1. In C.C. No. 23 of 1948-49 on the file of the Special First Class Magistrate, Tumkur, the petitioner along with four others was prosecuted for having contravened Rule 81 (2) read with Rule 121, Defence of India Rules and also the Notification No. F.F. 169 dated 4th October 1948 issued by the District Magistrate, Tumkur District, on the ground that a certain quantity of rice without a permit was being transported from Tumkur to Bangalore. Accused 1 was the driver of the lorry, and accused 2 and 3 were the servants seated in the lorry, at the time the lorry was stopped the luggage was checked and seized on the way between Tumkur and Bangalore, Accused 4 was alleged to be the person who despatched the rice from Tumkur, and the petitioner was accused 5 said to be the owner of the lorry. The learned Magistrate acquitted accused 4 giving him the benefit of doubt but convicted all the rest. Accused 1 to 3 have not challenged the conviction, but the petitioner contends that on the facts of the case there is no warrant for his being considered guilty of the offence alleged against him.
2. For the purpose of this petition, it is unnecessary to discuss the evidence let in by the prosecution, as nothing turns upon that, and the point really arising for decision is whether inspite of what is alleged by the prosecution, the Defence of India Rules and the Notification justify the conviction. It is conceded that beyond the fact of the lorry being registered in the name of the petitioner, there is absolutely nothing to connect the accused with the offence imputed to him. The learned Advocate-General has not referred to any provision either in the Defence of India Rules or the Motor Vehicles Act to show that by reason of mere registration of a motor vehicle in the name of an individual, he can be deemed to be guilty of any offence committed by another by using that lorry or vehicle. On the other hand, Sri Somanatha Iyer on behalf of the petitioner argues that registration is only meant to facilitate the collection of Government dues such as taxes, and by itself does not constitute title deed, and having regard to the volume of oral and documentary evidence, whatever initial presumption may arise from the registration of the vehicle in the name of the petitioner, it is dispelled and rebutted effectively.
3. According to the petitioner, the lorry was nominally made out in his name as a security for the amounts advanced by him to one Murigappa and, therefore, to all intents and purposes, Murigappa himself acted as the owner. It is he that let it out on hire to others, received amounts due by others who used it, arranged to get renewal of the license, made periodic payments and in fact did all that was necessary to keep the lorry in service. Murigappa examined as D. W. 3 unequivocally speaks to this, and Ex. D series corroborate his version. The learned Magistrate has remarked that the petitioner did not in his statement make reference to the transaction between him Murigappa for the purpose of registration in his name. A perusal of the statement goes to show that he has in fact not only stated that the owner of the lorry is not himself but Murigappa, and the reason for the lorry being registered in his name is that it was meant to be a security for the loan advanced by him. The learned Magistrate has referred to Ex. D series, and finding that these are not sufficient to disprove his ownership, convicted the petitioner. He has, however, overlooked that even so, it would not be sufficient to render the petitioner liable for the offence. Rule 121, Defence of India Rules says that any person who attempts to contravene or abets or attempts to abet or does any act preparatory to a contravention of the rules or any order made there in shall be deemed to have contravened that provision. It is not disputed that the burden of establishing that there was either an attempt to contravene or attempt to abet or do nay act preparatory to a contravention of the provision, lies on the prosecution and in support of it no evidence whatever is available. No statutory provision or authority to justify a conviction of the registered owner of a motor vehicle in the absence of anything done or said by him for facilitating to commission of an offence, has been brought to my notice. The provision relied upon being a penal one, has to be strictly construed, and that being so, in my opinion the conviction cannot stand.
4. It is accordingly set aside and the petitioner acquitted. The fine, if paid, will be refunded.
5. Conviction set aside.