1. In this case admittedly the sentence of 100 Rs. fine is not sustainable, as the offence for which it was imposed, is not found to have been a second offence under the section. We should therefore in any case have to reduce it to Rs. 50. But we are not satisfied that the Magistrate has arrived at findings of fact that would justify the legal consequences which he attaches to his findings. He has apparently held the accused guilty of abetment in merely omitting to give information to his employees as to the rules. Abetment by omission would only be punishable, if the omission were an illegal omission. And no provision of law has been cited to us to show that there was any such legal obligation on the accused to communicate the state of the law to his employees as to make his omission an illegal omission. As to abetment by aiding, instigating, or conspiracy, the only evidence in tile case was as to an order said to have been received by telegram which is not now traceable. As to the secondary evidence of such orders, we find that the only record is that of the evidence of the witness Kornalbas, who states that he saw a telegram worded as follows:--' Send up Kornalbas at once'. It is impossible, from that evidence alone, to infer, that the driver was ordered or directed or instigated to disobey the provisions of any rules or laws. The evidence even leaves uncertain the time of the despatch of the order and it cannot be assumed or presumed that it was sent at any particular hour which would make to absolutely necessary to break a rule in order to comply with the order.
2. We are unable to discover any fact stated by the Magistrate to show that the accused directed his driver to do anything which was a breach of law or which would necessarily involve a breach of law and mere omission to instruct him in the law was not in itself illegal so as to constitute punishable abetment.
3. We, therefore, set aside the conviction and sentence and direct the fine, if paid, to be refunded.