9911796707
TMI Blog2003 (8) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... to file the statement of affairs of the Company. Despite extension of time the needful was not done. Thus, he filed a complaint alleging that the Directors were liable to be punished under section 454(5), read with (5A) of the Companies Act. 3. The complaint was considered by the learned Single Judge. Vide Order, dated September 24, 2002, the first appellant was convicted and sentenced to pay a fine of Rs. 25,000. The second appellant was held liable to pay a fine of Rs. 10,000. In case of default, they were to undergo sentence of simple imprisonment for a period of one year and six months respectively. 4. Aggrieved by the Order of the learned Single Judge, the two appellants filed an appeal under section 483 of the Act. When the appeal was posted for hearing before a Division Bench, an objection to its maintainability was raised in view of the provision contained in section 374(1) of the Code of Criminal Procedure. The Division Bench considered the matter. On behalf of the appellants, reliance was placed on a Division Bench Judgment of this Court in C.S. Krishna Iyer v. Official Liquidator 1985 KLT 942 to contend that the appeal was maintained under section 483 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial; may appeal to the High Court. (3) Save as otherwise provided in sub-section (2), any person, ( a )convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the First Class, or of the Second Class, or ( b )sentenced under section 325, or ( c )in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session." 8. This provision embodies sections 408, 410, 411 and 411A of the 1898 Code. Sub-section (1), with which we are concerned, broadly corresponds to section 411A. It provides for an appeal against conviction "on a trial held by a High Court in extraordinary original criminal jurisdiction". The expression extraordinary original criminal jurisdiction does not appear to have been defined anywhere. However, a reference to section 411A of the 1898 Code shows that a provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows that a person who makes default without reasonable excuse can be punished. Under sub-section (5A) the court, which appoints the provisional liquidator is entitled to take cognizance of the offence under sub-section (5). It was in exercise of the power under this provision that the High Court had exercised its jurisdiction. This was not "extraordinary original criminal jurisdiction". Thus, the case would not fall within the mischief of section 374(1) of the Code of Criminal Procedure. 12. The next question that arises is - What is the remedy of the person convicted under section 454(5) of the Act ? 13. Section 483 of the Companies Act provides as under : "483. Appeals from orders. 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 same court to which, in the same manner in which, and subject to the same conditions under which, appeals lie from any order or decision of the court in cases within its ordinary jurisdiction." A perusal of the above provision shows that a person aggrieved by any order made, or decision given has a right to file an appeal. The expression any order or decision is ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... results in denial of the right of appeal, has to be avoided. So construed, the appeal is clearly competent. 17. There is another aspect of the matter. There is a well-known rule of construction that the special law over rides the general. The Code of Criminal Procedure embodies the general rules regarding criminal proceedings. Section 4(2), as noticed above, shows that in case of offences under laws other than the Indian Penal Code, the procedure as prescribed in the Code has been expressly made subject to the "enactment. . . regulating the manner. . . or. . . dealing with such offences". This provision clearly indicates that the provisions of the Code have to be applied subject to those of the special law. In matters of offences under the Companies Act, the Act provides a special remedy under section 483. The principle of generalia specialibus non derogant is applicable. It protects the person s right under the special law. It must be given its full effect. 18. Lastly, even on precedent, we find that in a case like the present, the appeal under section 483 is maintainable. A Division Bench of this Court considered the matter in C.S. Krishna Iyer s case ( supra ). It ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
