IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.377 of 2003 Between: Thomas Ignacious Victor Fernando ..... PETITIONER AND State of Andhra Pradesh, represented by Public Prosecutor ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.377 OF 2003 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C”), is directed against the Judgment, dated 06.03.2003, in Crl.A.No.99 of 2000 on the file of IV Additional District and Sessions Judge, Visakhapatnam, whereunder and whereby, the conviction of the petitioner/accused of the offence punishable under Section 420 read with 511 I.P.C. and sentence to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default simple imprisonment for three months, recorded in the judgment, dated 28.08.2000, in C.C.No.758 of 1997 on the file of the III Metropolitan Magistrate, Visakhapatnam, were confirmed. 2. The brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: The accused had been functioning as a Director of M/s. Roy Marine Foods Private Limited, since 1987. He was having two fishing mini trawlers, MFV Roy and MFV Jai. The fishing vessel MFV Roy was insured with M/s. United India Insurance Company Limited, Branch Office-III, Visakhapatnam, under policy commencing from 23.03.1994 which lapsed on 23.12.1994 as premium was not paid. On the intervening night of 07.01.1995/08.01.1995, the vessel, MFV Roy, was sunk near Kakinada, because of rough sea. The crew of MFV Roy was rescued by MFV Tungabhadra and they reached visakhapatnam on the evening of 08.01.1995. The records maintained by the Visakhapatnam Port Trust confirmed that MFV Tungabhadra arrived at Visakhapatnam Fishing Harbour on 08.01.1995 at 04:00 PM. On 08.01.1995 itself the accused came to know about sinking of MFV Roy. On 09.01.1995, the accused, with an intention to cheat M/s. United India Insurance Company limited, approached PW.2 - the Branch Manager of United India Insurance Company Limited and gave a cheque, dated 07.01.1995, for Rs.19,077/- towards Marine Hull Insurance Cover for MFV Roy. PW.2, without physical verification of the presence of the vessel, issued a Marine Hull acceptance advice, dated 09.01.1995, for MFV Roy, insuring the sunken vessel for Rs.25,00,000/-. On 10.01.1995 the accused had sent a telegram to the Insurance Company stating that the vessel MFV Roy was sunk accidentally in the early hours of 10.01.1995, at south of Kakinada fishing grounds while it was on fishing voyage and the crew of the sunken vessel was rescued by MFV Tungabhadra and they reached Visakhapatnam on 10.01.1995. The accused further requested the Insurance Company to appoint a surveyor for settlement of the claim. The complainant alleged that the said act was done by the accused with a dishonest intention to cheat the Insurance Company so as to cause wrongful loss to the Insurance Company and the wrongful gain to himself and thereby, committed an offence punishable under Section 420 read with 511 I.P.C. Thereafter, charge sheet was filed. 3. When a charge under Section 420 read with 511 I.P.C., was framed against the accused, and when the same was read over and explained to him, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-17. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral evidence was adduced but Exs.D-1 and D-2 were got marked. 6. The Trial Court, upon considering the evidence on record, came to a conclusion that the accused cheated the Insurance Company so as to cause wrongful loss and accordingly, convicted and sentenced him as stated above. Aggrieved by the same, the accused preferred an appeal before the lower appellate Court, which confirmed the judgment of the trial Court. Challenging the same, the present revision is filed by the accused. 7. Now the point for determination is whether the prosecution had proved the guilt of the accused beyond all reasonable doubt and whether the judgments of both the Courts below are correct, legal and proper? 8. The learned counsel appearing for the revision petitioner/accused contended that except the evidence of PW.6, there is no other evidence to show that MFV Roy was sunk near Kakinada on 08.01.1995, and that the information was received from MFV Akila and MFV Anjana, but, the person who sent the message from MFV Akila was examined to show that they sent a message to MFV Anjana and therefore, the said evidence is not admissible under Section 60 of the Indian Evidence Act, 1872 (for short, “the Act”); that this finding given by the Courts below are not proper and correct, and hence, prays to set aside the impugned judgments. 9. On the other hand, the learned counsel appearing for the learned Public Prosecutor contended that the deck log book has to be maintained in accordance with Merchant Shipping Act, 1958 by all the shipping vessels and therefore, it is admissible under Section 35 of the Act, and that the deck log book is maintained in the discharge of professional duty, and in the ordinary course of business and therefore it will fall under Section 32 (2) of the Act and there is no illegality or incorrectness in the findings of the two courts below, and hence, she prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be perverse, or contrary to law, or illegal or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse if it is not based upon proper appreciation of the evidence on record. 11. The case of the prosecution is that MFV Roy fishing vessel was sunk on the intervening night of 07.01.1995/08.01.1995 near Kakinada. It seems that another vessel near to that sunken vessel, by name MFV Akila, sent a message through Very High Frequency Set to MFV Anjana. MFV Akila and MFV Anjana belonged to Kanchana Ganga Sea Foods Private Limited, Visakahapatnam, in which PW.6 was working as a Skipper of Marine Trawlors. He stated that they used to maintain the deck logbook and they used to record all the information about the business in that book. The logbook of MFV Anjana is marked as Ex.P-12, whereas the logbook of MFV Akila is marked as Ex.P-13. PW.6 along with one B.S.V.Prasad, received a message from MFV Ashish on 07.01.1995, at midnight, through a Very High Frequency Set that MFV Roy was sunk at 16 nautical miles south of Kakinada. PW.6 entered the same in the deck logbook on 08.01.1995. The same was recorded. The entire evidence rests upon the solitary testimony of PW.2 with regard to sinking of MFV Roy on the intervening night of 07.01.1995/08.01.1995 at 16 nautical miles south of Kakinada. 12. It is not in dispute that the accused approached the Branch Manager of the United India Insurance Company Limited and paid Rs.19,077/- by way of cheque towards Marine Hull Insurance Cover for MFV Roy. Admittedly, the Branch Manager issued the Marine Hull acceptance advice, dated 09.01.1995, covering the insurance of the vessel for Rs.25,00,000/-. It is also not in dispute that, on 10.01.1995, the accused had sent a telegram to the Insurance Company stating that MFV Roy was sunk accidentally in the early hours of 10.01.1995 at south of Kakinada and the crew of the sunken vessel was rescued by MFV Tungabhadra and they reached Visakhapatanam at 07:00 PM on 10.01.1995. Thereafter, it seems that the accused submitted a claim form and also requested to appoint a surveyor for settlement of the claim. It is also not in dispute that one of the crew members of MFV Asish had sent a message to MFV Akila and MFV Anjana and that message was entered in the deck log book of MFV Akila and MFV Anjana, which are marked as Exs.P-12 and 13. 13. According to the learned Senior Counsel, Sri C. Padmanabha Reddy, the message received from MFV Asish is not admissible under law because no person connected with MFV Asish is examined. However, the learned counsel appearing for the learned Public Prosecutor contended that the said message sent by MFV Asish falls under Section 32 (2) of the Act. 14. No doubt, Section 32 (2) of the Act states that when the statement was made by such person in the ordinary course of business is relevant fact, but that is subject to sub Section (1) of Section 32 of the Act i.e., the statements, written or verbal, of relevant fact made by a person 1) who is dead 2) who cannot be found 3) who has become incapable of giving evidence 4) whose attendance cannot be procured, without an amount of delay or expenses. Therefore, if the case of the prosecution falls under any one of the four categories as stated above, then, certainly that statement may be admissible under Section 32(2) of the Act. But, the prosecution has failed to examine any persons relating to MFV Asish to the effect that they have sent a message to MFV Akila and MFV Anjana on the intervening night of 07.01.1995/08.01.1995 with regard to sinking of MFV Roy in the sea near Kakinada. Therefore, the said evidence is not admissible under Section 32(2) of the Act. 15. However, learned counsel appearing for the learned Public Prosecutor also relied upon Section 35 of the Act and contends that as per law a logbook has to be maintained and therefore, it is a relevant fact. 16. Section 35 of the Act consists of two parts, first part is with regard to entries in any public or other Official book, register, made by a public servant in discharge of his official duty, the second part consists of any other person in performance of a duty specially enjoined by the law of the country in which such book or register is kept, is a relevant fact. It is not in dispute that a logbook has to be maintained under the Merchant Shipping Act, 1958. Sub-section (3) of Section 213 of the Merchant Shipping Act reads that every entry made in an official logbook in the manner provided by this Act shall be admissible in evidence. This provision under Section 35 of the Act has to be read in Juxta position with Section 60 as they have got to be. Section 60 of the Act says that oral evidence must, in all cases whatever, be direct. If the information is noted in the logbook, maintained by MFV Akila and MFV Anjana, as required by law, though relevant, it is hear say evidence. No doubt Section 32(2) of the Act is an exception to the hear say rule of evidence. The persons connected with MFV Asish have not been examined to show that they have sent the message. Therefore, the evidence of PW.6 and Exs.P-12 and 13 can be said to be hear say, though Exs.12 and 13 are relevant under law. As that evidence is based upon the information sent by somebody and in the absence of examination of the person who sent the information to MFV Akila and MFV Anjana, Exs.P-12 and 13 are not admissible under law. Therefore, the trial Court has committed illegality in convicting the accused. Except the evidence of PW.6, there is no other evidence to show that MFV Roy was sunk, as a matter of fact, on the intervening night of 07.01.1995/08.01.1995. Therefore, the question of giving information by the accused, does not amount to an attempt of cheating the Insurance Company. 17. Therefore, the conviction and sentence recorded by the trial Court, confirmed by the appellate Court, against the petitioner/ accused of the offence punishable under Section 420 read with 511 I.P.C. are set aside and the petitioner/accused is acquitted of the said charge. Bail bonds, if any, of the petitioner/accused shall stand cancelled. Fine amount, if any, paid shall be refunded to him. 18. Accordingly, the Criminal Revision Case is allowed. _______________ K.C. BHANU, J February 05, 2010 MD