Bilal Nazki, J.
1. This appeal has been filed against an order passed by 1 the learned company judge in an application filed under Section 454(5) of the Companies Act, 1956 (for short 'the Act'). The company court found the appellant guilty and sentenced him with fine of Rs. 100 for each day's default. In all, he was fined with Rs. 3,12,00.
2. A preliminary objection is raised by learned Counsel 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 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, learned Counsel for the appellant submits that Section 483 of the Act encompasses all sorts of orders passed by the company judge, 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 of affairs after winding up is a matter, which comes under Section 483 of the Act.
4. Several judgments have been cited by learned Counsel for the parties at the Bar.
5. The Gujarat High Court has taken the view that an appeal of the nature of the present appeal is not maintainable whereas the High Court of Kerala, and the High Court of Delhi have taken a different view that the appeal was maintainable.
6. We have gone through the judgments to which a detailed reference shall be made hereinafter and we have found that all the courts have tried to interpret the words 'in the matter of the winding up of a company by the court' as they appear in Section 483 of the Act. Before analysis of this provision and before a reference is made to the judgments referred to above, it would be necessary to reproduce Section 483 of the Act:
Appeals from any order made, or decision given before the commencement of the Companies (Second Amendment) Act, 2002 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.
7. Broadly speaking, the High Court of Gujarat was of the view that the words 'in the matter of the winding up of a company by the court' would not encompass in itself the orders, which were passed under Section 454(5) of the Act, particularly, in view of the fact 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 Code of Criminal Procedure, whereas the 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 the Gujarat High Court being Niranjan Jayantilal Tolia v. Official Liquidator, Trimurthy Agro-Chemical Ltd. [1984] 56 Comp Cas 505 : [1985] 3 Comp LJ 468 held as under (page 507):
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 winding up of a company. In the matter', indicates not 'incidental to' the winding up but is 'part of the winding up itself. While non-compliance with obligations 'in the matter of winding up' have been made punishable under the provisions of the Chapter and the procedure thereof prescribed, proceedings for imposing such punishment being matters 'incidental to' the winding up cannot be said to be a 'part of the winding up process itself. Evidently, orders contemplated under Section 483 are matters 'in the matter of the winding up of a company, which, according to us, would exclude a decision in a prosecution under Section 454(5A). Though our attention was sought to be drawn to the Commentary of Ramaiya, Tenth Edition, 1984, wherein the learned author at page 978 mentions that the order or decision must be one pertaining to, or within the scope of, the winding up jurisdiction, and anything outside that jurisdiction, though it may have arisen out of it, such as a prosecution sanctioned by the judge in the winding up proceeding, will not come within the scope of this section, we are not basing our decision on this observation. We are independently coming to the same conclusion.
8. The judgment of the Kerala High Court is a Division Bench judgment reported in C. S. Krishna Iyer v. Official Liquidator, High Court of Kerala [1985] 3 Comp LJ 472. While analyzing the Gujarat judgment Niranjan Jayantilal Tolia v. Official Liquidator, Trimurthy Agro-Chemical Ltd. [1984] 56 Comp Cas 505 : [1985] 3 Comp LJ 468 the Division Bench of the Kerala High Court held as under (page 475):
Reliance is placed on the decision of the Gujarat High Court in Niranjan Jayantilal Tolia v. Official Liquidator, Trimurthy Agro-Chemical Ltd. [1984] 56 Comp Cas 505 : [1985] 3 Comp LJ 468, where a Division Bench held that no appeal will lie under Section 483 of Companies Act, against the decision in a criminal prosecution under Section 454(5A) of the Act. Poti C. J., on behalf of the Bench stated at page 507:
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 winding up of a company. 'In the matter', indicates not 'incidental to' the winding up ; but is 'part of' the winding up itself. While non-compliance with obligations 'in the matter of winding up' have been made punishable under the provisions of the Chapter and the procedure thereof prescribed, proceedings for imposing such punishment being matters 'incidental to' the winding up, cannot be said to be a 'part of' the winding up process itself. Evidently, orders contemplated under Section 483 are matters 'in the matter of the winding up of a company' which, according to us, would exclude a decision in a prosecution under Section 454(5A). The learned judge has referred to an unreported decision of a Division Bench of the same High Court wherein it has been held that Clause 15 of the Letters Patent excludes from its scope an appeal against the judgment passed in exercise of criminal jurisdiction. If an appeal to a Division Bench from a single judge in the exercise of criminal jurisdiction does not lie, Section 483 of the Companies Act will be of no avail even on the wording of the section itself. An appeal under Section 483 from any order or decision in the matter 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 compliance to Sub-section (1) of Section 454 is, therefore, a matter arising in the winding up of the company and not merely incidental or ancillary thereto.
9. There is a Full Bench judgment also from the Kerala High Court reported in P. George Philip v. Official Liquidator [2004] 120 Comp Cas 444 : [2004] 4 Comp LJ 193. In this judgment also, the court analysed the provisions of the Companies Act and also of the Criminal Procedure Code and came to the conclusion that (page 449):
The ambit of Section 483 does not admit any such restricted construction. The expression in the matter of winding up' is wide enough in all orders, which are incidental to the winding up. Section 454 of the Act entitles the official liquidator to ask for a statement of affairs of the company and the failure to comply with the court's orders entails penal consequences. The order of conviction is not merely incidental to the winding up proceedings, but is a part of the winding up of the company.
10. Reference was also made to a judgment of the Full Bench of the Delhi High Court in Official Liquidator, Security and Finance (P.) Ltd. v. B.K. Bedi [1974] 44 Comp Cas 499. In this case, the High Court held (page 502):
It cannot admit of any doubt that the object of Section 454 requiring the person concerned with the company at the relevant time to submit the statement of affairs is a laudable one and is obviously with a view to facilitate the winding up proceedings by the official liquidator by seeing that full information is made available to it in as short a time as possible.
11. A reference has been given to a judgment of the 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 (page 470):. 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
12. The question before us was never raised in that case.
13. Learned counsel for the appellant has also referred to a judgment of the Supreme Court reported in Stridewell Leathers P. Ltd. v. Bhankerpur Simbhaoli Beverages P. Ltd. : AIR1994SC158 .
14. We do not think that this judgment is directly applicable to the facts of the case. We have reproduced Section 483 of the Act hereinabove. The judgments which have been relied upon by the parties have not at all considered the import of the words '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.' In our view, these are the crucial words in Section 483 of the Act, which would decide whether the High Court can entertain appeals from an order of the learned company judge. The words 'in the matter of winding up of company' are not as crucial as the words referred to by us hereinabove. The High Court is one entity and a single judge's judgment in exercise of his ordinary jurisdiction is appealable only under the Letters Patent and, in our view, all that Section 483 of the Act provides is that appeals would lie to the same court against the judgment or order passed by the company judge subject to the conditions and in the same manner in which appeals lie to the High Court while the High Court itself exercises its ordinary jurisdiction. Therefore, Section 483 makes the Letters Patent applicable, and Clause 15 of the Letters Patent 1865, lays down as under:
15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction- And we do further ordain that an appeal shall lie to the said High Court of Judicature at (Madras), (Bombay), 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 subject to 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 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 judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that not withstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one judge of the said High Court or one judge of any Division Court, pursuant to Section 108 of the Government of India Act, made [on or after the first day of February 1929,] in the exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of judges to the said High Court or of such Division Court shall be to us, our heirs or successors in our or Their Privy Council, as hereinafter provided.
15. There is no dispute that the Letters Patent do not follow any appeal to be filed against an order passed by the learned single judge in exercise of criminal jurisdiction1. Therefore, in our view, for these reasons, the appeal is not maintainable.
16. After the jurisdiction, there is another aspect to Section 454(5A) of the Companies Act. After cognizance of an offence is taken in terms of this section, the court has to try the offence in accordance with the procedure laid down in the Code of Criminal Procedure and it has to follow the procedure laid down for the trial of summons cases by magistrates.
17. At this stage, learned Counsel for the appellant requested for grant of time because the appellant is admitted in hospital. In the interest of justice, we grant him two months time to comply with the orders.
18. Appeal is, accordingly, dismissed. No costs.