M K AHAMED Vs. STATE OF KERALA

JUDGEMENT

(1.) This Revision Petition is by the second accused in S. T. 353 on the file of the Munsiff Magistrate, Kalpetta. He is the owner of Lorry No. KLD. 2905 and the first accused is the driver. The first accused was found by Pw. 1 driving the vehicle on the public road at Ambalavayal which is a prohibited route for lorries. Pw. 1 checked the permit and found that the lorry had no permit to ply on that road. There is also a Government notification prohibiting lorry traffic along that road. Pw. 1 gave evidence in support of the charge and the first accused admitted having driven the lorry along the road and his permit being checked by Pw. 1. The second accused pleaded that he was not aware of the fact that the driver took the lorry along the said route and that it was done without his knowledge and consent. The learned Magistrate found both the accused guilty under S.42(1) read with S.123 of the Motor Vehicles Act and sentenced them to pay a fine of Rs. 50/- each. The second accused is the revision petitioner.

(2.) The order of conviction is challenged by the learned counsel for the revision petitioner on a twofold ground (i) that the lorry was not "used" as it was found empty and (ii) that there is no evidence that the owner permitted the driver to take the vehicle along the said route. Both the objections are well taken.

(3.) S.42 of the Motor Vehicles Act reads as follows: