IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ND THURSDAY, THE 22 DAY OF AUGUST 2024 / 31ST SRAVANA, 1946 CRL.A NO. 2310 OF 2007 AGAINST THE ORDER DATED 19.12.2002 IN CC NO.22 OF 1998 OF CHIEF JUDICIAL MAGISTRATE,KOLLAM APPELLANT/CLAIMANT:

M/S.KUMAR PRINTERS, IIND FLOOR, AMARAVATHY COMPLEX, MAIN ROAD, KOLLAM - 1 A, PROPRIETORY CONCERN OWNED M.T.MAHALAKSHMI,, D/O.THIRUVANKITA REDDIAR, R/AT KUMAR BHAVAN,, CONVENT ROAD, KOLLAM, REP. BY HER POWER OF ATTORNY, HOLDER, S.

VENKITA LAKSHMANAN, LAKSHMY NIVAS, LAKSHMINADA BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENTS/ACCUSED:

1 MR.RASHEED, PROPREITOR M/S.COSTA FOODS, KOCHANGADI, KOCHI-622005,, RESIDING AT ZEENATHU MANZIL, SANADANAPURAM,, ALAPPUZHA FROM NAZEER MANZIL, SANADANAPURAM,, ALAPPUZHA - 688001.

2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

BY ADV A.AHZAR OTHER PRESENT:

PP-SRI.M.C.ASHI THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 22.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

SOPHY THOMAS, J.

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Crl. Appeal No. 2310 of 2007 ========================

J U D G M E N T Dated this the 22nd day of August, 2024 This appeal is at the instance of the complainant in C.C. No. 22 of 1998, on the file of Chief Judicial Magistrate Court, Kollam assailing acquittal of the accused in a complaint filed by him under Section 138 of the Negotiable Instruments Act, 1938 (for short, “NI Act”).

2. When the appeal is taken up for consideration today, learned counsel for the accused submitted that the accused is no more, and he produced copy of his death certificate which shows that, the 1st respondent / accused passed away on 08.08.2020.

3. The 1st respondent / accused was the sole proprietor of M/S.Costa Foods, Kochangadi, and the cheque was issued in his personal capacity. Moreover, a proprietary concern is not a separate legal entity. So, on death of the proprietor who issued the cheque, his legal heirs cannot be impleaded in an appeal against acquittal, filed by the complainant.

4. In Madhu v. State of Kerala and Another [2020 (3) KHC

623], this court had occasion to consider a similar situation, in which an accused person, who was acquitted in a proceedings under Section 138 of the NI Act died during pendency of the appeal, and it was held that, if an accused dies when an appeal under Sections 377 or 378 is pending, that appeal will abate as per Section 394(1) of Cr.P.C, and legal heirs of accused cannot be impleaded in an appeal against acquittal filed by the complainant. The facts in the case on hand are also identical. Since the accused died pending appeal, which was filed by the complainant against his acquittal in a proceedings under Section 138 of NI Act, the appeal abates, as his legal heirs cannot be impleaded.

Hence the appeal is dismissed, as abated.

Sd/-

SOPHY THOMAS JUDGE RMV