed the evidence and passed an order discharging the accused under Section 253(1), Criminal Procedure Code. He definitely states : “I therefore discharge the accused under the provisions of Section 253(1) of the Criminal Procedure Code.” The Magistrate had no power of Section 253(1) until he has examined all the witnesses. This has been pointed out by this Court in The Queen v. Parasurama Naicker (1881) I.L.R. 4 Mad. 329. When the matter was taken in revision to the Additional District Magistrate, he was of the matter was taken in revision to the Additional District Magistrate, he was of the opinion that the Magistrate committed an error and that what he must have meant was that he was discharging the accused under Section 253(2) and then dismissed the petition. I do not think there is any justification for thinking that the Magistrate intended to discharge under Section 235(2) when he specifically stated that he discharged under Section 253(1). The evidence has been appreciated no doubt on the basis that all the evidence was over. We cannot say what conclusions the Magistrate would have come to if he had also examined the other witness to prove the delivery of the jewels. As a matter of fact, the accused’s case was that the jewels were not received by her. “In these circumstances I do not think the Additional District Magistrate was justified in treating the order as one passed under Section 253(2) and proceeded to appreciate the evidence and infer that the Magistrate would have come to the same conclusion even if he had examined the other witness. I therefore set aside the order of discharge and remand the case to the Joint Magistrate of Bezwada for proceeding with the case after examining the two other witnesses who have not been examined, namely, the investigating officer and the other witness who is to prove the delivery of the jewels to the accused.