TMI Blog2005 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Application No. 42 of 2004 (reported in 2004 CLC 1378) the learned Company Judge directed winding up of the Company after rejecting the plea of the Company that it had taken all necessary steps for its voluntary winding up. The said order dated 7-5-2004 was challenged by the Company in O.J. Appeal No. 30 of 2004. The Company, after realising that certain important evidences could not be produced before the learned Company Judge and certain facts if could be brought to the notice of the learned Company Judge, they may obtain an order in review, made a submission before the Division Bench that they be allowed to withdraw O.J. Appeal No. 30 of 2004 with a liberty to go to the learned Company Judge. Vide Order dated 2-7-2004, the permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records of the Registrar of Companies, it appeared that during the said period, in relation to the Company, no such documents were received. The learned Company Judge, after summarising the facts, observed that the appellant failed to make out any case for review. The Court observed that the applicant tried to build a case on the basis of non-existent document with the help of Shri Dhiren Dave. Company Secretary, and both of them have made factual averments on affidavit, which were prima facie untrue. After recording these findings, the learned Company Judge directed that the applicant (Shailendra Agrawal) and Shri Dave be prosecuted for the offence punishable under section 195 of the Code of Criminal Procedure, 1973 for committing an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch have been recorded against him and the said findings would be conclusive and the appellant, for all practical purposes, would be defenceless. His further submission is that when a Company Court exercises its powers to initiate the contempt proceedings or issues directions for registration of the offence or for filing of the complaint, it does not become a Criminal Court, but, continues to be a Company Court. 5. After taking us through the findings recorded by the learned Company Judge; it was vehemently argued that the appeal is maintainable. The submissions are that: ( a ) before any order, adverse to the interest of the appellant was made, an opportunity of hearing ought to have been given to him; ( b ) the appellant is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the accused before such Magistrate and bind over any person to appear and give evidence before such Magistrate. 7. The words, "any Court", would include each and every Court before which such offence relating to the documents has been committed. The language of section 340 is very clear where it says that the offence has been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court. A fair understanding of the phrase used in section 340 would make it clear that if the offence is committed in any Court, the said Court can direct filing of a complaint. The Court can also direct filing of the complaint if it is in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged in an appeal under section 483. Even otherwise, section 341 would make the present appeal incompetent because against the rejection of the prayer for filing of the complaint, an appeal shall lie to a Court to which ordinarily appeal lies from the order of the said Court. Ordinarily, an appeal against the order of the learned Single Judge shall not lie to the Division Bench of the High Court when he exercises its criminal powers for directing prosecution of someone. The learned Single Judge would not be subordinate to the High Court. Under the circumstances, the appeal relating to the direction for prosecution would not be maintainable. 8. So far as maintainability of the appeal, challenging the initiation of the contempt proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings may not be looked into. He also submitted that the learned Company Judge directed for holding an inquiry and, therefore, the observations made by us that the appellant is directed to be prosecuted or proceeded with under the Contempt of Courts Act, may be contrary to the records. If the submission made by the learned Counsel for the appellant is accepted, then, the appeal will have to be thrown at the threshold because such an order cannot be challenged before this Court. At this stage, we would also again refer to paragraphs 35 and 36 of the impugned order. The learned Company Judge had observed that both these persons are liable to be proceeded with. If the learned Company Judge, to be sure on the point, observed that an inquiry be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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