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TMI Blog2006 (3) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for the first respondent-Official Liquidator that the appeal is not maintainable, in view of the bar created under section 483 of the Act itself. Section 483 of the Act deals with Appeals from orders, and according to the learned Counsel appearing for the first respondent-Official Liquidator, this section bars appeals, in cases where a person has been convicted in terms of section 454 of the Act. 3. On the other hand, the learned Counsel for the appellant submits that section 483 of the Act encompasses all sorts of orders passed by the Company Judges, and appeals are available against all those orders, which arise in the matters of winding up of the companies and an order of conviction for failure to file the statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that in criminal matters, if there is a conviction by the High Court, appeal lies to the Supreme Court in terms of section 374(1) of the Cr.P.C, whereas other High Courts were of the view that these words are exhaustive and would also cover the orders of conviction passed by the Company Courts. The judgment of Gujarat High Court being N. J. Tolia v. Official Liquidator Trimurthy Agro-Chemical Ltd. [1984] 56 Comp. Cas. 505 held as under : "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervation. We are independently coming to the same conclusion." (p. 507) 8. The judgment of Kerala High Court is a Division Bench judgment in C.S. Krishna Iyer v. Official Liquidator, High Court of Kerala [1985] 3 Comp. LJ. 472. While analyzing the Gujarat High Court judgment, N.J. Tolia s case ( supra ), the Division Bench of the Kerala High Court held as under : "Reliance is placed on the decision of the Gujarat High Court in Niranjan Jayantilal Tolia v. Official Liquidator, Trimurthy Agro-Chemical Ltd. (in liqn.) 56 Comp. Cas. 505 ; [1985] 3 Comp. LJ 468 , where a Division Bench held that no appeal will lie under section 483 of the Companies Act, against the decision in a criminal prosecution under section 454(5A) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter of the winding-up of a company is only to the Court to which appeals lie "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". We are, however, unable to agree with the view expressed by the Division Bench of the Gujarat High Court that a decision in a criminal prosecution under section 454(5A) of the Companies Act, is not one "in the matter of the winding-up of a company" and that it is only incidental to the winding-up. The statement of the affairs of the company referred to in section 454(1) of the Companies Act, is an essential requirement of the winding-up proceedings. A provision in the Act for enforcement of com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time as possible." 10. A reference has been given to a judgment of Punjab and Haryana High Court in the case of K.S. Mathura Dass v. State of Punjab [1977] 47 Comp. Cas. 467. In this case, the question was altogether different and the question that was considered by the Punjab and Haryana High Court was: "Whether in a prosecution under section 454 (5) of the Companies Act, the burden of proving that the accused had no reasonable excuse for making the default in respect of which he is being prosecuted lies upon the prosecution?" 11. The question before us was never raised in that case. 12. The learned Counsel for the appellant has also referred to a judgment of the Supreme Court in Stridewell Leathers (P.) Ltd. v. Bhanke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an appeal shall lie to the said High Court of Judicature at (Madras), (Bmb), Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subjects the superintendence of the said High Court and not being an order made in the exercise of a revisional jurisdiction, and not being the sentence or order passed or made in exercise of a revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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