STATE OF KERALA Vs. KUNJAPPANı

JUDGEMENT

(1.) The first accused, the owner, and the second accused, the driver, of the car K. L. K. 2776 were charged under S.123 of the Motor Vehicles Act, read with S.42(1) of that Act. Both of them pleaded guilty; but the first accused alone was convicted and sentenced to pay a fine of Rs. 15/-, and in default of payment of fine, to undergo simple imprisonment for seven days. The second accused was acquitted. In acquitting him, the learned Magistrate relied on the case, State v. Vasant Baburao, AIR 1957 Nagpur 94, and held, that the owner alone and not the driver, could be punished under S.123 of the Act. This view is directly opposed to two bench decisions of this court in State v. Kesavan, 1958 KLT 934 : 1958 KLJ 1185 and State v. Raghavan Pillai, 1958 KLT 1136 . It was ruled in these cases, that the driver also is liable under S.123 read with S.42(1) of the Act. The judgment of the learned Sub-Magistrate under appeal was rendered on the 21st April, 1959, and it is surprising, that he did not refer to the two decisions of this court, but chose to follow the decision of the Nagpur High Court. It follows, that the acquittal of the second accused cannot be maintained. Having pleaded guilty to the charge, it remains only to convict him under S.123 read with S.42(1) of the Act, and I do so accordingly, and I sentence him to pay a fine of Rs. 10/-, and in default of payment of fine, to undergo simple imprisonment for seven days. The appeal is allowed.