1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.850 OF 2009 1. Shri Hasmukh s/o Tarachnd Seth age 56 years, occup. business, r/of Plot No.B-6, 10th Road, Juhu, West, Mumbai. 2. Shri Aswin s/o Tarachand Seth, Age 53 years, occup. business, r/of as above. 3. Shri Vinod s/o Tarachand Seth, age 54 years, occup. business, r/of as above. ..Petitioners. versus 1. Ishwarchand Vasisthanarayanchand Jha, age major, occupation Nil, r/of Flasco Film Society, Rh-38, Bajaj Nagar, Aurangabad. 2. Sakharam Sitaram Lad, age major, occupation Nil, r/o Shri Ganeshay Namah Hou.Soc. Rh-16, Room No.32, Bajaj Nagar, Aurangabad. 3. Sanjay Rangnathrao Kolekar, age major, occupation Nil, r/of c/o Prasad Collection, A/18, Cidco Road, Jai Bhawani Nagar, Aurangabad. 2 4. Subhash Shirram Tambole, age major, occupation Nil, r/o c/o Prasad Collection, A/18, Cidco, Road, Jai Bhawani Nagar, Aurangabad. 5. Eknath Sakharam Jadhav, age major, occupation Nil, r/of New Akankshya Hou.Soc. Rm-69/4, Bajaj Nagar, Aurangabad. 6. Sayyad Hamid Sayyed Kasim, age major, occupation Nil, r/o Galli No. 6, Baijipura, Aurangabad. 7. Sanjay Nanasaheb Kolhe, age major, occupation Nil, r/o Mayuri, Indira Nagar, Taluka Shrirampur, District Ahmednagar. 8. Soham Yadavrao Gade, age major, occup. Nil, r/o Vitthal Kripa, Gajanan Nagar, Tulza Bhavani Temple, Aurangabad. 9. Kashinath Dattatraya Ahirrao, age major, occupation nil, r/o Trimurti Nagar, Kamlapur Rd. Ranjangaon (Sh.) Taluka Gangapur, District Aurangabad. 10. Kakasaheb Bhausaheb Gorde, age major, occupation Nil, r/o at post Balanagar, Taluka Paithan, District Aurangabad. 11. Shaikh Gani Shaikh Chandu, age major, occupation Nil, r/o Prasad Collection, A-18, Cidco, Road, Jai Bhawani Nagar, Aurangabad. 3 12. Sunil Padmakar Gosawi, age major, occupation Nil, r/o Mayur Park Road, Jadhav Wadi, Aurangabad. 13. Sanjay Dattatraya Lavand, age major, occupation Nil, r/o c/o K.S.Pressing, Road No.10, Swarn Laghu Udyog, Kamgar Chowk, Waluj M.I.D.C. area, Aurangabad. 14. Mohan Kaniram Rathod, age major, occupation Nil, r/o Trimurti Nagar, Kamlapur Road, Ranjangaon (Ss.) Taluka Gangapur, District Aurangabad. 15. Subhas Ramdas Tambe, age major, occupation Nil, C/O M.K.Rathod,Trimurti Nagar, Ranjangaon (Sh.) Taluka Gangapur,Dist. Aurangabad. 16. Balasaheb Bajirao Sobale, age major, occupation Nil, ir/of Rh-67/3 Indraprastha Colony, Bajaj Nagar, Aurangabad. 17. Ashok Kalyanrao Avahale, age major, occupation Nil, r/of New Sarang Housing Society, Bajaj Nagar, Aurangabad. 18. Kailash Annasaheb Ingle, age major, occupation Nil, r/of New Sahyadri Housing Society, Rx-2, Room No.26, Bajaj Nagar, Aurangabad. 19. Ramesh Sandu Jadhav, age major, occupation Nil, r/of near Tulza Bhawani Temple, Gajanan Nagar, Aurangabad. 4 20. Manik Umaji Kasabe, age major, occupation Nil, r/of Hrishiraj Mens Wear, Pundlik Nagar,Aurangabad. 21. Rajendra Arjunrao Choudhary age major, occupation Nil, r/of Tribhuwan Housing Society, Rh.-41/8, Bajaj Nagar, Aurangabad. 22. Subhash Laxman Dange, age major, occupation Nil, r/of Trimurti Nagar, Kamalapur Road, Ranjangaon (Sh) Taluka Gangapur, Dist.Aurangabad. 23. Gorakhnath Baburao Sangale, age major, occupation Nil, r/of House No.R-26, Raigad Nagar, Baliram Patil High School Road, Aurangabad. 24. Kisan Kashinath Kuntule, age major, occupation Nil, r/of Rx-6/16/2, Mahlaxmi Hsg. Society, Ayodhya Nagar, Bajaj Nagar, Aurangabad. 25. Vivek Pralhad Vadorkar, age major, occupation Nil, r/of Pranjali Electronics, Maharana Pratap Chowk, Bajaj Nagar, Aurangabad. 26. Ravindra Narayan Patil, age major, occupation Nil, r/of Prasad Collection, A-18, Cidco Road, Jai Bhawani Nagar, Aurangabad. 27. Narendra Bhaurao Tribhuvan, age major, occupation Nil, r/of at post Wadgaon Ko. Taluka & Dist.Aurangabad. 5 28. Hajari Prasad, age major, occupation Nil, r/of Trimurti Nagar, Kamlapur Road, Ranjangaon (Sh), Taluka Gangapur, Dist.Aurangabad. 29. Vikram Bhimrao Hulmukhe, age major, occupation Nil, r/of Shree Ganeshay Namah Hsg. Society, Bajaj Nagar,Aurangabad. 30. Ishwar Shivram Choudhary, age major, occupation Nil, r/of Rm-303/1,Bajaj Nagar, Aurangabad. 31. Walmik Kalyanrao Avhale, age major, occupation Nil, r/of Tribhuvan Hsg.Society, Bajaj Nagar, Aurangabad. 32. Diwakar Madhukar Deshpande, age major, occupation Nil, r/of Vyankatai Mata Mandir, Jai Bhawani Nagar,Aurangabad. 33. Atul Suryakant Kulkarni, age major, occupation Nil, r/of c/o Prasad Collection, A-18, Cidco Road, Jai Bhawani Nagar, Aurangabad. 34. Vilas Sonaji Kolate, age major, occupation Nil, r/of Sarang Housing Society, Rx-6/10, Bajaj Nagar, Aurangabad. 35. Sudhakar Vithoba Kakade, age major, occupation Nil, r/of Trimurti Nagar, Kamlapur Rd. Ranjangaon (Sh.) Taluka Gangapur,Dist.Aurangabad. 36. Prakash Appasaheb Shinde, age major, occupation Nil, r/of Rm-303, Bajaj Nagar, Aurangabad. 6 37. Sominath Punjaba Suradkar, age major, occupation Nil, r/of Metre Coaching Classes, Siemens Housing Society, Bajaj Nagar, Aurangabad. 38. Dilip Kisanrao Bhavekar, age major, occupation Nil, r/of Ganeshay Namaha Hsg.Soc., Rh-16, Bajaj Nagar,Aurangabad. 39. Vijay Bhanudas Jadhav, age major, occupation Nil, r/of Ganeshay Namaha Hsg.Soc. Rh-16, Bajaj Nagar,Aurangabad. 40. Gajanan Tulshiram Hiwale, age major, occupation Nil, r/of c/o Gadekar, Galli No.__ Sanjay Nagar, Aurangabad. 41. Ranganath Dalpan Pawar, age major, occupation Nil, r/of near Tulza Bhavani Temple, Gajanan Nagar, Aurangabad. 42. Santaram Bhoge, age major, occupation Nil, r/of Plot No.54,Chatrapati nagar, Bajaj Nagar, Aurangabad. 43. Balkrishna Annasaheb Katare, age major, occupation Nil, r/of behind Sunil Electricals, near Shivaji Statue, Cidco, N-4, Aurangabad. 44. Kishori Chandramohan Mishra, age major, occupation Nil, r/of Maitraiya Coaching Classes, Siemens Housing Society, Bajaj Nagar, Aurangabad. 45. Bhagwat Sitaram Shelke, age major, occupation Nil, r/of new Hanuman Nagar, Galli No.2, Plot No.267, Aurangabad. 7 46. Dattatraya Uttamrao Deshmukh, age major, occupation Nil, r/of NRB Housing Society, Rm-245/10, Bajaj Nagar, Aurangabad. 47. Sanjay Hiralal Lohar, age major, occupation Nil, r/of Sneha Sahayog Hsg.Soc. Rm-70/9, Bajaj Nagar, Aurangabad. 48. Babasaheb Kaduba Misal, age major, occupation Nil, r/of behind Sunil Electricals, Shivaji Statue, N-4,Aurangabad. 49. Shrisundar Genuji Bakne, age major, occupation Nil, r/of behind Sunil Electrical, near Shivaji Statue, N-4, Aurangabad. 50. Shivram Bandu Jadhav, age major, occupation Nil, r/of behind Sunil Electrical, near Shivaji Statue, N-4, Aurangabad. 51. Shivaji Dattatraya Jagdale, age major, occupation Nil, r/of Ajanta Polymer, Waluj, I.A., Aurangabad. 52. Suresh Punjaba Khute, age major, occupation Nil, r/of Dattakrupa Hsg.Society, Rx-4/10, Bajaj Nagar, Aurangabad. 53. Uttam Rabhau Ingale, age major, occupation Nil, r/of Omkar Housing Society, Rx-13/7, Bajaj Nagar, Aurangabad. 8 54. Shyamrao Bansi Rathod, age major, occupation Nil, r/of Salampure Plotting, beside Wadgaon Kol., Pandharpur, Aurangabad. 55. Rustum Baburao Deshmukh, age major, occupation Nil, r/of Trimurti Nagar, Kamalapur Road, Ranjangao (Sh), Tq.Gangapur, District : Aurangabad. 56. Madhukar Dagdu Mankar, age major, occupation Nil, r/of at post Gangapur (Nehri), District Aurangabad. 57. Bhaskar Bhaurao Shelke, age major, occupation Nil, r/of New Hanuman Nagar, Galli No.2, Plot No. 267, Aurangabad. 58. Ratilal Prakash Jadhav, age major, occupation Nil, r/of Raigad Nagar, Baliram Patil High School,Aurangabad. 59. Shaikh Mubarak Gaffurbhai, age major, occupation Nil, r/of Galli No.5, Baijipura, Aurangabad. 60. Manoj Madhav Kamble, age major, occupation Nil, r/of Sindhiban, near Brandi Company, Chikhalthana I.A., Aurangabad. 61. Ganesh Kakasaheb Thale, age major, occupation Nil, r/of beside LIC Agent Danve's House, Ruvsat Hsg. Society, Aurangabad. 9 62. Sanjay Shivram Kere, age major, occupation Nil, r/of plot No.15,Jayshri Colony, Mukundwadi, Aurangabad. 63. Tukaram Bapurao Borse, age major, occupation Nil, r/of H.No.5, Ayodhya Nagar, Aurangabad. 64. Sudhakar Ravan Shinde, age major, occupation Nil, r/of Salampure Plotting, beside Wadgaon Kolhati, post Pandharpur,Dist.Aurangabad. 65. Bhartarinath Vishnu Mahajan, age major, occupation Nil, r/of Omkar Housing Society, Rx-13/7, Bajaj Nagar, Aurangabad. --------- Shri R.B. Muley, Advocate for the petitioners. Shri F.R.Tandale, Advocate for the Respondents. --------- Coram: P.R.Borkar, J. Date : December 19, 2009. ORAL JUDGMENT 01. This is a writ petition by original accused Nos.2 to 4 in S.C.C. No. 1277 of 2005, being aggrieved by the order dated 21.7.2007 passed by learned 5th 10 Judicial Magistrate, First Class, Aurangabad, issuing process against them under Section 138 of the Negotiable Instruments Act 1881, which order is confirmed by the learned Additional Sessions Judge-1, Aurangabad, in Criminal Revision No.339 of 2007 decided on 11.8.2009. 02. Some of the facts giving rise to this petition and which are undisputed at this stage are that present Respondent Nos. 1 to 65 are the original complainants in S.C.C. No.1277 of 2005 filed under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short) as against M/s Vishnu Vijay Packages Limited, present three petitioners and one more person. It is alleged that the said M/s Vishnu Vijay Packagers Ltd. is a company incorporated under the Companies Act, 1956. (Hereinafter referred to as "the said Company"). The said company had issued cheques dated 29.9.2004 drawn on H.D.F.C. Bank Ltd., Mumbai in favour of the Respondents-complainants towards their various legal dues which the said company owed to the present respondents. When the respondents presented those cheques to the respective banks wherein they were having their bank savings bank accounts, those cheques were dishonoured with 11 endorsement "Accounts closed". It is further stated that the cheques were issued by the said company- accused No.1 in favour of the Respondents-complainants in discharge of its liability flowing from the agreement dated 3.10.2003 towards full and final settlement of the legal dues owed by it to the Respondents. Cheques having been dishonoured, the Respondents issued notice dated 17.12.2004 to the said company, through their Advocate. However, in spite of notice, payment was not made by the said company and, therefore, complaint S.C.C. No.1277 of 2005 is filed by the Respondents. In so far as present petitioners are concerned, in paragraph 6 of the said criminal complaint, following pleadings were made. "6. The Company, Accused-1, and the Directors, accused-2 to 5 above named, are jointly and severally responsible for the debts to the Complainants, and also for discharging the liability flowing from the cheques issued to the Complainants. They are also guilty of the Offence contemplated under the Negotiable Instruments Act for (non) satisfaction of the claims arising therefrom." 03. After the said criminal complaint was filed, the learned trial judge raised doubt whether a common complaint of 65 complainants would be tenable and thereafter he heard Advocate for the complainants- 12 respondents herein and passed order on 1.11.2006 and directed the complainants to deposit court fees which appears to have been paid and thereafter order of issuance of process was passed on 21.7.2007 which is under challenge in this writ petition. 04. Heard Shri R.B. Muley, learned Advocate for the writ petitioners and Shri F.R. Tandale, learned Advocate for the Respondents. 05. Rule. By consent of the learned Advocates for the parties, rule made returnable forthwith and the writ petition is heard finally at the admission stage. 06. Shri Muley, learned Advocate for the petitioners canvassed before this court that the order of issuance of process was illegal and improper because, unless there are necessary pleadings in the complaint as required under Section 141 of the said Act, no process can be issued against the accused. Secondly, he also submitted that all the three writ petitioners have given their replies to the notices issued by the Advocate for the Respondents- complainants. It is submitted that Petitioner No. 2 13 had resigned as a director of the said company in the year 2002 and as such he was no more concerned with the the business or affairs of company. Other two Petitioners, namely, Petitioner Nos. 1 and 3 have replied that the said company was under liquidation and the Official Liquidator had been appointed as provisional Liquidator and had taken over charge of the said company much before issuance of the alleged cheques and as such petitioner Nos. 1 and 3, for that reason, were not responsible for dishonour of the cheques and the complaint is not tenable against them. It is also submitted on behalf of the Petitioners that for filing complaint, sanction under Section 446(1) of the Companies Act, 1956 ought to have been taken which is not done by the Respondents-complainants and, therefore, entire proceedings stand vitiated. Faintly, there was also argument about the joint trial of all the complaints filed by different complainants. 07. On the other hand, Advocate Shri F.R.Tandale for Respondents-complainants submitted that paragraph 6 of the complaint contains necessary pleadings. He also submitted that although the company being under liquidation is admitted, exact scope of jurisdiction of the liquidator appointed is not brought on record. 14 Advocate Shri Tandale also submitted that it is necessary to record evidence regarding responsibility and liability of the petitioners before deciding legality or impropriety of the order issuing process. He also submitted that Section 446 of the Companies Act is not applicable to the criminal proceedings under Section 138 of the Act. Advocate Shri Tandale supported the finding of the learned Magistrate that joint trial of complaints filed by different complainants is permissible since those complaints arise in the course of same transaction. 08. Separate replies to statutory notice by Advocate of the Respondents were given by petitioner No.1 and 3 on 4.1.2005 which are at pages 21 and 24 of the writ petition. By the replies, it is informed to the Advocate of the Respondents that the petitioners were no more directors or employees of the said Company as per the order of the High Court dated 27.4.2001. It is further stated that by virtue of the said order, the High Court has superseded the Board of Directors and management of the said company and appointed Official Liquidator as provisional liquidator of the company to take possession/charge of the company and its assets and, therefore, 15 petitioner Nos. 1 and 3 are not liable for any payment due from the company or for any cheques issued on behalf of the company. The copy of of the said High Court order was enclosed to the replies. Petitioner No.2 also on the same day i.e. 4.1.2005 replied to the notice of Advocate of the Respondents, stating that he was no more director of the said company as he had resigned from directorship on 31.1.2002 and thus disowned responsibility or liability for any payment to be made, or cheques issued by the said company. Along with reply, petitioner No. 2 enclosed the copies of his resignation letter, Form-32 filed with the Registrar of Companies (ROC) and the receipt of the Registrar of Companies.It is submitted on behalf of the Petitioners that these documents were not considered by the revisional court while dismissing revision of the present petitioners against the order of the learned Magistrate, issuing process against them. It is also submitted that the above said replies were not even remotely referred or contradicted in the complaint filed on 10.1.2005 though acknowledgments show that replies were received on 8.1.2005 by the Advocate. 16 09. The copy of the order of the High Court dated 27.4.2001 passed in Company Application LD No. 242 of 2001 in Company Petition No.345 of 2001, is produced in this writ petition at pages 25 to 28. That was an application by Oman International Bank against the accused No.1. By the said order, the learned Single Judge granted leave under Rule 19(3) of the Companies Court Rules, 1959 to take out an application in terms of the draft handed in. The learned Judge observed that having regard to outstanding dues by the company not merely towards the petitioner, but other financial institutions and the other circumstances referred to in earlier part of the said order, a case for appointment of provisional liquidator in respect of the said company was made out. It is further noted in the said order that notice of the said company application was served upon the Respondent i.e. Vishnu Vijay Packagers Ltd. but it did not remain present when the said order was passed. Accordingly, order in terms of prayer clause (a) of the said company application was passed and it was directed that until the Provisional Liquidator takes charge, there shall be an order of injunction in terms of prayer clause (b). 17 10. It is submitted that prayer clauses (a) and (b) of the said company application which are referred to in the said order are not before this court. However, from above referred order, one thing is clear that there is appointment of the Provisional Liquidator in respect of the company Vishnu Vijay Packagers Ltd. At page 51 of the petition, the petitioners produced the copy of the notice issued by the Official Liquidator, High Court, Bombay, to M/s Vishnu Vijay Packagers Ltd. (in provisional liquidation) which appears to be dated 09.11.2002. The minutes recorded on 12.11.2002 at the time of taking possession of the said company by the Official Liquidator in terms of the order of the High Court dated 27.4.2001 passed in above referred Company Application No. 242 of 2001 are produced on record. By the said notice, the Official Liquidator informed the said company that he had been appointed as provisional liquidator and had taken over the possession thereof. It is further made clear in the said notice that any one tampering with seal or interfering with the possession of the said premises and its assets in any manner will be dealt with in accordance with law. Thus, it is, therefore, clear 18 that in November 2002 the Official Liquidator has been appointed as Provisional Liquidator of the said company and there is no dispute regarding the same. 11. At page 52 of the petition, there are minutes recorded on 12.11.2002 at the time of taking possession of said company M/s Vishnu Vijay Packagers Limited (in provisional liquidation).The minutes record that the premises of the said company at Aurangabad were taken possession of by the officers of the Official Liquidator in presence of police officials, so also representatives of Oman International Bank S.A.O.G., State Bank of India. It appears that one Mr.Bipin Shah was present and initially, he had raised some objection to possession of the company being taken, but subsequently he opened the gate of the company and allowed taking over possession of the said company and its assets. The Minutes produced on record indicates that those are signed by said Bipin Shah. But, none of the petitioners were signatories to the same. Thus, it is argued on behalf of the Petitioners before this court that after November 2002, the Board of Directors of said company was not in charge of the management and affairs of the company and as such the petitioners 19 cannot be held liable for dishonour of the cheques which were issued on 29.9.2004. 12. At page 56 of the petition, there is a copy of agreement arrived at between the management of the said Company and the union of present Respondents- complainant, namely, Panther Power Kamgar Sanghatana. The agreement is a result of discussion between the management of the company and the representatives of the Union held on 2.10.2003 and 3.10.2003. By the agreement, it was agreed that all cheques given on 31.7.2003 to the workers would be returned by them on or before 15.12.2003 and any proceedings or action filed under Section 138 of the Act in respect of the said cheques would be stayed till 15.12.2003. The agreement states that in all 63 workers would be paid compensation of Rs.80,00,000/= in three installments. On behalf of management, though name of petitioner No. 1 is mentioned in the said agreement, it is stated that he has not signed the said agreement. However, on behalf of management, three persons Sarvashree V.H.Shah, A.D.Kulkarni and Sanjay Seth appear to have signed the agreement, whereas on behalf of the union, there are signatures of several persons. 20 13. On behalf of Respondents-complainants affidavits-in-reply to the writ petition, so also additional affidavits in reply are filed. Along with the affidavit dated 17.12.2009, under list of documents, four documents are produced. Those are, copies of the notice dated 31.7.2003 and letters dated 7.12.2003, 25.2.2004 and 30.6.3004 at Exhibits R-1, R-2, R-3 and R-4 respectively. The notice mentions that from 7.5.2003, as per the order of the High Court, the Official Liquidator has taken over possession of the factory and the same is closed. It is also mentioned therein that although various attempts have been made, the factory could not be restarted and yet for the last three months the workers were paid their salaries without work. By the said letter, notice was given to all the workers terminating their services and they were informed that cheques of compensation, as also for their salaries for the months of June and July 2003 were sent on the address of the Union, since personal addresses of the workers were not available with the said company. 14. Exhibit R-2, is a letter dated 7.12.2003 addressed by authorised representative of the said 21 company to the Committee Members of the Union i.e. Panthar Power Kamgar Sanghatana, Aurangabad, stating that as per the discussion held on 7.12.2003 with regard to payment of full and final settlement of claims of 68 members, certain points were mutually agreed which are as under; "1. All the members will be given post dated cheques of an amount unpaid from the total amount of full and final settlement i.e. Rs.80 lakhs for 63 members and on similar basis payment to be made to other 5 members. At the same time all the members will return earlier cheques issued to them vide letter dtd.31/07/2003. 2. Starting from 1st December 2003, all the members will be paid an amount equal to 75% of last drawn wages for three months, on the date of ceasing of employment on 31/07/2003. Such payment of 75% wages will be made on 10th of each month. For example payment of December 2003, will be made on 10th January, 2004 and likewise. 3. At the time of payment of full and final settlement amount on 25/02/2004, the payment of that current month has to be made in cash also. 4. Till the full and final settlement amount is made to each individual all the above members are permitted to sit peacefully in the premises of Akar Laminators Ltd. (Unit-I), B-73, MIDC, Waluj." 22 15. At Exhibits R-3 and R-4, are the letters on behalf of the said company to the Members of the Committee of the Union, informing that as per the settlement, it was not possible for the company to make payment and, therefore, extension of time was sought. Admittedly, none of these notice and letters at Exhibits R-1 to R-4 is signed by any of the present petitioners. 16. It is submitted on behalf of the petitioners that for filing complaint against the company, sanction under Section 446(1) of the Companies Act was necessary but no such sanction is obtained by the complainants-Respondents. So far as sanction under Section 446 (1) of the Companies Act is concerned, the Section lays down that when a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceedings shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the [Tribunal] and subject to such terms as the [Tribunal] may impose. 23 17. Both sides have relied upon certain authorities in support of their submissions. On behalf of petitioners, reliance was placed on unreported judgment of learned Single Judge of this court in Criminal Application No.245 of 1997 [Suresh K. Jasani vs. Mrinal Dyeing & Manufacturing Co.Ltd. and ors.] decided on 13.2.2007, the copy of which is made available by the learned counsel for the petitioners. It has been observed in the said judgment that, Respondent No.1-company has been wound up as per the order of Gujarat High Court and, therefore, liquidator was appointed. Record revealed that notice was served on the official liquidator, but nobody appeared on behalf of the official liquidator nor for respondent nos. 2 to 8 who were the original accused. Therefore, after hearing the learned Advocate for the revision applicant and learned A.P.P. and referring to Section 446(1) of the Companies Act, the learned Judge held that "other legal proceedings" include proceedings under Section 138 of the Negotiabale Instruments Act and that there leave under Section 446(1) of the Companies Act was not obtained before filing those proceedings under Section 138 of the Act. In the circumstances, the revision application was dismissed. 24 18. Single Judge Bench of this Court in Firth (India) Steel Co. Ltd. (in liquidation AIR 1999 Bombay 75, has discussed various authorities in paragraphs 9 and 10 of the judgment, including the ruling of Division Bench in the case of Orkay Industries Ltd. [1998 (2) Mah.L.J.910]. The