R.K. Batta, J. - The applicants have filed an application for bringing them on record as legal heirs of deceased Michael Francis Pinheiro in proceedings for leave to appeal against order of acquittal of respondents M/ s. Kamaxi Steel Products passed by Judicial Magistrate, First Class, Margao in Criminal Case No. 136/N/96/II. The said Michael Francis Pinheiro had filed a complaint regarding an offence under Section 138 of the Negotiable Instruments. Act, Judicial Magistrate, First Class, Margao, vide judgment dated 27th April, 1998 acquitted the respondents M/ s. Kamaxi Steel Products against which order an application for leave to appeal has been filed. The original complainant Michael Pinheiro died after the said Judgment and after filing application for leave to appeal. The leave to appeal was filed on 5th August, 1998 and the appellant died on 26th August, 1998. That is how his legal heirs now wish to prosecute leave to appeal and, for that purpose, they have filed an application for bringing them on record. This application is opposed by learned Advocate for the respondent.

2. Learned Advocate Shri Usgaonkar appearing on behalf of the legal heirs has placed before me a number of authorities of different High Courts on the question of bringing heirs of complainant on record during the pendency of proceedings before the Magistrate and on the basis of the said Judgments and drawing analogy there from it is urged that the legal heirs be permitted to be brought on record for the purpose of prosecuting application for leave to appeal. On the other hand. Advocate Shri Salkar, appearing on behalf of the respondents M/s. Kamaxi Steel products after relying upon Judgment of Karnataka High Court in Subbanna Hegde (Xnd others v. Dyavappa Gowda1, has urged that the heirs cannot be ordered to be brought on record and the application be dismissed.

3. Learned advocate for the parties have not brought to my notice any Judgment which would directly apply to the issue in question that is to say death of the complainant after the proceedings end in judgment and pending leave to appeal. However. I am in agreement with learned advocate for the applicants that on the analogy of the judgments rendered by different High Courts on the scope and ambit of Section 256, Criminal Procedure Code the legal heirs should be allowed to be brought on record in order to prosecute the leave to appeal.

4. The earliest Judgment to which my attention has been drawn is a Division Bench ruling of this Court in Mahomed Azam v. Emperor2. This was a summons triable non-cognizable case where the complainant had died during the pendency of the case before the Magistrate and it was ruled by the Division Bench of this Court that death of the complainant does not end the prosecution and the Magistrate can continue with fit substituted complainant and the maxim act to personal is mortar cum persona does not apply.

5. Reliance is placed by learned Advocate for the applicants on the Judgment of the Andhra Pradesh High Court in Maddipatta Govindaiah Naidu and others v. Yelakaluri Kamalamma and another3. wherein while dealing with a sessions case where proceedings had been initiated on the basis of private complaint and during pendency of inquiry under Section 202(2). Cr. P.C. the complainant had died and widow of complainant was permitted to continue the proceeding which was challenged in appeal it was held that there is no foundation for the proposition that the prosecution ends on the death of the complainant in a criminal case. Criminal proceedings legally instituted do not terminate or abate merely on the death of the complainant since the cause of civil action bears no analogy to complaints of crime. In this case a number of Judgments of the High Courts including that of Mysore High Court in Subbamma v. Kannapachari4; Patna High Court in Panchu Swain v. Emperor5; Allahabad High Court in Musa v. Emperor6; Madras High Court in Narayana Naick and others v. Emperor7; A