In Re: R. Kanniah and Another

K.N. Mudaliar, J.—The facts emerging from this appeal against the conviction of the Appellants fall within a narrow compass. On 30th

November, 1968, at 5 p. m., in Mount Road near the Majestic Hotel, the first Appellant R. Kanniah was seen driving the vehicle, Bus MSQ.

5583. P. W. 2 checked the omnibus and found the same being used as a stage carriage from Salem to Madras, collecting individual fare of Rs. 10

from each passenger. The gravamen of the complaint by the Inspector of Police, Traffic is, these Appellants 1 and 2 violated one of the permit

conditions. The Third Presidency Magistrate found the Appellants guilty u/s 42(1) read with S. 123 of the Motor Vehicles Act, 1939.

P. W. 1 is a Reserved Sub-Inspector attached to Flying Squad. He was travelling in Bus MSQ. 5585 from Salem. He got into the bus at 10 p.

m. on 29th November, 1968 to reach Madras. The first Appellant collected Rs. 10 from him and made an entry in the chit Ex. P-1. No ticket was

issued to him, but his name is found in Serial No. 18. On 30th November, 1968 at 5 a. m. in front of Majestic Hotel at Mount Road, the bus was

checked by P. W. 2. His further evidence is that the bus was having a board ""Contract Carriage"". He did not know whether there was a conductor

in MSQ 5585 driven by the first Appellant near the Majestic Hotel, Mount Road on 30th November, 1968 at 3 a. m. There were 27 passengers

in the vehicle, according to P. W. 2. P. W. 2 stated that there is no conductor in the bus. He asserted that the second Appellant is the owner of the

vehicle, but he stated later that as per version of the first Appellant, the second Appellant is the owner of the vehicle. He admitted that he did not

ask for the production of the registration certificate and the insurance certificate. It was suggested to P. W. 2 that the second Appellant is not the

owner of the vehicle. P. W. 2 also stated that all the passengers were from Salem and they were bound for Madras.

Under S. 342, Criminal Procedure Code, the Appellants were examined. The first Appellant stated that Nathan Travels engaged him and that P.

W. 1 did not travel in the Car. He also admitted that there is no permit for using it as a stage carriage. The first Appellant stated that there was no

conductor but there was a board. The second Appellant stated that he is the owner of MSQ 5585, that it was used as To determine the question

whether the two Appellants are guilty of the offence of contravening S. 42(1) of the Motor Vehicles Act, 1939, it is pertinent to extract the

definition of ""contract carriage"". S. 2(3) of the Act runs thus:

contract carriage"" means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the

use of the vehicle as a whole at or for a fixed or agreed rate or sum-

(i) on a time basis whether or not with reference to any route or distance, or

(ii) from one point to another, and in either case without stopping to pick up; or set down along the line of route passengers not included in the

contract; and includes a motor car notwithstanding that the passengers may pay separate fares"".

S. 42(1) of the Act runs thus:-

No owner of a transport vehicle shall use or permit the use of the vehicle in any public place (whether or not such vehicle is actually carrying any

passenger or goods, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport authority (or the

Commission) authorising the use of the vehicle in that place in the manner in which the vehicle is being used.

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a

contract carriage:

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorize the use of the vehicle

as a goods vehicle either when carrying passengers or not;

Provided further that a public carrier''s permit shall, subject to any conditions that may be specified in the permit, authorize the holder to use the

vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

The learned trial Magistrate held that the vehicle was used as a stage carriage though there was no permit to use it as a stage carriage. He,

however, held that the permit was only for using it as contract carriage. It emerges from the record that the permit relating to MSQ. 5585 has not

been proved in this case. It is argued by the learned Counsel for the Appellants that the vehicle was used only as a contract carriage and not as a

stage carriage; and he relies on Ex. D. 1 for the purpose of proving that Nathan Travels engaged this bus from Balu Automobiles, 56, Tiruchi

Road, Salem-1. P.W. 2 in this case has not chosen to take any trouble in verifying whether M.S.Q. 3585, the vehicle, was owned by Balu

Automobiles. The learned Counsel argued that all the passengers got into the bus from Salem and arrived at Madras. There is no evidence that any

passenger has been picked up on the route by stopping the bus. His argument is that the fact that the passengers pay separate fares does not

convert the contract carriage as a stage carriage, for, according to the learned Counsel, the very definition of contract carriage in S. 2(3) of the

Motor Vehicles Act contemplates the possibility of the passengers paying separate fares. The learned trial Magistrate adopted the test, namely that

there must be a contract entered into for using the vehicle as a whole from one starting point to another destination. The learned Magistrate

observes that it is no doubt true that even in a contract carriage the passenger may pay separate fare. After adumbrating the test, I am unable to

find any material in the evidence of P.W. 1 that the vehicle was not used as a contract carriage. I an unable to appreciate that the fact of non-

examination of Nathan Travels certainly does materially affect the defence case. In my view, the burden of proving that the Appellants are the

owners of a transport vehicle and that they either used or permitted the use of the vehicle in contravention of any conditions of a permit granted or

countersigned by a Regional or State Transport Authority authorising the use of the vehicle in the place and in the manner in which the vehicle is

being used, rests on the prosecution. These two important ingredients have not been proved by the prosecution on the basis of the testimony of P.

Ws. 1 and 2.

The learned Public Prosecutor argued that there is an admission by the second Appellant when a question was put in the following manner: ""It is

in the evidence of P.W. 2 that you are owner of MSQ. 5585"", and the second Appellant answered, ''It is true''. As I have noticed, P.W.2''s

evidence is based on what the first Appellant told him. In this view of the matter I am not prepared to act on the admission of the second Appellant

that he is the owner. There must be an independent proof to the effect that the second Appellant is the owner of the vehicle in question by

production of the registration certificate of the vehicle; such proof is lacking in this case.

I have already held that I am unable to see any material which would warrant the conclusion that the vehicle in question M.S.Q. 5585 has been

used as a stage carriage. At any rate, the evidence on r cord gives room for a reasonable doubt as to the use of the vehicle as a stage carriage. In

these circumstances, I come to the conclusion that the offence has not been proved by the prosecution beyond reasonable doubt. Both the

Appellants are acquitted of the offences u/s 42(1) read with S. 123 of the Motor Vehicles Act, 1939. The appeal filed by the Appellants is

allowed. Fines, if paid, are directed to be refunded to the Appellants.