K RAJA BHAT Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner who is a driver of motor car MYK 2742 has been convicted of an offence punishable under S.42(1) read with S.123 of the Motor Vehicles Act and sentenced to a fine of Rs.25 in default to undergo simple imprisonment for 7 days. In this revision petition he challenges the legality and correctness of the said conviction and sentence passed on him by the Additional Munsiff-cum-Magistrate, Coondapur in CC. No. 934 of 1969.

(2.) Shri P. Viswanath Shetty, learned Counsel appearing on behalf of the petitioner, has contended that there is absolutely no evidence to show that the accused used the private car for hire or reward. The only evidence adduced was that of PW.l, who, stated that the accused was soliciting passengers. The prosecution has failed to examine the passenger (C.W.2), who is a material witness, sitting in the car. Even if the prosecution version is accepted as true, it will only show that the accused was soliciting passengers in the bus stand and this will not amount to an offence under S.42(1) read with S.123 of the Motor Vehicles Act. It is urged that under S.123 of the Act, driver of the car can be punished only if he drives the motor vehicle in question for the purpose mentioned in S.42(1) of the Act. In this case, accused being admittedly a driver, could not be guilty of the offence punishable under S.123 unless he drives the private car for the purpose of carrying passengers for hire. The learned Counsel has also submitted that the learned Magistrate has wrongly drawn inference from his personal knowledge about the conditions prevailing in the place without there being any evidence on record and has not considered the case with a free mind. Hence, it is argued that the prosecution has totally failed to establish the charges framed against the accused.

(3.) There is considerable, force in the contention urged, by the learned Counsel on behalf the petitioner. The only witness examined in this case is P.W.1, the Sub-Inspetor of Police. All that he says is, on 27-9- 1969 at about 4-15 PM. when he was in Coondapur bus stand, he saw the accused soliciting passengers going towards Nagori Byndoor side and also saw the car of the accused parked in the bus stand and a passenger sitting inside the car. The passenger sitting inside the car has not been examined in this case. No explanation has been given by the prosecution as to why this witness has not been examined. It would only show that the accused being a driver of a private car was soliciting passengers going towards Byndoor side. Before the prosecution can get a conviction under S.42(1) of the Act, it is necessary for them to prove that the car in question has been used for carrying passengers for hire or reward and the vehicle in question did not have necessary permit for the said purpose. In the instant case, there is no evidence to show that the vehicle in question has been used for that purpose. All that the evidence discloses is that accused solicited some passengers. Again, before the accused, who is only a driver, can be convicted under S.123 of the Act, it is necessary for the prosecution to prove that he was driving the motor vehicle in contravention of the provisions of Sec.42(1) of the Act. In the instant case, the evidence indicates that the car was parked in the bus stand but there is no evidence to show that the car was used for carrying passengers for hire or reward. There is no evidence to show that either the owner or the driver used the car for carrying passengers for hire without necessary permit. It is, therefore, clear that the prosecution hag not made out the charge under S.42(1) read with S.123 of the Act.