( 1 ) LEAVE granted.

( 2 ) THE present appeal is filed by the appellants-original accused against the order passed by the Judicial Magistrate. First Class (Court No. 7 ). Pune on August 25. 2004. confirmed by 5th Additional sessions Judge, Pune on July 1, 2005 and also confirmed by the High Court of bombay on December 15, 2005.

( 3 ) TO understand the controversy raised in the appeal, relevant facts may be stated in brief.

3. 1. One Shaikh Saheblal Mardan (hereinafter referred to as the complainant )was resident of Pune. Appellant-accused no. 1 Smt. Rashida Kamaluddin Syed is his daughter, and appellant accused no. 2 kamaluddin K. Syed is husband of accused no. 1 and son-in-law of the complainant. It was the case of the complainant that he was the owner of a bungalow which he sold in may, 1992 through accused no. 2 and deposited the amount of consideration in bank. The accused no. 2 dishonestly represented to the complainant that he was having some proposals of land for sale and he would get it at a cheaper rate if the complainant was interested in such investment. It would earn more profit to the complainant and he would also get exemption from payment of capital gains but the complainant wanted to go on Haj (Saudi Arabia) for a month on June 1, 1992. The accused no. 2 again dishonestly represented to the complainant that he could very well go to tour and the accused no. 2 would invest the money in suitable and beneficial proposals. Relying on such dishonest representations by accused no. 2, the complainant gave him five blank signed cheques as also withdrawal slips so as to enable appellant no. 2 to invest amount in purchase of property and to pay such amount to vendors. It was the case of the complainant that when he returned from haj, he found that an amount of Rs. 5,15,000/-had already been withdrawn by appellant no. 2 but no property was purchased in the name of the complainant. On further inquiry, he found that accused nos. 1 and 2 had joined hands and their common intention was to grab money of the complainant. He made inquiry to appellant no. 2 but the latter gave evasive reply. Moreover, the accused purchased an open plot in the joint name of accused no. 1 and complainant for Rs. 2,70,000/ -. Accused no. 1 also sent a notice through her advocate stating therein that the plot was purchased by her with her own money. She also filed a false complaint on August 28. 1992 against the complainant and his sons for offences punishable under Sections 384, 511, 504, 506 read with 34 of Indian Penal code (IPC) alleging criminal intimidation and extortion. The complainant was thus convinced that his daughter and son-in-law (accused nos. 1 and 2) had cheated him and committed criminal breach of trust. He, therefore, filed Criminal Complaint No. 605 of 1993 in the Court of Judicial Magistrate, first Class (A. C. Court), Pune on March 15. 1993 for offences punishable under sections 406 and 420 read with 34 1pc. The Judicial Magistrate, First Class after recording statement of complainant issued process under Section 204 of Code of criminal Procedure. 1974 (hereinafter referred to as "the Code" ). During the pendency of the proceedings, however, complainant died in November. 1996.

3. 2. Three sons of deceased-complainanl [ (i) Shaikh Shaiuddin, (ii) Shaikh Nuruddin; and (iii) Shaikh Nizamuddin] made an application (Exhibit 21) on January 17, 1997 for permitting them to continue prosecution against the accused persons. The learned Magistrate by an order below exhibit 21 dated May 23. 1999 granted the application relying upon a decision ol" this court in Ashwin Nanubhai Vyas v. State of maharashtra and allowed Shaikh sahabuddin respondent no. 1 herein to continue the prosecution against the accused persons. It appears that the said order had not been challenged by the accused and it had attained finality, Name of respondent no. 1 was accordingly, entered on May 14, 2000. Prosecution witnesses were also examined therea