Judgment :- 1. This Revision Petition is by the second accused in S. T. 353 on the file of the Munsiff-Magistrate, Kalpetta. He is the owner of Lorry No. KLD. 2905 and the first accused is the driver. The first accused was found by pw.1 driving the vehicle on the public road at Ambalavayal which is a prohibited route for lorries. pw.1 checked the permit and found that the lorry had no permit to ply on that road. There is also a Government notification prohibiting lorry traffic along that road. pw.1 gave evidence in support of the charge and the first accused admitted having driven the lorry along the road and his permit being checked by pw.1. The second accused pleaded that he was not aware of the fact that the driver took the lorry along the said route and that it was done without his knowledge and consent. The learned Magistrate found both the accused guilty under S.42 [1] read with S.123 of the Motor Vehicles Act and sentenced them to pay a fine of Rs. 50/-each. The second accused is the revision petitioner. 2. The order of conviction is challenged by the learned counsel for the revision petitioner on a two-fold ground (i) that the lorry was not "used" as it was found empty and (ii) that there is no evidence that the owner permitted the driver to take the vehicle along the said route. Both the objections are well taken. 3. S.42 of the Motor Vehicles Act reads as follows: 'No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority (or the Commission) authorising the use of the vehicle in that place in the manner in which the vehicle is being used:" There is a well-defined distinction in the Act between driving and using a vehicle. Consistent with the other provisions of the Act the word "used" in S.42 can only mean the use of the vehicle for the purpose for which the permit is granted, viz., for carrying passengers or goods. This was the view taken by the Madras High Court in In re T. V. Moidu AIR. 1960 Madras 265 where it was held that: ".... This was the view taken by the Madras High Court in In re T. V. Moidu AIR. 1960 Madras 265 where it was held that: ".... where an empty lorry was found at a place outside the route for plying and it was not in the course of business covered by the permit but because it was a short cut route, the provisions of S.42 and 123 of the Motor Vehicles Act could not be said to have been offended." The same is the view taken by the Allahabad High Court in State of U. P. v. Abdul Latif AIR. 1963 Allahabad 229. In this case Ext. P-2 the G. V. R. issued by pw.1 shows that the lorry when checked was empty and there is no evidence that it was being used for transporting goods. 4. Coming to the second objection the learned Magistrate was of the view that mens rea is not a necessary ingredient in a charge under the Motor Vehicles Act and also that the lorry will not be taken along a particular route without the express or implied consent of the owner. Both the proposition of law enunciated by the learned Magistrate and the inference drawn are wrong. In the first place there is nothing in the Act to indicate that every offence committed by a driver may be presumed to have been done at the instance or with the knowledge of the owner. There are provisions where it is expressly stated that such a presumption can be drawn. For example Sub-S. 4 of S.72 specifies that if the driver drives the vehicle in contravention of sub-S. 2 the court may presume that the offence was committed with the knowledge or under the orders of the owner of the vehicle. Similarly where the unladen weight of the vehicle exceeds the weight specified in the certificate of registration, the owner's knowledge may be presumed. It would therefore be seen that where there is no such express provision the owner is not vicariously liable for the offences of the driver without proof of the owner's knowledge or connivance. Moreover it is clear from the wording of S.42 that mens rea of the accused is also a relevant factor. The phrase 'permit the use' occurring in the Section has been interpreted to mean 'intentionally allow'. Moreover it is clear from the wording of S.42 that mens rea of the accused is also a relevant factor. The phrase 'permit the use' occurring in the Section has been interpreted to mean 'intentionally allow'. In an English case Goldsmith v. Deakin (1933),150 L. T. 157 D. C. while dealing with S.67 of the Road Traffic Act which provides that no person shall cause or "permit" a motor vehicle to be used on any road as a stage carriage, etc. unless he is the holder of a licence to use it as a vehicle of that class, His Lordship Lawrence, J. observed: "In my opinion, the word 'permit' means 'intentionally allow," in the sense that one has to consider the state of the defendant's mind". 5. The same view has been taken by a number of courts here also. In Mannasingh v. State AIR. 1960 Madhya Pradesh 151 it was held that the owner cannot be held liable for a case of overloading in the absence of proof that overloading was at his instance or with his approval. In In re Abdul Salaam Rowther AIR. 1943 Madras 41 while dealing with the charge under S.42 (1) and 123 of the Motor Vehicles Act against the owner it was held that mere negligence on the owner's part in not locking up his car so that the driver could not take it did not amount to permitting the use of the oar and further that when the owner is charged under S.42 (1) and 123 of permitting his motor vehicle to be used by his driver the onus is on the prosecution to prove all the ingredients of the offence. In Lunkaran v. State AIR. 1959 Orissa 50 Narasimhan, C. J. after discussing the case law on the subject observed that: "The use of the words, "permit", "allow" and "cause" in S.42 and 123 of the Motor Vehicles Act clearly indicate that mens rea is not ruled out in respect of those offences." It was further held that: "The words 'causes or allows' in S.123 convey the idea that the Legislature did not intend that the master of a motor vehicle should be vicariously liable for the action of his servant and that his liability arises only if he, by his act or illegal omission, permits the driver to contravene the section. Hence the general rule that the prosecution must prove all the ingredients of the offence beyond reasonable doubt, applies when an owner is prosecuted for an offence under S.112 or 123 of the Act In the absence, therefore, of any evidence to show that the owner knew, or connived at the action of the driver in taking the vehicle through an unauthorised road or in carrying more than four servants on the vehicle in contravention of the limit mentioned in the permit, he cannot be held guilty either under S.112 or under S.113 of the Motor Vehicles Act." AIR. 1959 Orissa 50 is on all fours with the instant case. In that case the learned judge observes that: "There is a distinction between plying a motor vehicle without any permit at all or with a permit which had already expired on the one hand and plying a vehicle in contravention of the conditions laid down in a subsisting permit on the other. In the former case the requisite mens rea on the part of the owner may be inferred without any further evidence but not in the latter case." In Nagappa v. 0. B. M. 0. Al. S. P. Firm AIR. 1938 Madras 998 while dealing with a charge under S.16 of the Motor Vehicles Act 8 of 1914 read with R.15-A of the Madras Rules, Horwill, J. observed that: "The wording of S.15-A and the general plan of the Act show that the burden was on the prosecution to show that the accused knew that the lorry was overloaded. Such knowledge could be proved by adducing evidence that, for example, the lorry had just left the owner's premises or that all the goods on the lorry had come from there". 6. Whether or not the owner permitted the use of the vehicles in contravention of the terms of the permit is a question of fact. There is no evidence that the lorry which was being taken from Meppadi to Pambra had necessarily to be taken along the prohibited route. 7. To my mind the easiest way to determine whether the owner permitted or allowed the driver to use the vehicle against the conditions of the permit is to find out whether the owner was benefitted financially or otherwise by the unauthorised plying of the goods vehicle by the driver. Here the G. V. R. Ext. 7. To my mind the easiest way to determine whether the owner permitted or allowed the driver to use the vehicle against the conditions of the permit is to find out whether the owner was benefitted financially or otherwise by the unauthorised plying of the goods vehicle by the driver. Here the G. V. R. Ext. P 2 issued by the Head Constable who checked the vehicle contains the entry Imen empty in the column meant for "description of packages etc." So there is no question of plying for hire or any financial benefit accruing to the owner. Accused 2 contends that he bad directed the driver not to drive the goods vehicle along unauthorised routes. The prosecution failed to prove that the owner knowingly permitted the driver to drive through an unauthorised route. The presumption does not automatically arise that when a goods vehicle is driven along an unauthorised route, the owner must have permitted such an offence to be committed by the driver. It is a fact to be proved. So the conviction under S.42 (1) read with S.123 must fail as the vehicle was not "used" for transport as contemplated in S.42 and the owner had not permitted the use of it. 8. The revision is allowed and the order of conviction passed against accused 2 as well as the order for suspension of the permit for one month are cancelled. The fine if realised will be refunded. Allowed.