Bansi Metal v. M.A.Metal Corporation & Ors.

..Plaintiff M.A.Metal Corporation and others. ..Defendants Mr.R.A.Shaikh, for the Plaintiff. Mr.Yusuf Iqbal Yusuf a/w Nevile Majra i/b Yusuf & Associates, for the Defendants. .......... .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 13th December, 2010. P.C. 1 This summary suit is filed on the basis of the dishonoured cheques. The details of the invoices including their dates, amount and cheques which have been issued, so also, the name of Bank and dates thereof are set out in paragraph No.5 of the plaint. There are four invoices and seven cheques in all, in the sum of Rs.25,35,000/-. It is stated that these cheques were presented and the Bank has dishonoured them with remark “account closed”. It is stated that the complaint under Section 138 of the Negotiable Instruments Act is filed and is pending. 2 In reply, the Defendants have pointed out that the cheques are forged. They have also raised an issue that even invoices are forged. It is stated that immediately upon receipt of notice of demand, a reply was sent raising plea of fraud and forgery. The Defendants approached local Police Station but finding that they are not taking any cognizance, a *2* sj.521.09.sxw private complaint was filed in the Court of Metropolitan Magistrate, 25th Court, Mazgaon, Mumbai. On perusal of the material, the learned Magistrate directed that action under Section 156(3) of the Code of Criminal Procedure be initiated. Requisite directions were issued to register the First Information Report and it is stated that same is now registered at the concerned Police Station. 3 Having perused the material produced before me with the assistance of the learned counsel for the parties, I am satisfied that bonafide dispute has been raised to the Plaintiff’s claim. Whether the cheques have been indeed issued or payments under the invoices are made are issues which are subject matter of the criminal proceedings. Once the issue of forgery and fraud is raised and bearing in mind the contents of the documents annexed to the affidavit in reply, triable issues arise for consideration. 4 In such circumstances, there will be unconditional leave to defend. The suit is transferred to the list of commercial causes with usual direction to file the Written Statement and with regard to discovery and inspection. The Summons for Judgment is, accordingly, disposed of. (S.C. Dharmadhikari, J)