IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.MC.No. 239 of 2009 -------------------------------- (S.T.NOS.112/97, 115/97, 119/97, 120/97 AND 121/1997 OF JFCM COURT, THIRUVANANTHAPURAM) ................ PETITIONER/ ACCUSED 2: -------------------------------------- V.K.VIJAYAN, S/O.KITTUNNY, CONVICT NO.3205,MANAGING PARTNER, POWERCOM GROUP OF COMPANIES, KANNATH LANE, M.G.ROAD,THRISSUR, NOW IN CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE THOMAS MEVADA. RESPONDENTS/RESPONDENTS/COMPLAINANTS AND ACCUESD 2 AND 3: ---------------------------------------------------------------------------------------------------------- 1. M/S TRANSMATIC SYSTEMS LTD,GOLF LINKS ROAD,KOWDIAR.P.O,THIRUVANANTHAPURAM,REP; BY ASST.MANAGER(ACCOUNTS), B.PADMAKUMARAN THAMPI. 2. M/S.POWER SYSTEM & SERVICES, REPRESENTED BY ITS MANAGING PARTNER V.K.VIJAYAN, XLI/2319,PARAMARA ROAD,ERNAKULAM, NORTH KOCHI. 3. A.J.ALEXANDER, S/O.A.C.JOHN, PARTNER, POWER SYSTEMS AND SERVICES,XLI/2319, PARAMARA ROAD, ERNAKULAM NORTH, KOCHI. 4. THE SUPERINTENDENT OF CENTRAL PRISON, POOJAPPURA, TRIVANDRUM. 5. STATE OF KERALA,REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. *ADDL.R6. M/S. ACCEL TRANSMATIC LTD., REGD OFFICE, TC 17/27, JERA 20, JAGATHY, TRIVANDRUM - 695 014. *ADDL.R6. IS IMPLEADED AS PER ORDER DATED 21/01/2009 IN CRL.M.A. NO. 400/2009. R5 BY PUBLIC PROSECUTOR SRI. P.A. SALIM. ADDL.R6. BY ADV. SRI. M. SREEKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT, J. ---------------------- Crl.M.C.No.239 of 2009 ---------------------------------------- Dated this the 21st day of January 2009 O R D E R The petitioner faced indictment in five different prosecutions, all under Section 138 of the Negotiable Instruments Act, which were tried by the learned J.F.C.M-V, Thiruvananthapuram. All the five cases were disposed of by a common judgment. The petitioner was found guilty, convicted and sentenced. In each case, he was sentenced to undergo S.I for a period of six months. He was further directed to pay fine and cost. Default sentences were also imposed. 2. The petitioner preferred appeals before the Sessions Court, Thiruvananthapuram. The learned Sessions Judge dismissed the appeals on the ground that the appeals were belated and there was no satisfactory reasons to condone the delay. The applications for condonation of delay was dismissed and consequently the appeals were rejected as barred by limitation. 3. Revision petitions were filed before this court by the petitioner and this court, by common order dated 03/10/2006 in Crl.R.P.Nos.3447 to 3451 of 2006 allowed the said revision Crl.M.C.No. 239/09 2 petitions and directed the appellate court to dispose of the appeals on merits on condition that the petitioner shows his bona fides by depositing half the cheque amount in each of these cases. 4. The petitioner, it is submitted, unfortunately could not raise the requisite amounts and this consequently made it impossible for him to insist on a disposal of his challenge on merit. 5. In these prosecutions, there were altogether three accused persons. The first accused was a partnership firm whereas accused 2 and 3 were managing parter and partner respectively of the said firm. The petitioner herein is the second accused. The 3rd accused/partner had preferred appeal before the Sessions Court, Thiruvananthapuram and the Additional Sessions Judge, by common judgment dated 19/11/2004 had allowed the appeals in part. The verdict of guilty and conviction were upheld; but the substantive sentences of imprisonment was modified and reduced to imprisonment till rising of court. As the petitioner's appeals were rejected as barred by limitation and the petitioners could not take advantage of the common order dated 03/10/2006 passed by this court referred to earlier, the Crl.M.C.No. 239/09 3 petitioner was not able to claim advantage of such reduction in the substantive sentence. 6. The petitioner has now been arrested on 30/8/2008, it is submitted. At this juncture, the petitioner, along with the complainant, has come before this court to apprise this court of the fact that the parties have settled all their outstanding disputes and the complainant has compounded the offences allegedly committed by the petitioner accepting part of the amount paid by the petitioner. In these circumstances, the petitioner has come to this court along with the respondent/complainant with a prayer that the sentence imposed on him may be set aside accepting the composition or at least directing that the substantive sentences of imprisonment imposed on the petitioner in these different cases may be directed to run concurrently under Section 427 Cr.P.C. The complainant/additional 6th respondent has entered appearance. The learned counsel confirms that the disputes have been settled and the 6th respondent/complainant has no objection against acceptance of the composition and appropriate orders being passed. Crl.M.C.No. 239/09 4 7. The verdict of guilty, conviction and sentence have become final. This court has already passed common order dated 03/10/2006 in the revisions preferred. In these circumstances in the light of the decision of the Division Bench in Sudhir Kumar v. Kunhiraman [2008(1) KLT 168] in which the earlier decision of the single Bench in Sabu George v. Home Secretary [2007(1) KLT 982] stands over ruled, the prayer for composition cannot be accepted by this court. 8. What survives is only a prayer for direction of concurrency under Section 427 Cr.P.C. No objections are raised by anyone against the prayer for concurrency. I have taken note of the decision of the Supreme Court in M.R.Kudva v. State of Andhra Pradesh [AIR 2007 SUPREME COURT 568] and the later decision of the Division Bench of this court in Sukumaran v. State of Kerala [2008(1) KLT 732], the question whether this court have the jurisdictional competence now in a subsequent application under Section 482 Cr.P.C to direct concurrency was argued in detail. 9. Powers under Section 482 Cr.P.C have been described to be awesome and sweeping. Section 482 Cr.P.C does not confer any powers on the High court. Instead, it only reserves Crl.M.C.No. 239/09 5 certain powers which the High Court always had to act in aid of justice. It has often been said that powers under Section 482 Cr.P.C can be invoked by a court to do justice even beyond the law. I am totally satisfied in the facts and circumstances of this case that the petitioner who faced prosecution simultaneously in five different cases is, at any rate, entitled for such leniency and a direction for concurrency would be absolutely justified. I take note of the fact that the co-accused, in an appeal preferred by him, has succeeded and the sentence imposed on him has been reduced to imprisonment till rising of court. I take note of the fact that the complainant has appeared before this court to confirm settlement/composition. I take note of the further fact that unlike the facts scenario in the decisions in M.R.Kudva (Supra), the petitioner did not get the opportunity to assail the verdict of guilty and conviction passed by the trial court in appeal on account of the bar of limitation. Taking the totality of circumstances into account, I am satisfied that, on the facts of this case, it can safely be reckoned as an exception to the general rule propounded in M.R.Kudva and Sukumaran (Supra). Leniency can be shown to the petitioner. 10. The learned counsel for the petitioner submits that Crl.M.C.No. 239/09 6 though there is a sentence of fine and a direction for payment of cost and consequent sentence imposed in default, the petitioner only seeks the relief that substantive sentences of imprisonment may be directed to run concurrently, he having already exhausted the default sentences imposed. 11. In the result, a) This Crl.M.C is allowed. b) It is directed under Section 482 Cr.P.C that the substantive sentences of imprisonment imposed on the petitioner in five different cases (S.T.Nos.112/97,115/97,119/07,120/07 and 121/97) as per the common judgment dated 24/3/2001 passed by the learned J.M.F.C V, Thiruvananthapuram shall run concurrently. 12. Hand over copy of this order to the learned counsel for the petitioner forthwith. Communicate the order to the prison authorities as also the learned Magistrate for appropriate further action. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No. 239/09 7 Crl.M.C.No. 239/09 8 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008