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TMI Blog1984 (9) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... t competent. The other side has entered appearance and has contended that the appeal before us is not competent and, therefore, ought not to be entertained. In support of this, a decision of a Division Bench of this court in O.J. Appeal No. 15 of 1981 arising from company Application No. 178 of 1980 has been cited. The appeals arise from the judgment of our learned brother A.M. Ahmadi J. in Criminal Miscellaneous Application No. 1279 of 1979 in Company Petition No. 37 of 1977," (Official Liquidator, Trimurthy Agro-Chemical Ltd. v. Niranjan Jayantilal Tolia [1984] 56 Comp. Cas. 380 (Guj.)). The company judge, by the judgment under appeal, convicted accused Nos. 1, 2 and 4 under sub-section (5) of section 454 of the Companies Act, 1956, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Patent of the High Court excludes from the scope of an appeal under that clause a judgment passed in exercise of criminal jurisdiction. On that score, the learned judges in that case declined to entertain the appeal. As a judgment passed in criminal jurisdiction, there is no scope for appeal against the decision of the learned single judge. But, it is contended that section 483 of the Companies Act would enable an appeal to be entertained by the Division Bench and, therefore, apart from any appeal under the power of the Letters Patent, the court could entertain the appeal. Section 483 of the Companies Act reads : "Appeals from any order made, or decision given, in the matter of the winding up of a company by the court shall lie to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to punishment. Sub-section (5A) deals with the procedure relating to prosecution. The question for our consideration, in the context of the scheme in which section 454 appears, is whether the proceedings under section 454(5A) culminating in a decision can be subjected to an appeal under section 483 of the Companies Act. There are various matters concerning winding up dealt with in Chapter II. Some of them are part of the winding up process, others are incidental to winding up. Whether section 483 will cover all matters including a decision in a criminal prosecution, is a question which has to be considered in the light of the language of section 483(1). That enables appeals against any order made or decision given in the matter of a windin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court and the court had no occasion to consider the same. As such, the said decision may not be of much assistance.
In the above view, the appeal would not be maintainable under section 483 of the Companies Act also. Therefore, the appeals are rejected. The bail bonds shall stand cancelled. Time to surrender one month.
Counsel for the appellants in both the cases make an oral application under section 134A of the Constitution for certificate of leave to appeal to the Supreme Court. In view of the importance of the question and in view of the fact that there is no considered precedent on the matter, we certify this case as fit for appeal to the Supreme Court under article 134(1)(c) of the Constitution. X X X X Extracts X X X X X X X X Extracts X X X X
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