Mens rea is a necessary ingredient of the offence under Section 123 of the Motor Vehicles Act, and the owner cannot be held vicariously liable for the act of his servant or agent unless he has a guilty mind.

( 1 ) THIS revision is directed against the judgment of the learned Sessions Judge, Bareilly dated January 1, 1973 convicting Gur Bux Singh, the owner of vehicle No. UPM 3783 and Namdar Khan, its driver. Vehicle U. P. M. 3783 was a public carrier. The prosecution case was that the aforesaid vehicle was inspected by Dinesh Singh, Assistant Regional Transport Officer (E) Bareilly on September 4, 1964 at about 12. 55 p. m. at Bareilly Shahjahanpur road between 1-2 miles from Bareilly. On inspection Namdar Khan, the applicant No. 2 was found illegally driving the aforesaid vehicle without the registration certificate, fitness certificate, permit, insurance certificate, tax token and goods tax payment receipt. The public carrier was thereafter taken to the Thana and a complaint was filed thereafter against Gur Bux Singh, the owner and Namdar Khan, the driver.

( 2 ) BOTH the applicants pleaded not guilty. The defence of Gur Bux Singh, the applicant No. 1 was that he had surrendered the vehicle in September, 1963 and. therefore, none of the documents was with him. It was further asserted by him that the vehicle was parked at Gujral Petrol Pump near Shahjahanpur. that he had absolutely no knowledge of the said public carrier having been taken out by Namdar Khan. Namdar Khan, the applicant No. 2 simply denied the charge and pleaded not guilty.

( 3 ) AFTER examination of the evidence the courts below found that the vehicle in question had not been parked at the Gujral Petrol Pump and that the evidence showed that the vehicle was coming from Shahjahanpur side and was stopped and checked by Dinesh Singh, A. R. T. O. resulting in the discovery of illegalities mentioned above. The Magistrate convicted the applicants of the various offences in respect of which the complaint had been filed. In appeal the conviction and sentences awarded to the applicants were substantially maintained but the conviction of Gur Bux Singh Under Section 123. on the count of plying vehicle without permit was set aside. Aggrieved by the aforesaid judgments the present revision has been filed by the applicants in this Court.

( 4 ) SRI S. P. Gupta, counsel appearing for the applicants did not challenge the findings recorded against the applicants by the two courts below that the vehicle was found to be without the registration certificate, fitness certificate, permit, insurance certificate, tax token and goods tax payment receipt. He. however, questioned the legality of the conviction of the applicants for not having found in possession of the various things mentioned above. It may be mentioned that the two applicants before me were convicted by the courts below for not having obtained the aforesaid certificates and other documents mentioned above.

( 5 ) THE first question that was raised by the learned Counsel for the applicants was that Gur Bux Singh, the applicant No. 1 could not be convicted for the various offences for which he was found guilty inasmuch as he was admittedly not present on the spot when the vehicle was checked by the A. R. T. O. This, according to the learned Counsel for the applicants shows that the applicant No. 1 did not have requisite mens rea which was necessary to be established by the prosecution in the instant case for holding him guilty. Sri V. P. Goel, learned Counsel for the State, however, contended that Section 123 of ihe Motor Vehicles Act (hereinafter referred to as the Act) casts vicarious liability on the owner if a servant or agent is found using the vehicle contrary to the provisions of the Act and in this case as Namdar Khan was found using the vehicle without the documents mentioned above, the owner was liable for the act of Namdar Khan. According to the submission of Sri Goel, the offences contemplated by the various sections of the Act impose an obligation which is absolute and since the ingredients of the various offences were proved by the State, there was no requirement of proving that the applicant No.