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Andhra High Court · body

2005 DIGILAW 959 (AP)

M. R. Kudva v. State Of A. P.

2005-10-17

B.SESHASAYANA REDDY

body2005
( 1 ) THIS Criminal Petition is filed by K. R. Kudva-M in C. C. 5 of 1993 with a prayer to modify the order dated 6-8-1997 passed by the Special Judge for cbi Cases and to direct the sentences awarded in C. C. 9 of 1992 and C. C. 5 of 1993 to run concurrently in terms of the provisions of Section 427 Cr. P. C. ( 2 ) THE petitioner is A1 in C. C. 5 of 1993 and C. C. 9 of 1992. He along with other accused persons was put on trial before the Special Judge for CBI Cases, Hyderabad for the offences under Sections 120-B, 420, 471, 468 and 471 IPC and Section 5 (2) read with 5 (1) (d) of Prevention of Corruption act, 1947 in C. C. 9 of 1992. The learned special Judge for CBI Cases by his judgment dated 4. 7. 1997 found the petitioner-A1 guilty for the offences under Sections 120-B, 420, 468 and 471 IPC and Section 5 (2) read with 5 (l) (d) of P. C. Act, 1947 and convicted him accordingly and sentenced to suffer rigorous imprisonment for eighteen months and pay a fine of Rs. 2,000/- in default to suffer simple imprisonment for two months under Section 120b IPC; rigorous imprisonment for eighteen months and fine of Rs. 3,000/- in default to suffer simple imprisonment for three months under section 420 IPC; rigorous imprisonment for eighteen months and fine of Rs. 2,000/- in default to suffer simple imprisonment for two months under Section 468 IPC; rigorous imprisonment for eighteen months and fine of Rs. 1,000/- in default to suffer simple imprisonment for one month under Section 471 ipc; and rigorous imprisonment for eighteen months and fine of Rs. 2,000/- in default simple imprisonment for two months under section 5 (2) read with 5 (1) (d) of P. C. Act. The petitioner along with other accused persons was also put on trial before the special Judge for CBI Cases, Hyderabad for the offences under Sections 120 (B), 420, 468 and 471 IPC and Section 5 (2) read with 5 (l) (d) of P. C. Act, 1947 in C. C. 5/93. The learned Special Judge for CBI Cases by his judgment dated 6. 8. The learned Special Judge for CBI Cases by his judgment dated 6. 8. 1997 found the petitioner-A1 guilty for the offences under section 5 (2) read with 5 (1) (d) of P. C. Act, 1947 and under Sections 120b, 420, 468 and 471 IPC and convicted him accordingly and sentenced him to suffer rigorous imprisonment for two years and pay a fine of Rs. 2,000/- in default to suffer simple imprisonment for two months for the offence under Section 120b IPC; rigorous imprisonment for two years and fine of Rs. 3,000/- in default to suffer simple imprisonment for three months for the offence under section 420 IPC; rigorous imprisonment for two years and fine of Rs. 2,000/- in default to suffer simple imprisonment for two months for the offence under Section 468 IPC; rigorous imprisonment for two years and fine of Rs. 2,000/- in default to suffer simple imprisonment for two months for the offence under Section 471 IPC; rigorous imprisonment for two years and fine of rs. 2,000/- in default to suffer simple imprisonment for two months for the offence under Sections 5 (2) read with 5 (1) (d) of prevention of Corruption Act, 1947. Assailing the judgment of conviction and sentence passed against the petitioner in C. C. 9 of 1992, he filed Crl. A. 792 of 1997 and whereas assailing the judgment of conviction sentence passed in C. C. 5 of 1993, he filed Crl. A. No. 894 of 1997. Both the criminal Appeals ended in dismissal confirming the convictions and sentences. It appears the petitioner-A1 challenged the convictions and sentences by filing Special Leave petitions (Criminal) Nos. 3456 and 3457 of 2005 before the Supreme Court. The petitioner-A1 has come up with this Criminal petition under Section 482 read with Section 427 Cr. P. C with a prayer to modify the order dated 6. 8. 1987 passed by Special Judge for CBI Cases, Hyderabad in C. C. 5/93 and direct that the sentences awarded in C. C. 9/ 92 and C. C. 5/93 to run concurrently. ( 3 ) HEARD learned Counsel appearing for the petitioner-Al and learned Special public Prosecutor for CBI appearing for respondent. 8. 1987 passed by Special Judge for CBI Cases, Hyderabad in C. C. 5/93 and direct that the sentences awarded in C. C. 9/ 92 and C. C. 5/93 to run concurrently. ( 3 ) HEARD learned Counsel appearing for the petitioner-Al and learned Special public Prosecutor for CBI appearing for respondent. ( 4 ) LEARNED Counsel appearing for the petitioner-A1 submits that by the time the petitioner was sentenced to imprisonment in c. C. 5/93, he had already been convicted and sentenced for various offences in C. C. 9/ 92 and therefore the subsequent sentences imposed on the petitioner in C. C. 5/93 are required to be ordered to run concurrently with the sentences of imprisonment imposed on the petitioner in C. C. 9/92 as provided under Section 427 (1) of Cr. P. C. He further submits that despite the fact that the appeals preferred by the petitioner assailing the conviction and sentences imposed on him in c. C. 9/92 and C. C. 5/93 ended in dismissal by this Court, the instant application is maintainable under Section 482 read with 427 Cr. P. C for the relief stated supra. In support of his submissions, reliance has been placed on the decisions of Supreme Court in Mohd. Akhtar Hussain v. Assistant collector, (1988) 4 SCC 183 , Ran/it Singh v. Union Territory of Chandigarh, 1991 cri. LJ 3354, Ammavasai v. Inspector of police, AIR 2000 SC 3544 , the decisions of Bombay High Court in Emperor v. Babibai, 1942 Bom. LR 807, State of maharashtra v. Dadaba Borge, 2001 cri. LJ 3638 and Jamnaprasad Sarju tiwari v. Saban K. Dhone, 1993 Cri. LJ 1470, the decision of Orissa High Court in bansidhar Mati v. State, AIR 1971 On. 139, the decisions of Madhya Pradesh High court in AS Naidu v. The State of M. P. , 1975 Cri. LJ 498 and Shersingh v. State of m. P. , 1989 Cri. LJ 632, the decision of this court in Katapagarri Venkata Reddy v. The Inspector, 1982 Cri. LJ 1844, the decision of Delhi High Court in Kalicharan v. State, 1984 Crimes 316 , the decision of Kerala high Court in Sooraj v. The State, 1994 cri. LJ 1155, and the decision of Punjab and haryana High Court in Jai Kishan v. State of Haryana, 2002 Cri. LJ 412. LJ 1844, the decision of Delhi High Court in Kalicharan v. State, 1984 Crimes 316 , the decision of Kerala high Court in Sooraj v. The State, 1994 cri. LJ 1155, and the decision of Punjab and haryana High Court in Jai Kishan v. State of Haryana, 2002 Cri. LJ 412. ( 5 ) LEARNED Special Public Prosecutor for CBI appearing on behalf of the respondent submits that a direction as to how the sentences in two cases should run subsequent to disposal of Criminal Appeal nos. 792 and 894 of 1997 would amount to alteration of the judgments therein which is barred under Section 362 of Cr. P. C and therefore this Criminal Petition filed by the petitioner is liable to be dismissed and even otherwise the facts and circumstances of the case do not justify for issuance of a direction sought for by the petitioner. To buttress his submissions reliance has been placed on the decision of Delhi High court in Copal Dass v. State, 1978 Crl. LJ 961 ( AIR 1978 Del. 138 ), and the decision of Kerala High Court in Bhaskaran v. State, 1978 Crl. LJ 738 (Ker. ). In Gopal dasss s case it has been held that in exercise of inherent powers at the instance of a party who has a right of appeal or revision but has not availed himself of that right, the Court cannot pass an order directing that a sentence of imprisonment awarded to such a person on a subsequent conviction to imprisonment when he is already undergoing a sentence of imprisonment on an earlier conviction shall run concurrently with such previous sentence. It is further held that the inherent powers of the High Court preserved by Section 482 are to be exercised in making orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While exercising inherent powers it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. While exercising inherent powers it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. I deem it appropriate to refer the relevant portion of the judgment and it is thus:"the discretionary power under Section 427 (1) to direct that the sentence of imprisonment awarded on the subsequent conviction shall run concurrently with the sentence the accused was already undergoing is to be exercised on the merits of the case at the time of awarding the subsequent sentence. But this power can be exercised on either the accused or the prosecution bringing to the notice of the Court recording a subsequent conviction that the accused is already undergoing sentence of imprisonment. On pronouncement of the judgment, recording a conviction and sentencing an accused to appropriate imprisonment warranted by the facts of the case the Court becomes functus officio and cannot by resort to the provisions of Section 427 on an application by an accused person pass an order directing that the imprisonment awarded by it shall run concurrently with the imprisonment the accused was already undergoing at the time the Court sentenced him to imprisonment subsequently. "in Bhaskaran s case it has been held that the direction that the sentences for offences tried during a single trial may run concurrently is an integral part of the judgment. A similar direction that the sentences in a later case may run concurrently with the sentence in an earlier case is also a part of the judgment. Therefore, a direction as to how the sentences in the two cases should run, issued subsequent to the disposal of the cases would amount to alteration of the judgment which is barred under Section 362. The criminal Procedure Code, 1973 contains distinct provisions as to the manner in which punishment should be undergone when a person is sentenced to imprisonment for more than one offence and they are contained in Section 31 (1) and Section 427 (1 ). Section 31 (1) deals with sentences in cases of conviction at one trial of two or more offences. Section 427 (1) deals with cases where a person is sentenced to different terms of imprisonment in separate trials - where the sentence in one case is in force when another term of imprisonment is imposed. Section 31 (1) deals with sentences in cases of conviction at one trial of two or more offences. Section 427 (1) deals with cases where a person is sentenced to different terms of imprisonment in separate trials - where the sentence in one case is in force when another term of imprisonment is imposed. Under both the above provisions, the Court is competent to direct that the sentences may run concurrently. A direction that the sentences for offences tried during a single trial may run concurrently is an integral part of the judgment. If that be so, a similar direction that the sentences in a later case may run concurrently with the sentence in an earlier case is also a part of the judgment. Therefore, a direction how the sentences in the two cases should run, issued subsequent to the disposal of the cases would amount to alteration of the judgment which is barred under Section 362 cr. P. C. ( 6 ) IT has been held by Supreme court in Hari Singh Mann v. Harbhajan singh Bajwa, AIR 2001 SC 42, that there is no provision in the Code of Criminal procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. ( 7 ) THE point for consideration is whether the petitioner made out a case for modification of the order dated 6-8-1997 passed by the Special Judge for CBI Cases in C. C. 5/93 in exercise of inherent powers under Section 482 Cr. P. C, after disposal of crl. Appeal Nos. 792 and 894 of 1997 whereby and whereunder the convictions and sentences of the petitioner for the offences under Sections 120-B, 420, 468, 471 IPC and Section 5 (2) read with section 5 (1) (d) of P. C. Act, 1947 passed in c. C. 5/93 and C. C. 9/92 are confirmed? before answering the question a brief resume of the facts of the cases in which convictions have been recorded against the petitioner for various offences needs to be noted. before answering the question a brief resume of the facts of the cases in which convictions have been recorded against the petitioner for various offences needs to be noted. The prosecution case in C. C. No. 9 of 1992 is : the Defence Metallurgical Research center employees formed a Society called Defence Metallurgical Research laboratory Employees Co-operative Credit] society Limited (hereinafter referred to as society ). Al (petitioner herein) worked as a manager and A2 worked as a Clerk during the year 1986-87 at Abid Road Branch, syndicate Bank. A3 is elder brother and A4 is wife of A2. A3 and A4 are partners in m/s. Sireesha which deals in consumer items such as T. V. sets and Refrigerators. A2 approached the Union leaders of DMRL employees Association and assured loans for purchase of plots from Syndicate bank @ Rs. 7,000/- for a plot admeasuring 200 square yards. He also approached p. W. 19 G. Bali Reddy a real estate agent with a proposal to bring large number of buyers to purchase plots near Ghatkesar on an understanding that he should be paid a commission @ Rs. 600/- per a plot admeasuring 200 square yards. About 150 employees of DMRL expressed their willingness to avail the loan of Rs. 7,000/- for purchase of plot admeasuring 200 square yards. A2 secured a letter-dated 18. 11. 1986 from the Director, DMRL whereunder an undertaking was given to the Bank to deduct the installments from the salaries of the employees in case they are granted loans for purchasing house plots. A2 collected loan applications from the employees of dmrl and submitted the same to Al, manager of the Bank. P. Ws. 18, 19 and 20 obtained the signatures of the employees on the application forms and submitted the same to A2 who in turn presented the same before A1. The relevant columns in the applications were filled by P. Ws. 5 to 7 on the instructions of A1. A2 got addressed a letter by M/s Shirisha to the Branch manager requesting to sanction loans to the employees of DMRL sponsored by them for purchasing black and white/ colour TV sets with a further request to credit loan amounts to the current account of M/s Shirisha maintained with Abid Road branch, Syndicate Bank, Hyderabad. The Branch Manager was further requested to send the proceeds by way of demand drafts to DMRL Co-operative Credit Society. The Branch Manager was further requested to send the proceeds by way of demand drafts to DMRL Co-operative Credit Society. The employees of DMRL were made to understand that the loans sought for were for the purchase of house plots. Whereas the letter written by M/s Shirisha, a partnership firm to the Branch Manager indicates that the loans were to be sanctioned for the purchase of consumer items such as TV sets. A1 sanctioned the loans to 150 employees of DMRL for the purchase of T. V sets through M/s Shireesha and credited Rs. 13,64,000/- to the account of m/s Shireesha. Thereafter at the request of m/s Shireesha an amount of Rs. l 0,15,000/- was credited to the account of DMRL Cooperative credit Society. Of these 150 members, five of them namely P. W. 9 j. Pradeep, P. W. 11 S. Kasturi, P. W. 12 g. Raja Gopal Reddy, P. W. 13 K. Shivarama Prasad and P. W. 5 J. V. Ramudu expressed their disinclination to avail the loan and the amounts sanctioned to them were credited to the account of m/s Sirishaa. As per the understanding between P. W. 19 and A2, an amount of rs. 87,000/- @ Rs. 600/-per plot as commission was paid to M/s Shirisha. P. W. 19 who is a real estate agent was paid rs. 10,15,000/- towards the cost of the land by way of seven pay orders. DMRL employees Co-operative Credit Society paid installments to the Bank for the months of February, March, April, May for rs. 1,88,399. 80 vide letter dated 22. 6. 1987. Since the individual account numbers were not furnished to the Society and as the amount was kept in suspense account, the then President of the Society entertained doubt and made enquiries and learnt that the loans were sanctioned by the Bank were not for the purchase of plots but for the purchase of TV sets. He lodged a written complaint dated 1. 3. 1988. P. W. 56 investigated the irregularities in sanction of loans to the employees of DMRL and submitted Exs. P. 661 and 662 reports. P. W. 59 K. Sampath Kumar, Inspector, cbi registered a case in R. C. 5/a/89 and issued Ex. P. 672 FIR. After completing investigation, a charge-sheet came to be submitted before the Special Judge for CBI cases, Hyderabad. P. 661 and 662 reports. P. W. 59 K. Sampath Kumar, Inspector, cbi registered a case in R. C. 5/a/89 and issued Ex. P. 672 FIR. After completing investigation, a charge-sheet came to be submitted before the Special Judge for CBI cases, Hyderabad. The learned Special judge took the charge-sheet on file as c. C. No. 9 of 1992. ( 8 ) THE prosecution case in C. C. 5/93, in brief, is : a1 (petitioner herein) was the Branch manager and A2 was a Clerk in Abid road Branch of Syndicate Bank during the years 1986 and 1987. A3 who is the co- brother of A2 is a partner of M/s Consumer credit Corporation. A4 and A5 are partners of M/s Kalpavruksha Enterprises. A6, A7, a8 and A9 are partners of M/s Balaji enterprises. A10 is the wife of A2 and she is a partner in M/s Shireesha as well as M/s Consumer Credit Corporation. It is alleged that all the accused conspired together to cheat Abid Road Branch of syndicate Bank with regard to sanction of loans to the employees of Government institutions/public Sector Undertakings for the purchase of plots by using false and forged documents and in pursuance of the said criminal conspiracy they committed several illegal acts. In the years 1986 and 1987 there was credit squeeze and therefore a ban was imposed by the Head office of Syndicate Bank and specific instructions were issued to Branch Managers not to sanction and release loans without the prior permission of Head Office vide exs. P. 475 to 478 circulars. M/s Consumer credit Corporation and M/s Shireesha approached the Abid Road Branch of syndicate Bank with a proposal to sanction loans ranging from Rs. 8,000/- to Rs. 10,000/- each to the persons sponsored by them for purchasing house plots against the deposits mobilized by them. A1 recommended the proposal under his letter dated 7. 2. 1987 to the Head Office of Syndicate Bank vide ex. P. 479 office note. The proposal was negatived by the Head Office under ex. P. 480 letter dated 3. 3. 1987. The Head office communicated the Abid Road branch regarding the disapproval of the proposal by way of telex message followed by a letter. Ex. P. 483 is the copy of the telex dated 10-4-1987 and Ex. P. 483 is the copy of the letter dated 15. 4. 1987. P. 480 letter dated 3. 3. 1987. The Head office communicated the Abid Road branch regarding the disapproval of the proposal by way of telex message followed by a letter. Ex. P. 483 is the copy of the telex dated 10-4-1987 and Ex. P. 483 is the copy of the letter dated 15. 4. 1987. Despite the Head Office negativing the proposal, a1 sanctioned loans to persons sponsored by M/s Shireesha and M/s Consumer Credit corporation. A2 approached the employees of Government/public Sector Undertakings and made them to believe that house plots would be given to them @ Rs. 8,000/-, 10,000/- and secured blank loan application forms and inflated the loan amounts in the applications in collusion with the Branch manager (A1 ). A2 contacted various real estate dealers and pocketed part of the loan amounts. A1 got the loan applications filled up by the staff of the bank and diverted part of the loan amounts to the real estate dealers such as M/s. Kalpavruksha enterprises etc. , and the sponsorers such as m/s. Shireesha and M/s. Consumer Credit corporation without the knowledge and consent of the borrowers. As per the procedure, the loan amounts were to be credited to the SB account of the borrowers and thereafter the amounts were to be withdrawn by them. Instead, A1 debited the loan amounts of the borrowers and paid money by way of pay orders/dds to various real estate dealers/sponsorers. Some of the borrowers got neither the loan amounts nor the house plots, P. W. 13 Ganapathi Kamath, the Vigilance Officer investigated the irregularities in sanction and disbursement of loans under the scheme sponsored by m/s Shireesha and M/s Consumer Credit corporation and submitted Exs. P. 492 and 493 reports. P. W. 39 K. Sampath kumar, Inspector, CBI, registered a case in r. C. 4 (A)/1989 and issued Ex. P. 611 FIR. He examined the Syndicate Bank officials and the employees of M/s Shireesha and the borrowers and recorded their statements. He secured specimen writings of A2 to a10 and sent them to the Government examiner of questioned documents and obtained his opinion. He secured sanction orders to prosecute Al. Ex. P. 607 is the sanction order issued by the employer of a1. He secured specimen writings of A2 to a10 and sent them to the Government examiner of questioned documents and obtained his opinion. He secured sanction orders to prosecute Al. Ex. P. 607 is the sanction order issued by the employer of a1. After completing investigation, a chargesheet came to be submitted before the special Judge for CBI Cases, Hyderabad the learned Special Judge took the chargesheet on file as C. C. No. 5 of 1993. ( 9 ) THE facts narrated in the above two cases indicate that there are two different transactions and that the offences proved against the petitioner are very serious in nature affecting the confidentiality of the public on bank transactions. The convictions and sentences of the petitioner a1 came to be confirmed by this Court in criminal Appeal Nos. 792 and 894 of 1997. The convictions came to be recorded in respect of offences relating to two different transactions. In my considered view, this is not a fit case to direct the sentences imposed on the petitioner-A1 in C. C. 9/92 and C. C. 5/93 to run concurrently. Even otherwise any direction as to how the sentences in the two cases should run after disposal of Crl. Appeal Nos. 792 and 894 of 1997 would amount to alteration of the judgments therein which is barred under section 362 of Cr. P. C. ( 10 ) FOR the foregoing reasons, this criminal petition is dismissed.