Padmanabhan Nair, J.

This appeal is filed by the complainant in C.C.No.396/1995 on the file of the Chief Judicial Magistrate, Thalassery challenging the judgment passed by the court below acquitting the respondent.

2. Petitioner filed a private complaint alleging that respondent borrowed an amount of Rs.one lakh and issued Ext.P-1 cheque on 25-6-1995 in discharge of that legally recoverable debt. Appellant presented the cheque for collection on 19-5-1995 through Mambaram Branch of the Syndicate Bank. Cheque was dishonored with an endorsement that the account was closed. It was also alleged that respondent had no sufficient funds also in the account maintained by him with the bank. Notice was issued demanding repayment of the amount covered by Ext.P-1 cheque. Respondent issued Ext.P-8 reply denying his liabilities. Hence the complaint alleging that respondent committed offences punishable under Section 138 of the Negotiable Instruments Act and Section 420 of Indian Penal Code.

3. When respondent appeared before learned Magistrate copies of relevant documents were furnished to him. After recording statements of complainant and witnesses charges under Section 138 of the Negotiable Instruments Act and Section 420 of Indian Penal Code were framed against respondent. Charges were read over and explained to him. He understood the same and pleaded not guilty. On the side of complainant P.Ws.1 to 3 were examined. Exts.P-1 to P-8 proved and marked. After prosecution evidence was over respondent was questioned under Section 313 of Criminal Procedure Code. He denied all incriminating circumstances brought against him. No defence evidence was adduced.

4. Learned Magistrate after considering evidence adduced by the appellant found that he failed to establish charges leveled against respondent and acquitted him. Challenging the order of acquittal complainant has filed this Criminal Appeal after obtaining special leave.

5. Appellant—complainant died on 24-11-1999. On 19-7-2006 the widow and children of deceased appellant filed Crl.M.Appln. No.6984/2006 to implead them as additional appellants. They filed Crl.M.Appln. No.6985/2006 to set aside abatement and Crl.M.Appln. No.6983/2006 to condone delay in filing the petition to set aside abatement. The applications were opposed. Applications were heard by a learned Single Judge of this Court on 11-9-2006. Reliance was placed on a decision of this Court in Sebastian v. State of Kerala (2004 (1) K.L.T. 457). Learned counsel appearing for respondent contended that in view of the principles laid down in Jayarajan v. Jayarajan (1992 (2) K.L.T. 586 ) and Santhi Balagopal v. Benilde(1995 (2) K.L.T.488) dictum laid down in Sebastian's case (supra) requires reconsideration. Learned Single Judge felt that matter requires an authoritative pronouncement and referred the matter to be heard by a Division Bench. Accordingly the matter was placed before this Bench.

6. There is no provision in the Cr.P.C. to implead the legal representatives of a party to a criminal case pending before any criminal court. There is no provision for setting aside abatement or condoning the delay as there is no provision is made for filing a petition for impleading the legal representatives or any period of limitation is prescribed.

7. In a case instituted on a police report there is no question of any abatement. Even if de facto complainant dies while case is pending before Magistrate or before Sessions Judge, as the case may be, no question of abatement arises because trial is conducted by the prosecutor. He will take necessary steps to procure the presence of witnesses. In trial of warrant cases instituted otherwise than on a police report if complainant is absent and charges are not framed a Magistrate may discharge the accused under Section 249 of Criminal Procedure Code.

8. Section 249 of Criminal Procedure Code reads as follows:

“249. Absence of complainant.---When the proceedings have been instituted upon complaint, and o