JUDGMENT :

DEEPAK GUPTA, J.

1. Delay in filing substitution application is condoned. Application for substitution is allowed and abatement is set-aside.

2. This appeal is directed against the order dated 22.10.2008, whereby the High Court allowed the appeal of the complainant and held the original appellant before us (since deceased), whose legal representatives are on record, liable for conviction under Section 138 of the Negotiable Instruments Act (hereafter referred to as the “Act”). He was sentenced to pay fine of Rs.5,10,000/-and in default to undergo simple imprisonment for one year.

3. The legal heirs, in such a case, are neither liable to pay the fine or to undergo imprisonment. However, they have a right to challenge the conviction of their predecessor only for the purpose that he was not guilty of any offence. We have, therefore, allowed the application filed by the legal heirs to prosecute this appeal.

4. The case set up by the complainant was that the original appellant had borrowed a sum of Rs.5 lakhs from him and for repayment of that sum had issued a cheque on 18.11.2000 drawn on State Bank of Mysore. On presentation, the cheque was dishonoured for want of sufficient fund