CHELLIAH v. COOPER

054-NLR-NLR-V-39-CHELLIAH-v.-COOPER.pdf


172
Chelliak v. Cooper.
1937Present: Abrahams C.J.
CHELLIAH v. COOPER.
644—M. C. Colombo, 39,345.
Motor car—Charge of loitering on a highway—Burden of proof—OrdinanceNo. 20 of 1927, Schedule 4, r. 31.
Where the driver of a motor car was charged under regulation 31 inschedule 4 of the Motor Car Ordinance, which is as follows : —
No driver of a motor cab, while hired shall, unless requested by thehirer, stop his cab for a longer time than is reasonably necessary, and,if he is not engaged for hire, he shall not stop his cab except on a publicstand. He shall not loiter by driving his cab in a highway when notengaged for hire.
Meld, that the burden .was upon the accused of proving that he wasengaged for hire.
The Madaliyar, Pitigal Korale North v. Kiri Banda (12 N. L. R. 304)followed.
^^PPEAL from a conviction by the Municipal Magistrate of Colombo.
Li. A. Rajapakse (with him Colvin R. de Silva), for accused, appellant.
M. F. S. Pulle, C.C., for complainant, respondent.
Cur. adv. vu It.
173
ABRAHAMS C.J.—Chelliah v. Cooper.
November 16, 1937. Abrahams C.J.—
The appellant was convicted of the charge of halting a hiring carat a place other than a public stand when not engaged for hire in breach.of regulation 31 in Schedule 4 of the Motor Car Ordinance, No. 20 of1927. That regulation reads as follows : —
“ No driver of a motor cab, while hired shall, unless requestedby the hirer, stop his cab for a longer time than is reasonably necessary,and, if he is not engaged for hire, he shall not stop his cab except on apublic stand. He shall not loiter by driving his cab in a highwaywhen not engaged for hire.”
The evidence against the appellant was that of the Sub-Inspectorof the special traffic police. He testified that at 9.30 a.m. he saw thehiring car of which the appellant was the driver halted in Leyden Bastianroad. There was no hiring car stand at that spot and the appellanthad no entry in his engagement book to show that his car had beenhired. Now so far as I understand, hiring car drivers are under no dutyto keep engagement books. The Police Officer accosted the appellantwho said that he had come to the spot because he was booked for hire.Afterwards (the witness did not say how long afterwards) some passengersfrom a ship came with a Mr. Dep and went into a shop, and then theycame up to the car and after an argument lasting, the. witness said,for about ten minutes, they got into the car and drove away. Deptold the witness that he had booked the car for hire. Dep gave evidenceand said that he ran a Tourist Agency and had a special clientele ofpassengers who passed through Colombo. He said*/that on the dayin question he received a letter from a Major Abbot saying that he waspassing through Colombo (the production of this letter was objected toand was not admitted). Dep said that on receiving this letter he wenton board the “ Otranto ” that morning and came ashore with MajorAbbot and his party of seven. While the passengers were at the moneychangers changing their money, Dep went to the Victoria arcade whichis close by the Jetty and told a certain Wijeratne who was a motor carproprietor to get him three cars and to keep the cars near Siedles as theywere going to that shop. Dep then went to the Jetty, rejoined thepassengers and went with them to Siedles. Meanwhile the appellanthad arrived with his car. Some of the passengers went to the KodakCompany and Dep remained talking with the others. He endeavouredto explain to the Sub-Inspector of Police that the cars were hired. Thisevidence was corroborated by Wijeratne who said that he had a TouristAgency Office at the Victoria arcade and that he owned eight cars.A little after 9 a.m. on the day in question Dep booked two cars to goto Kandy and one for town running, and Dep asked him to keep the carsnear Siedle’s shop and he did so.
The learned Magistrate said that he did not believe the story of Depand Wijeratne that the cars were booked after the passengers came to theJetty and that they wanted the cars kept at the spot. He said thatif the cars had been booked and the passengers were in the Jetty changingtheir money he could not understand why the car was kept in LeydenIBastian road a spot not in full view of the Police, and that the correct
174
ABRAHAMS C.J.—Chelhah v. Cooper.
thing for the appellant to have done, if the car had been booked, wasto have gone to the Jetty and to have picked up the passengers. Heheld that the truth of the matter was that the car was not booked at thetime but that Dep, who he said was a sort of commission agent for hiringcars, had expected to get some bookings and so had these cars keptat this rather out of the way spot till he discovered how many bookingshe had. The conversation the passengers had .at the spot also indicatedthat there was some argument and that everything had not been fixedand agreed on after the time that the appellant had been charged.
It was objected that the Magistrate had wrongly placed upon theappellant the burden of proving that he was hired. I am by no meanssatisfied that, he did place the burden of proof upon the appellant, but ifhe did so, I think that the wording of the regulation which the appellantwas charged with inf ringing / warranted the placing of the onus on theappellant. I do not think that it is necessary to discuss any principleof law which warrants the placing of the onus upon the appellant becauseI think that I am bound by the Full Bench decision in the case of TheMudaliyar, Pitigal Korale North v. Kiri Banda,1 which I find indistin-guishable from this c.ase. Learned Counsel for the appellant has citedthe more recently decided case of Nair v. Saundias' where a Bench ofthree Judges, of whom I was one, decided that the onus of provingthat an offence had been committed against section 80 (3) (b) was uponthe prosecution,. but when one examines the reasons for that decisionit is obvious that it is not in conflict with the other case cited.
The second ground of appeal is that in any event the appellant hadsatisfactorily shown that he was engaged for hire. This is not an easycase to decide, in my opinion, and I feel that the learned Magistratehas given undue importance to the ten minutes argument to which thePolice Officer testified. There is nothing to indicate between whomthe argument was taking place and what was the subject of it.. Therewas no reason to assume that the argument had anything to do with thehiring of a car. It is by no means impossible that whatever the touristshad intended to do during their stay in Colombo it would be necessaryfor them to have cars, that they agreed to do this, and that Dep hadgone ahead, as he says, to have the cars ready at a spot to which someof them said they wanted to go. It is no- less possible that the planswere made and that one -of the passengers had suddenly rememberedthat there was some place that he wanted to see, or some person hewanted to visit, and was finding it difficult to fit this in with the plansalready made, whatever these might have been. I think that the learned.Magistrate has pushed this question of the argument too far. If Depdid go' aboard to meet Major Abbot and came ashore with the passengers,why is it to be supposed that no plan had been made for an excursionoutside Colombo, or a tour round Colombo, and that Dep was not givenpermission to engage cars for them ? That seems to me to be more likely.than that the passengers would have gone ashore without any planat all and that Dep had rushed away when they reached the Jetty toprocure cars in the hope of being able to persuade them to hire the cars,nor can I see any reason why the appellant’s car should not have been> IS N. L. R. 304.1 -l- -V. t. R. 439.
SOERTSZ J.—Samarasinghe v. Secretary, District Court, Matara. 175
■told to wait in Leyden Bastian road instead of coming to the Jetty.The Jetty is no great distance away, and if a car drives up to the Jettyit is not allowed to wait there. The question is whether the appellanthad offered an explanation which the learned Magistrate was justifiedin rejecting. An accused person in a case where the onus is placedupon him is not obliged to do anything more than to raise a reasonabledoubt in the mind of the Court. I think there was a reasonable doubtin this case, and I quash the conviction and acquit the appellant.
Conviction quashed.