ORDER Heard both parties. 2. The above revision is directed against the order of the Sessions Judge, Kanyakumari dated 7.8.1995 in C.A.No.35 of 1995 confirming the conviction and sentence imposed by the Chief Judicial Magistrate, Kanyakumari by his order dated 10.3.1995 in C.C.No.45 of 1994. 3. The petitioner was facing a trial in C.C.No.45 of 1994 before the Chief Judicial Magistrate, Kanyakumari for the offences punishable under Sec.279, 337 and 304-A of Indian Penal Code with regard to the alleged occurrence said to have been taken place at 10.30 a.m. On 7.2.1994 when the petitioner who was a trainee in Thiruvalluvar Transport Corporation committed rash and negligent act while taking the bus bearing Registration No.TMM.960 out of Depot which is located in an elevated portion. 4. 12 witnesses were examined viz., P.Ws.1 to 12, 14 documents were marked as Exs.P-1 to P-14 and one material object was marked on behalf of the prosecution. It is suffice to state that P.Ws.1 to 3 were eye witnesses and P.W.8 was the Instructor of the Thiruvalluvar Transport Corporation, P.W.9 was Motor Vehicle Inspector and P.W.11 was the Investigating Officer. 5. In the light of the evidence on record the learned Chief Judicial Magistrate, Kanyakumari convicted the petitioner for the offences mentioned above and imposed a fine of Rs.2, 000 for the offence punishable under Sec.304-A, I.P.C. and a further fine of Rs.500 for the offence punishable under Sec.337, I.P.C. and on appeal in C.A.No.35 of 1995 the conviction and sentence imposed by the Chief Judicial Magistrate, Kanyakumari was confirmed by the Sessions Judge, Kanyakumari by his order dated 7.8.1995. 6. Mr.Baskar learned counsel for the petitioner challenges the order of conviction and imposition of fine by the courts below on the following grounds: 1. The petitioner is entitled for the benefit of doubt as the identity of the accused was not proved; 2. Even though in the charge sheet one Mr.Mani was shown as the Motor Vehicle Inspector, who examined the Motor Vehicle was not examined in the trial, but one Mr.Ilango was examined as P.W.9 as Motor vehicle Inspector and therefore, it attracts Sec.294 of Criminal Procedure Code. 3. There is no evidence on record to show that the petitioner drove the vehicle at all to constitute an offence under Sec.304-A, I.P.C. viz., committed a rash and negligent act. 7. 3. There is no evidence on record to show that the petitioner drove the vehicle at all to constitute an offence under Sec.304-A, I.P.C. viz., committed a rash and negligent act. 7. Mr.N.R. Ilango, learned Government Advocate placing reliance on the evidence of P.Ws.8 and 11 stated that the identity of the petitioner was properly proved by the prosecution to the satisfaction of the courts below. 8. P.W.8 as an Instructor, categorically states that the petitioner who was working as a trainee under the Thiruvalluvar Transport Corporation took the bus TMN.9607 without getting permission from him cashed the same on the shops and thus committed a rash and negligent act. Against the learned Government Advocate invited my attention to the evidence of P.W.11 who is the Investigation Officer that the petitioner himself surrendered before the police station and later on released on bail. That apart, P.W.11 also rejected the suggestion of the prosecution that there was no connection between the petitioner and the said incident and also denied that the petitioner was deliberately implicated in the above criminal case. So in view of the above evidence, I am satisfied that the identity of the petitioner was properly established by the prosecution. 9. With regard to the second contention regarding the non-examination of one Mr.Mani who was shown as Motor Vehicle Inspector, it has to be noted that when P.W.9 was examined as Motor Vehicle Inspector there was not even a suggestion in the cross examination by the petitioner that he was not a Motor Vehicle Inspectoral all. In the absence of such suggestion at the proper stage, the petitioner is not entitled to contend that the non-examination of the Motor Vehicles Inspector who inspected the vehicle, vitiated the proceedings attracting Sec.294 of the Criminal Procedure Code. In the instant case, admitted, P.W.9 was examined as a Motor Vehicle Inspector and that makes all the different to hold that Sec.294 of the Criminal Procedure Code. Had the petitioner taken that defence at the earliest point of time at the trial or at least as a ground in the appeal certainly this contention would have been considered by the courts below. Therefore, I am not in a position to appreciate the contention of the counsel for the petitioner on the ground that orders of conviction and sentence are attracted for non-compliance of Sec.294, Criminal Procedure Code. Therefore, I am not in a position to appreciate the contention of the counsel for the petitioner on the ground that orders of conviction and sentence are attracted for non-compliance of Sec.294, Criminal Procedure Code. Hence, the reliance placed on by the learned Counsel for the petitioner in the decision of Chinnaian v. State, etc. Chinnaian v. State, etc., (1995) 2 L.W. (Crl.) 493 is erroneous. In the said case, except filing the report of the Motor Vehicle Inspector, Motor Vehicle Inspector was not at all examined and therefore, this Court, while interpreting Sec.294 held that examination of the Motor Vehicle Inspector is mandatory and the non-examination of the Motor Vehicle Inspector would vitiate the case of the prosecution. In the instant case admittedly P.W.9 was examined as a Motor Vehicle Inspector and that makes all difference to hold that Sec.294, Crl.P.C. is not attracted in the instant case. 10. With regard to the third contention viz., the prosecution has failed to prove that the driver drove the vehicle rashly and negligently. As there was no evidence on record that the petitioner in fact drove the vehicle, I am not able to appreciate the contention of the learned counsel for the petitioner because what is contemplated to constitute an offence under Sec.304-A is not an act of driving the vehicle in a rash and negligent manner. When it is not established by the prosecution that the petitioner was controlling the vehicle. Whether the petitioner switched on the engine and drove the vehicle is immaterial as it is sufficient if the prosecution satisfied that the petitioner failed to apply the brake and control the vehicle which amounts to a rash and negligent act. The failure of such act of applying the brake in controlling the vehicle certainly would amount and constitute a rash and negligent act punishable under Sec.304-A, I.P.C. 11. Therefore, for all these reasons, I do not find any good and sufficient reason to interfere with the order of conviction of the courts below. 12. But however, taking into consideration that the petitioner is a young boy I am obliged to apply the ratio laid down in the decision of this court in Gopalan IN RE. Gopalan IN RE., 1986 L. W. (Crl.) 58, as relied on by the petitioner, wherein, this Court has held as follows: “9. 12. But however, taking into consideration that the petitioner is a young boy I am obliged to apply the ratio laid down in the decision of this court in Gopalan IN RE. Gopalan IN RE., 1986 L. W. (Crl.) 58, as relied on by the petitioner, wherein, this Court has held as follows: “9. Coming to the question of sentence, Mr.N.T. Vanamamalai would submit that the petitioner, who is a driver in Kattabomman Transport Corporation, would lose his job even if a fine of Re.1 is imposed on him and that if a sentence of fine is imposed, the petitioner who is not at all involved so far in any case, would lose his job resulting in irreparable hardship to his family. Making the above submission, he would plead that this Court may be pleased to invoke the benevolent provisions of the Probation of Offenders Act. Having regard to the above submission made by the learned counsel for the petitioner, while confirming the conviction, I set aside the sentence of fine imposed on the petitioner, and instead, invoking the provisions of Sec.4 (1) of the Probation of Offenders Act, I direct the petitioner to be released on probation of good conduct, on his entering into a bond for a sum of Rs.1, 000 with one surety to appear and receive sentence when called upon during a period of six months, and in the meantime to keep the peace and be of good behaviour. In this connection, I would like to make it clear that as contemplated under Sec.12 of the Probation of Offenders Act, the petitioner shall not suffer disqualification, if any, attaching to this conviction. Subject to the above modification, the appeal is dismissed. The fine amount if already collect will be refunded to the petitioner.” 13. In this connection, I would like to make it clear that as contemplated under Sec.12 of the Probation of Offenders Act, the petitioner shall not suffer disqualification, if any, attaching to this conviction. Subject to the above modification, the appeal is dismissed. The fine amount if already collect will be refunded to the petitioner.” 13. Since the above decision is applicable to the facts and circumstances of the case, I am satisfied to apply the principles laid down in the above decision, and therefore, I set aside the sentence imposed on the petitioner and instead, invoking the provisions of Sec.4(1) of the Probation of Offenders Act, I direct the petitioner to be released oh probation of good conduct, on his entering into a bond for a sum of Rs.1, 000 with one surety to appear and receive sentence when called upon during a period of six months, and in the meantime to keep the peace and be of good behaviour. In this connection, I also make it clear that as contemplated under Sec.12 of the Probation of Offenders Act, the petitioner shall not suffer disqualification, if any, attaching to this conviction. 14. Subject to the above modification, the revision is dismissed. No costs. B.S.-----Revision dismissed.