In Re: Rajasekbaran

Maheswaran, J.—The revision petitioner has bean convicted of an offence punishable under R.49-YY(i) read with S. 112 of the Motor

Vehicles Act, and was sentenced to pay a fine of Rs. 60, in default to suffer imprisonment for ten days by the learned Judicial II Class Magistrate

No. IV, Coimbatore. On appeal the conviction and sentence were confirmed by the Chief Judicial Magistrate of Coimbtore and the Nilgiris at

Coimbatore. The facts are: On 25th March 1977 at about 21-45 hours at Palghat Road, Coimbatore, P.W.I, the Police Officer, checked the bus

bearing registration No. TNE 5187 and it was found that the but was carrying on 93 adult passengers made up of 79 males and 14 females and

the capacity of the bus in accordance with the permit was only 78 and there has been an overload of 15 adult passengers. The revision petitioner

and the conductor were charged, convicted and sentenced as stated above. On appeal, the learned Chief Judicial Magistrate of Coimbatore, as

already pointed out, confirmed the conviction and the sentence.

Mr. Santhanagopalan, learned counsel appearing for the revision petitioner contended that the revision petitioner ought to have been charged

under S. 42(l) read with S. 123 of the Motor Vehicles Act, that the conviction under R.49.YY(i) read with S. 112 of the Act is bad and that the

entire proceedings are vitiated. In support, he relied on a decision of the Supreme Court in State of U.P. v. Bansraj That was a case where the

driver of a public carrier, of which he was not an owner, was found carrying 23 passengers instead of 6 allowed under the conditions of permit

granted to the owner. The vehicle was checked by a Head Constable. He was tried summarily by a First Class Magistrate, Gorakhpur and found

guilty under S.123 of the Act and was sentenced to pay a fine of Rs. 200. The question that came up for consideration before their Lordships of

the Supreme Court in that case was about the liability of the driver of a motor vehicle used in contravention of the terms of the permit under S.

42(l) of the Act. The Supreme Court held that the words ''whoever drives a motor vehicle...in contravention of the provisions of Sub-s. (l) of S.

42, would cover both the owner and one who is not the owner. What their Lordships held was that the motor vehicles could not be driven by

anyone contrary to the conditions of the permit relating to that vehicle. But the learned counsel for the revision petitioner pointed out that not only

the driver of the vehicle, but also the conductor will be covered by S. 123 of the Act, and will be liable for conviction and, therefore, the conviction

under S. 112 is bad. I am not in agreement with this contention of the learned counsel. The Supreme Court in the ruling referred to above observed

that the words ""or causes or allows a motor vehicle to be used, or lets out a motor vehicle for use in contravention of the provisions of Sub-s. (l) of

S. 42"" may well refer to the owner. It is further observed that ''this part of S. 123 punishes an owner for contravening the provisions of S. 42(l) and

that the driving of the motor vehicle, however, is a different matter and it would be driven by the owner himself or by someone other than the

owner"", Therefore, in my view, the conductor, who was in the bus issuing the tickets would not be a person liable for conviction under S. 123 of

the Act, as the decision very clearly lays down that the words ""or causes or allows a motor vehicle to be used, or lets out a motor vehicle for use in

contravention of the provisions of Sub-s.(l) of S. 42"" will refer to the owner. Further the Division petitioner was not charged under S. 42(l) read

with S. 123 of the Act. He was charged under R.49-YY(i), which refers to the prohibition of a conductor of a vehicle to carry in excess of the

seating capacity specified in the permit of the vehicles. This R.49-YY(i) specifically refers to the conductor. As 1 am of the view that S. 123 of the

Act will not cover the conductor the only provision under which he can be charged is under S. 112 of the Act.

The next contention of the learned counsel was that there was no clear proof about the seating capacity of the permit, as the permit was not

Seized by the checking officer, who was a police officer. Most unfortunately the Police Officer has not stated anything in his evidence as to

whether the permit was available on the bus at the time of checking. Much reliance was placed by the Courts below on Ex. P.2, the trip sheet

wherein it is stated that the capacity of the bus is 38 plus 40. P.W. 1 has also spoken about the capacity in his evidence in chief, which has not

been controverter in cross-examination. The learned appellate authority has also stated that it was not disputed that the vehicle had a permit only

for 78 persons. The learned counsel appearing for the revision petitioner stated that this statement is wrong, because the revision petitioner has

denied the overloading. But I must point out that the evidence of P.W.I as regards the seating capacity has not been challenged and I must hold,

therefore, that the seating capacity of the bus is only 78. It is clear from the evidence of P.W.I, that at the time of checking there were 15 more

passengers and, therefore, the over-loading has been proved beyond all reasonable doubt. Both the Courts have concurred on this finding of fact

and sitting in revision I cannot say that this finding is wrong.

The next contention was that G.O.Ms. 2771, Home dated 31st July 1952, which makes it obligatory on the part of the checking authorities to

note the names and addresses of a few responsible passengers traveling in the bus at the time of check, so that they may be cited as witnesses, if

necessary, has not been followed by the Police Officer, and therefore, much reliance cannot be placed on the evidence of P.W. 1 alone and the

conclusion cannot be based on the uncorroborated testimony of P.W. I. No doubt, the Government Order says that the names and addresses of a

few responsible passengers traveling in the bus should be noted. But that was not followed by P.W. 1. It is not clear as to why he has not followed

it. But still I am inclined to agree with the appellate authority that the non-observance of this rule would not mean that the evidence of P.W. I is not

reliable. If there are any features in the evidence of P.W. I, which would make it unreliable, then it would be necessary to look for corroboration.

But in this particular case, the evidence of P.W. I is quite convincing, as it is supported by the production of Ex. P.l series, the tickets seized and

the entry in Ex. P 2, the trip sheet. In the circumstances, I feel that there are no reasons to interfere, with the findings of the appellate authority. The

revision case fails and is dismissed.