Judgment :- 1. This reference under S.438 Crl. P.C., is by the learned Sessions Judge of Quilon recommending that the conviction entered against the accused by the court of the Honorary First Class Bench Magistrate, Quilon be quashed. The accused owns a cycle-rickshaw. The case against him was that he defaulted to pay the tax for the years 1959-60; 60-61; and 61-62 under the Travancore-Cochin Vehicles Taxation Act, 1950 (shortly stated the Act). Accused denied having a cycle-rickshaw, but on the evidence the contention was negatived and this finding is not challenged. 2. S.8 of the Act is the penal section and it reads: "If the tax due in respect of any vehicle has not been paid the registered owner or person having possession or control thereof shall be punishable with fine which may extend to fifty rupees and the amount of the tax due by him in respect of such vehicle for the quarter or quarters or half year or year concerned shall also be recovered as if it were a fine". S. 3 of the Act says that: "(1) Government may by notification in the gazette from time to time direct that a tax shall be levied on every vehicle using any public road in the State. (2) The notification issued under sub-s. (1) shall specify the rates at which and the year, half year or the quarter for which the tax shall be levied. xxxxx S. 5 enjoins on the owner or person having possession or control of the vehicle, to pay a tax and obtain the annual licence. Schedule III of the Act gives the classes of vehicles and the respective amount of tax. By a notification dated 13-1-1958 and published in the Gazette dated 21-1-58 the Government of Kerala had exempted rickshaws from the payment of tax (vide 1958 KLT. Acts and Statutes page 31). 3. The simple question for decision here is whether cycle rickshaw would come within the term 'Rickshaw' so as to be entitled to exemption. Rickshaws and cycle-rickshaws are not defined in the Act. The Bench of Magistrates were of opinion that S.3 of the Act enjoins that tax has to be paid for all vehicles using any public road. 3. The simple question for decision here is whether cycle rickshaw would come within the term 'Rickshaw' so as to be entitled to exemption. Rickshaws and cycle-rickshaws are not defined in the Act. The Bench of Magistrates were of opinion that S.3 of the Act enjoins that tax has to be paid for all vehicles using any public road. S.2 (11) of the Act says that'vehicle' will include every wheeled conveyance which is used or capable of being used on a public road and so they say cycle-rickshaw being a vehicle, tax has to be paid and licence obtained under S.5 of the Act. They have not considered whether cycle-rickshaw is included under any one of the items mentioned in the schedule and whether cycle-rickshaw would be included in the term 'rickshaws' in which case payment of tax is exempted by the Government. Learned Sessions Judge has referred to Schedule III of the Act as seen on page 369, Vol. I, Travancore-Cochin Code, first edition and stated, item 3 there, is "every two wheeled vehicle other than a rickshaw" and this cannot obviously apply to a cycle-rickshaw as it is not a two-wheeled vehicle. This schedule has been replaced by a later notification dated 20-6-50 and published in the gazette dated 15-7-50, which probably was not brought to the notice of the learned Sessions Judge. There items 3 is "For every two wheeled or three wheeled vehicle other than a rickshaw to be drawn or pushed by human agency." Cycle-rickshaw will not come within this item because even though it is a three-wheeled vehicle it is not drawn or pushed by human agency, but is one which is propelled. 4. We may in this connection refer to the definition of Rickshaw in the latest Act - The Kerala Hackney Carriage Act, 1963. S.2(10) defines 'rickshaw.' It means 'a two-wheeled vehicle or a tricycle of special type drawn or propelled by a person and includes a cycle-rickshaw.' (Vide 1963 KLT. Acts p. 71) So cycle-rickshaw cannot come within any of the items in Schedule III and can come in only within the item rickshaw and rickshaw being exempted from the payment of the tax, the accused is; not bound to pay any tax. The conviction of the accused is, therefore, unsustainable in law. In the result, we accept the reference and set aside the conviction and sentence passed on the accused. The conviction of the accused is, therefore, unsustainable in law. In the result, we accept the reference and set aside the conviction and sentence passed on the accused. Fine if paid would be refunded. Reference accepted.