1. The petitioner is the owner of a motor lorry. The facts found are thus stated by the learned Joint Magistrate:
On August 18, 1934, Sergeant checked the lorry. It had no G Permit. It contained furniture and boxes belonging to Inspector-General of Prisons, Madras, labelled for Madras, P.W. No. 2, says he took contract from Inspector-General of Prisons and took the accused's lorry. Accused would not take petrol charges as he had been charged by the Police, but when he took the lorry the accused asked for petrol charges. He sent him on four trips. This amounts to hire. There is no defence.
2. The plea of the accused was:
I did not take hire. Pitchamuthu Pillai (P.W. No. 2) asked me to take the lorry. I did not permit. The driver may have taken it.
3. The latter part of this plea was untenable. The accused as owner would be liable if his lorry plied or was let for hire, whether he permitted it or not. The first part of the plea, however, is a good defence if the accused did not take hire. The learned Joint Magistrate says, without giving reasons for his decision, that taking petrol charges amounts to hire. I cannot support this decision. 'Hire' is denned (See Bouvier's Law Dictionary) as a 'bailment in which compensation is to be given for the use of a thing...' The mere payment to the accused of the cost of petrol used while his lorry was at the disposal of P.W. No. 2, is certainly not payment for the use of the lorry. It is equivalent to mere replacement in the petrol tank of the petrol used. There is no payment of compensation for the use of the lorry. The transaction, therefore, does not, in my judgment, amount to one of hiring. The conviction is, therefore, set aside and the fine, if paid, must be refunded.
4. The learned Joint Magistrate has not stated why he imposed the maximum penalty in this case. The learned Public Prosecutor informs me that according to his instructions the accused had been previously convicted of an offence under Section 16 of the Motor Vehicles Act. If that had been proved, the sentence of fine of Rs. 200 would have been legal. In the absence of such proof, the sentence was illegal. There is no mention of a previous conviction in the particulars entered in the learned Joint Magistrate's Register.