UMA SHANKER TEWARY Vs. REX

JUDGEMENT

(1.) THIS is a reference made by the Additional Sessions Judge of Gorakhpur recommending that the conviction of Uma Shanker Tewary, driver of a motor vehicle, and R.K. Bajpai, the Manager of the Shankar Sugar Mills Ltd., Captainganj, Deoria, be altered from one under Section 123, Motor Vehicles Act, Act IV [4] of 1939, to one under Section 112 of the said Act, and the fines imposed upon the applicants by a first class Magistrate of Gorakbpur be reduced.

(2.) THE facts which have given rise to this reference may shortly be stated as follows : A motor truck used for carrying goods belonging to the Shankar Sugar Mills Ltd., was being driven by Uma Shanker Tewary, the driver. On 18th August 1946, an Enforcement Squad Inspector checked the truck in question and found that (l) its fitness certificate had expired on 3rd April 1946, and there was no such certificate in existence on 18th August 1946 when it was being plied; (2) that the currency of the driver's licence had expired on 5th May 1946, and the driver Uma Shanker Tewary was driving it without the licence having been renewed; and (3) that it was loaded with steel pipes which projected at the back of the truck beyond its body to the extent of 9 ft. while the permissible projection was only 4 ft. and in this way Rule 191 (h) (iii), Motor Vehicles Rules had been contravened. Uma Shanker Tewary, the driver, and R.K. Bajpai, the Manager of the Shankar Sugar Mills, Ltd., were, therefore, prosecuted, R.K. Bajpai being obviously prosecuted as the owner of the vehicle, under Sections 112 and 123 of the said Act. Uma Shanker Tewary pleaded that he was not the driver, but that one Ram Kishen was driving the truck. R.K. Bajpai admitted that he was the Manager of the Shankar Sugar Mills Ltd., but pleaded that he was not liable.

(3.) THE Magistrate held that Uma Shanker Tewary was in fact driving the truck. He further held that R.K. Bajpai was liable as an owner of the vehicle. He, therefore, convicted both the accused under Sections 112 and 123, Motor Vehicles Act, on the ground that they had contravened the provisions of Section 42 of the Act. He sentenced Uma Shanker Tewary to a fine of Rs. 75 and "owner" R.K. Baipai to a fine of Rs. 190. In default of payment of fines, Uma Shanker Tewary was to undergo simple imprisonment for 15 days and R.K. Bajpai for one week. He further convicted Uma Shanker Tewary under Section 112 of the Act and sentenced him to pay a fine of Rs. 5 or in default of payment of fine to undergo simple imprisonment for 5 days. This was on account of his driving the truck with a expired licence. He further convicted Uma Shanker Tewari under Section 112 of the Act read with Rule 191, U.P. Motor Vehicles Rules for placing pipes in such a way that they were projecting 9 ft. beyond the body of the truck. He imposed a sentence of fine of Rs. 5 on this count and ordered that in default of payment of fine Uma Shanker Tewary was to undergo simple imprisonment for 5 days. Uma Shanker Tewary was also declared disqualified for 4 months for holding any licence for driving any car under Section 17 (1) of the Act. Against this order the accused filed an application in revision to the Sessions Judge of Gorakhpur.