1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.332 of 2008 IN Criminal Appeal No. of 2008 Manherlal C. Shah .. .. Applicant v/s. Manisha Jaiswal & anr. .. .. Respondents Mr.S.V. Marwadi for Applicant. Mr.R.V. Newton, APP for Respondents. ---- CORAM : SMT.ROSHAN DALVI, JJ. Dated : 4th November, 2009 P.C. : 1.The Applicant-Appellant was directed to issue notice to Respondent No.1 on 22.4.2008. The notice was made returnable on 28.7.2008. The Advocate of the Applicant was permitted to serve Respondent No.1 with the Advocate s notice by RPAD/Speed Post/Courier/Fax/E-mail and file an Affidavit of service. That order has been complied. The Affidavit of service has been filed. The Affidavit of service is of one Vajesh S. Davande, who is the Clerk of the Advocate of the Applicant. It shows the service having been sent by courier. It shows the acknowledgment on behalf of Respondent No.1. The acknowledgment is signed by one Deepak. This 2 acknowledgment is shown to be between the acknowledgment of two other similar services effected by the said courier on 29.4.2008. It is, therefore, seen that the statement in the Affidavit of service that the packet was sent by courier on 26th April 2008 is substantiated. The Applicant has complied with the initial order of service dated 22.4.2008. The Farad sheet of the Court shows that the notice was issued even thereafter on 21.7.2008 by this Court. Thereafter there is a further order passed for issuance of further notice on 7.8.2008. That notice came to be issued on 25.8.2008. Thereafter on 16.1.2009, a statement was made by the Advocate for the Applicant that a private notice was duly served and the Affidavit of service was filed. Hence, the Appeal was kept for admission. 2.Despite that, again on 29.1.2009, a fresh notice was directed to be issued. Returnable date of the notice has come to be extended. The Advocate for the Applicant states that in the meantime, Respondent No.1 has changed her address. Time was sought for finding out the new address of Respondent No.1 on 11.6.2009. Fresh address has not been found and hence, the same is not supplied. Fresh service has been awaited. 3.It is seen that in a number of matters the services are not effected on time and the application for awaiting 3 service is made from time to time. In this case, the service has been effected and the Affidavit of service has been filed. Once an Appellant effects service, the provision of Section 385(1) is complied and the Appellant is entitled to be heard by the Court. Once the service is effected on the Respondent, the Respondent is obliged to attend the Court. Because the Respondent does not attend the Court as per his/her obligation, the Applicant is not bound and obliged to serve notices again and again. This becomes an endless procedure in most of the matters which is the main cause for delay. Since in this matter it is seen that the Applicant s Advocate has complied with the initial order dated 22.4.2008, natural justice demands that the Applicant be heard on admission of the Appeal. Hence, the Applicant is heard on merits. 4.Mr.Marwadi on behalf of the Applicant-Appellant has drawn my attention to the original document in the Record and Proceedings of the trial Court. It shows not only the 3 cheques issued by the accused (Respondent No.1 herein) but also the Bills of Exchange drawn by her and accepted by her husband. The Bills of Exchange, upon being duly proved, are marked Exhibits 14 to 16. 5.The defence of Respondent No.1 has been that she has 4 not been issued the cheques and that they have been forged. The cheques are shown to be for the exact amounts of the Bills of Exchange and are issued about 2 years after the Bills of Exchange were drawn. 6.The Applicant herein has also produced the Account Opening Form of Respondent No.1 in the two banks, upon which the cheques were drawn. These have been got produced under the Bankers Book Evidence Act through the officers of the respective banks. They bear, inter alia, the photographs of Respondent No.1. The Account Opening Form shows her signature which is identical with her signatures on the cheques as well as the Bills of Exchange. These documents produced under the Bankers Book Evidence Act along with the bank statement of Respondent No.1 carry a presumption as to their correctness. 7.The defence of Respondent No.1 is seen essentially to disown the legitimate liability. She contended that she was divorced from her husband and hence, did not know about his business transactions. She further contended that the cheques were forged. The cross- examination of Respondent No.1 shows that she was divorced from her husband in January 2000, but had met her husband in the MPID Court on 12.3.2003. She was not an accused in that case. The meeting of her ex- 5 husband is, therefore, a very telling circumstance. She has been shown in her cross-examination various other documents bearing her signatures. Exhibits 63 and 66 are some of those documents. She has deposed that those signatures are like her signatures. Exhibit-66, which is also an Account Opening Form of Abhyudaya Co- operative Bank Ltd., shows an identical signature. In view of these facts, the impugned judgment requires reconsideration. 8.Respondent No.1 having been served as aforesaid, the Appeal is admitted. 9.Issue notice to Respondent No.1. 10.The Applicant shall again serve the proceedings in this Appeal upon Respondent No.1 at the last known address by Registered Post and if not so served, by publication and file affidavit of such service. 11.Call for R & P from the trial Court. 12.The learned APP waives service on behalf of the State. [SMT.ROSHAN DALVI, J.] 6