PETITIONER: GAJANAN KRISHNAJI BAPAT & ANR. Vs. RESPONDENT: DATTAJI RAGHOBAJI MEGHE & ORS. DATE OF JUDGMENT18/07/1995 BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) MUKHERJEE M.K. (J) CITATION: 1995 AIR 2284 1995 SCC (5) 347 JT 1995 (5) 410 1995 SCALE (4)469 ACT: HEADNOTE: JUDGMENT:
J U D G E M E N T
DR. ANAND. J.
This appeal under Section 116-A of the Representation
of People Act 1951 (hereinafter referred to as the Act). by
two electors is directed against the judgment and order of a
learned Single Judge of the Nagpur Bench of the High Court
of Judicature at Bombay dismissing the election petition.
The returned candidate has also filed cross-objections
challenging those findings which have gone against him. Both
shall be disposed of by this common judgment.
The appellants filed an election petition under Section
80 of the Act challenging the election of respondent No.1,
Dattaji Raghobaji Meghe, the returned candidate from 23
Nagpur Parliamentary Constituency in the elections held for
the Xth Lok Sabha and also sought a declaration to the
effect that respondent No.2 Shri Banwarilal Bhagwandas
Purohit be declared as the duly elected candidate from the
said Constituency after setting aside the election of the
returned candidate. The challenge to the election of
respondent No.1 was mainly based on the allegations of
commission of various corrupt practices by him and/or his
election agent detailed in the petition.
Appellant No.1 was at the relevant time the Vice
President of Bhartiya Janta Party (Nagpur City) Nagpur while
appellant No.2 was a worker of the Bhartiya Janta Party.
Respondent No.2, Shri Banwarilal Bhagwandas Purohit, the
defeated candidate had been sponsored as a candidate by the
Bhartiya Janta Party while respondent No.1 Datta Raghobaji
Meghe, the returned candidate, had been sponsored by
Congress (I). Besides respondents 1 and 2, the other
candidates, who had contested the election and had not
withdrawn their candidatures from the contest, numbering
more than forty two were also joined as respondents to the
election petition.
The main case of the appellants projected before the
High Court and canvassed before us against the returned
candidate was that the expenditure incurred or authorised by
respondent No.1 or his election agent was much more than
what had been disclosed by him in the return of expenditure
lodged under Section 78 of the Act with the District
Election officer and that huge expenditure incurred by him
in connection with his election had been suppressed. It was
further alleged that though the expenditure incurred in
connection with the election of respondent No.1 was shown to
have been incurred by the political party, some other
sympathetic associations, organisations, individuals,
friends and well-wishers, the said expenditure in fact had
been incurred and/or authorised by respondent No.1 and/or
his election agent and the amount spent by those
organisations had been provided out of the funds made
available by respondent No.1 to those parties for making the
payment and their names were given only to conceal the truth
of the transactions so as to escape from the mischief of
Section 123 (6) of the Act. It was pleaded that some of the
organisations under whose names the advertisements had
appeared, were in fact non-existent and that the individuals
who were shown ostensibly to have incurred some expenditure
for furtherance of the prospects of the election of
respondent No.1, had actually no funds of their own to spend
and respondent No.1 had placed his own funds in their hands
to meet the expenditure. According to the appellants, the
expenditure incurred by respondent No.1 was far in excess of
the limit prescribed by Section 77 of the Act read with Rule
90 of the Conduct of Election Rules 1961 (hereinafter the
Rules’) and the return of election expenditure did not
reflect the correct state of affairs. Since respondent No.1
had exceeded the prescribed limit of expense, he was guilty
of committing the corrupt practice under Section 123 (6) of
the Act and his election was, therfore, liable to be
declared void and respondent No.1 also disqualified for
committing the corrupt practice.
Respondent No.1 before filing his written statement
raised a preliminary objection, through Ex.16 and Ex.17, to
the effect that the allegations made in the petition were
vague and that material facts and particulars had not been
supplied and as such the vague pleadings were liable to be
struck off and the election petition rejected under Section
81(3) read with Section 86 of the Act. On 29.10.1991,
however, Ex.16 was rejected while application Ex.17 was
allowed to the extent that the allegations made in the
petition regarding the commission of corrupt practice under
Section 123(2) and (3A) were found to be vague and non-
specific and the pleadings in that connection were directed
to be struck off. Against the order of rejection of the
preliminary objection raised in Ex, 16, respondent No.1
preferred a special leave petition being SLP(c) No.19165-
66/91 in this Court which was dismissed on 20th December
1991 by the following order :
“The special leave petitionis –
dismissed. However,this order will not
prevent him from raising objections,
which are available to him according
to law, when the evidence is made
on the relevant allegations.”
Subsequently, an application, Ex. 27, filed by the
appellants for leave to amend the election petition for
correcting certain inadvertant “errors, omissions and slips”
was allowed on 28.11.1991 and the necessary corrections were
carried out in the election petition. Again an application
Ex. 47/A filed by the appellants seeking further amendment
of the verification clause of the petition was allowed by
the Court on 18.01.1992, after an earlier application, Ex.
44, filed by the appellants seeking amendment of the
election petition had been allowed on 18.12.1991.
A detailed written statement was thereafter filed by
respondent No.1 in which the charges levelled against him in
the election petition were vehemently denied. Respondent
No.1, in respect of certain items of expenditure, took a
specific stand that the expenditure on those items as
detailed by the appellants in the election petition, were
incurred by Nagpur City District Congress Committees and
Nagpur Gramin Congress Committee and not by him. Similarly,
in respect of some other items of expenditure, respondent
No.1 took the plea that the expenditure in respect of those
items was incurred by certain organisations, associations,
individuals, friends and well-wishers, without any authority
or consent of respondent No.1 or his election agent and
completely on their own volitions. In the written statement,
the names of some of the organisations and individuals as
well as the associations of persons and the political party
who had incurred the expenditure were furnished by
respondent No.1. It was maintained by respondent No.1 that
he had not incurred any expenditure besides the one
reflected in the return of election expense and had not
committed any corrupt practice. After the amendments were
carried out by the appellants, the returned candidate,
Respondent No.1 filed yet another application Ex.50 seeking
striking out of some other `vague and non-specific’
pleadings but the same was rejected, though the prayer of
Respondent No.1 to amend the written statement made through
application Ex.49 was allowed on 9.1.1992.
From the pleadings of the parties, the following issues
were framed on 21.1.1992:-
(1)Do the petitioners prove that they
were electors in the election held for
the Tenth Lok Sabha from 23, Nagpur
Parliamentary Constituency?
(2) (a) Do the petitioners prove that
a meeting was held in the office of
the Maharashtra State Handloom
Corporation on 17.5.91 during the
Tenth Lok Sabha Election from 23, Nagpur
Parliamentary Constituency?
(b) Do the petitioners further prove
that the said meeting was addressed by
the respondent No.1?
(c) Do the petitioners prove that in
the said meeting, respondent No.1 had
declared that labour charges for
handloom weavers would be increased by
0.35 paise per sq. metre from June 1991?
(d) Do the petitioners prove that the
said declaration of increase in the
labour charges was made by
respondentNo.1 to hold out promise of
gratification for inducing the weavers
numbering 1,50,000 to vote for the
respondent No.1?
(e) Do the petitioners prove that the
said declaration made by the respondent
No.1 amounts to commission of corrupt
practice within the meaning of
Section 123(1)(A) i.e. bribery?
(f) Do the petitioners further prove
that the said declaration made by
respondent No.1 also amounts to
undueinfluence constituting commission
of corrupt practice under Section 123(2)
and further amounts to direct or
indirect interference or attempt to
interfere with the free exercise of
electoral rights of the handloom
weavers who were electors in the said
election?
(3) Do the petitioners prove that the
respondent No.1 has not maintained
correct and proper accounts as is
required to be maintained under Section
77 and has incurred expenses in excess
of the limit prescribed thereunder and
thereby committed corrupt practice
under Section 123(6) of the Act?
(4) Do the petitioners prove that the
respondent No.1 incurred more
expenditure than what is disclosed by
him in the return of expenditure
annexed as Annexure 7 to the
petition, on the following items as
alleged in paras 2, 4 to 2.10 of the
petition, on account of the (i)
payments made to Shri Devi Sharda Mangal
Karyalaya, Nagpur, by way of office
rent?
(ii) payments made to M/S Vishwa
Bharti Typing Institute, Nagpur.
(iii) payments made to M/S Prince
Travels, Nagpur, for hiring
autorickshaws and taxis.
(iv) payments made to M/S Pramod
Automobiles, Nagpur.
(v) payments made to M/S Raj
Automobiles, Nagpur.
(5) (a) Do the petitioners prove that
the respondent No.1 has authorised
and/or incurred expenditure on the
undermentioned items which has not
been disclosed in the return of
expenditure annexed as Annexure 7 to the
petition as alleged in paras mentioned
in the petition described against
each item hereunder?
(b)(i) Do the petitioners prove that
printing cards at Annexure 9 indicate
that the same have been published by
Nagpur City District Congress
Committee, Nagpur, but the expenditure
incurred on printing and distribution
of about 15 lacs voter-cards has been
made by respondent No.1 to the extent of
Rs.2,25,000/-. Do the petitioners
further prove that the respondent No.1
has got printed those cards at
Shakti Offset Works, Nagpur and the
said firm received a total amount of
Rs.2,25,000/- from respondent No.1?
(ii) Do the petitioners prove that
respondent 1 got printed 3,25000
posters of different sizes though
those posters show that they were
issued by President, Nagpur District
Congress Committee and the entire
expenditure of these posters to the
tune of Rs.3,40,250/- was made by
respondent No.1?
(iii) Do the petitioners prove that the
respondent No.1 published his
candidature by large size cut-outs at
places mentioned in Annexure 11
alleged to be prepared by persons whose
names are given in Annexure 10? Do
the petitioners further prove that cost
of these cutouts comes out to
Rs.2,83000/- as given in Annexure 11
and was incurred by respondent No.1 by
paying the same to persons mentioned in
Annexure 10?
(iv) Do the petitioners prove that the
respondent No.1 advertised his
candidature by wall paintings at
different locations at Annexure 12
costing about Rs.88500/-? Do the
petitioners further prove that these
wall paintings work was got executed
by respondent No.1 through painters
and incurred expenditure of it by
payment of charges of painters?
(v) Do the petitioners prove that
about 12,40,830 lettrers such as those
at Annexure 13 $ 14 were got prepared by
the respondent No.1 and were sent to
voters and almost all the voters
received these letters? Do the
petitioners further prove that although
on this letter, it appears that the same
is being sent at the instance of
Sarva Dharma Sambhav Samajik Sanghatna,
trhe expenditure required in fact was
incurred by respondent No.1 to the
extent of Rs.12,40,830/-?
(vi) Do the petitioners prove that
advertisement in newspapers at Annexure
A at Sl. Nos.A2, A5, A7, A8, A10, A14 to
A19, A22 to A27, A28(b), A30(a)
(first part) A30 (b) (second part);
Annexure B at Sl. Nos. B4 to B9, B11 to
B14,B17 and B18, Annexure C at Sl.
Nos. C1, C2, C4, C5, C10,C12, C14 to
C18, C23 $ C24. Annexure D: at Sl. Nos.
D1, D2, D3, D5, D7, D8, D11, D13, and
D15: Annexure E at Sl. Nos. E1, E2, E9,
and E10; Annexure F, At Sl. Nos. F1, F2,
F3, F6, F10, F14 and F16; Annexure G
at Sl. Nos. G1, G2 and G3; Annexure H
at Sl. Nos. H11 to H14, H17, H8, H11
and H17, were published by respondent
No.1 himself in connection with the
election and he himself incurred the
expenditure?
(vii) Do the petitioners prove that the
advertisements appearing in newspapers
at- Annexure A: at S.Nos. A6, A9,
A11 to A13, A20, A21, A27(a), A28,
A30(b) (first part) and A31(b);
Annexure B: At S. Nos. B1, B2, B3,
B10, B15, B16 and B19.
Annexure C: at S. Nos. C3, C6 to C9,
C11, C13, C19 to C22.
Annexure D: at Sl. Nos. D6, D9, D10,
D12, and D14.
Annexure E: At Sl. Nos. E3 to E8;
Annexure F: at S. Nos. F3, F5, F7 to
F9, F11 to F13 & F15;
Annexure G: at S. Nos. G4 to G8; are
published in connection with election
by the respondent No.1 and the
expenditure of which is incurred by
the respondent No.1 himself though in
the said advertisement the names of
publishers are shown as persons other
than the respondent No.1 as given in
Annexures.
(6) (a) Do the petitioners prove that
the respondent No.1 had employed M/S
Yugdharma Consultant and Commercial
Services, Nagpur to publicise his
candidature and incurred expenditure as
per the details shown in Annexures 17
and 18 alleged in para 2.13 of the
petition.
(b) Do the petitioners prove that
besides the above agency, the
respondent No.1 had employed two other
agencies, namely, Orange City
Advertising and Prasad Publicity for
publishing his candidature by
advertisements issued in the nesspapers
and thereby authorised and incurred
expenditure as per details shown in
Annexure 18A, 18B and 18C and
alleged in paras 2.23A to 2.23D of the
petition?
(c) Do the petitioners prove that
election agent of respondent No.1
incurred total expenditure to the tune
of Rs.39500/- on 14.6.91 and
17.6.91 for publication of
advertisement in connection with the
election?
(7) Do the petitioner prove that the
respondent No.47 did not properly
scrutinise the nomination of the
respondent No.3 and he was allowed to
represent himself as such, althoough
a wireless message dated 26.4.91 to
the contrary was received by the
Returning Officer prior to the
acceptance of the nomination papers from
the Chief Electoral Officer of the
Maharashtra ?
(8) Do the petitioners prove that by
allowing the respondent No.3 to
represent himself as the official
candidate of R.P.I.(k), the result of
the election of the respondent No.1 has
been materially affected?
(9) Are the petitioners entitled to
have inspection of the ballot papers on
the basis of the allegations made in
paras 3.1 to 3.11 of the petition and
the allegations made in paras 1 to 13 of
Ex.28?
(10) Do the petitioners prove that the
election of the respondent No.1 to the
Tenth Lok Sabha from 23, Nagpur
Parliamentary Constituency is void
on accunt of the commission of
corrupt practices under Section
123(1A) & Section 123(2) and Section
123(6) of the Act?
(11) Do the petitioners prove that the
respondent No.2 has secured majority of
valid votes to entitle him to be
declared as duly elected from 23,
Nagpur Parliamentary Constituency to
the Tenth Lok Sabha?
(12) Do the petitioners prove that
but for the votes obtained by
respondent No.1 by alleged corrupt
practices, the respondent No.2 would
have obtained majority of valid votes
to entitle him to be declared duly
elected ?
(13) whether respondent No.2 can be
declared as duly elected to the Tenth
Lok Sabha from 23, Nagpur Parliamentary
Constituency, Nagpur ?
(14) What order?
After the evidence of some of the witnesses was
recorded on behalf of the appellants, Election Petitioner
No.1 filed an application, Ex. 701 on 27.5.1992, once again
for amending the election petition in the light of the
evidence recorded. Respondent No.1 filed his objections to
the said application through Ex. 834 on 15.6.1992. The
learned Single Judge, allowed the application permitting the
election petitioner to amend the election petition once
again and being of the view that no new issue was required
to be framed on the basis of the proposed amendments
directed that the Respondent No.1 could apply for recalling
any of the petitioners’ witnesses for further cross-
examination On 17.6.1992, Respondent No.1 filed an
application Ex. 835 for leave to amend the written statement
which was also allowed. We shall advert to the proceedings
concerning various amendments in the latter part of this
judgment.
The learned Single Judge after conclusion of the
evidence and after hearing learned counsel for the parties
held that the appellants (election petitioners) had proved
that respondent No.1 had not maintained a correct and proper
account of the election expenditure as is required to be
maintained under Section 77 of the Act. It was also found
that respondent No.1 had not shown in his return an
expenditure to the extent of Rs.58220/- apart from the
expenditure shown by him in the return of election
expenditure but since the addition of the said amount, to
the amount of expenditure shown by respondent No.1 in his
return of election expenses, did not exceed the permissible
limit of Rs.1,50,000/-, the returned candidate, respondent
No.1, did not commit any corrupt practice as envisaged by
Section 123(6) and dismissed the election petition but
without any order as to costs in favour of Respondent No.1.
Since, in this appeal learned counsel for the
appellants Dr. Ghatate has confined his case to issues 3,
4(V), 5(b) (i) (ii) (v) (vi) (vii); issue No.6 (a) (b) (c);
and partly Issue No.10, we are, as such, relieved of the
necessity of dealing with the other issues. We confirm the
findings of the High Court in respect of those issues of
which correctness has not been disputed before us.
The right to elect and the right to be elected are
statutory rights. These rights do not inhere in a citizen as
such and in order to exercise the right certain formalities
as provided by the Act and the Rules made thereunder are
required to be strictly complied with. The statutory
requirements of election law are to be strictly observed
because the election contest is not an action at law or a
suit in equity but it is a purely statutory proceeding
unknown to the common law. The Act is a complete code in
itself for challenging an election and an election must be
challenged only in the manner provided for by the Act. In
Jyoti Basu Vs. Debi Ghosal (1982 (3) SCR 318), this Court
observed:
“A right to elect, fundamental
though it is to democracy, is,
anomalously enough, neither a
fundamental right nor a Common Law
Right. It is pure and simple, a
statutory right. So is the right to
be elected. So is the right to dispute
an election. Outside of statute, there
is no right to elect, no right to be
elected and no right to dispute an
election. Statutory creations they
are, and therefore, subject to
statutory limitation. An Election
petition is not an action at Common
Law, nor in equity. It is a statutory
proceeding to which neither the Common
Law nor the principles of Equity apply
but only those rules which the
statute makes and applies. It is a
special jurisdiction, and a special
jurisdiction has always to be exercised
in accordance with the statute
creating it. Concepts familiar to
Common Law and Equity must remain
strangers to Election Law unless
statutorily embodied. A Court has no
right to resort to them on
considerations of alleged policy
because policy in such matters as
those, relating to the trial of
election disputes, is what the
statute lays down, In the trial of
election disputes, Court is put in a
straight jacket.”
Though the election of a successful candidate is not to
be interfered with lightly and the verdict of the electorate
upset, this Court has emphasised in more than one case that
one of the essentials of the election law is to safeguard
the purity of the election process and to see that people do
not get elected by flagrant breaches of the law or by
committing corrupt practices. It must be remembered that an
election petition is not a matter in which the only persons
interested are the candidates who fought the election
against each other. The public is also substantially
interested in it and it is so because election is an
essential part of a democratic process. It is equally well
settled by this Court and necessary to bear in mind that a
charge of corrupt practice is in the nature of a quasi
criminal charge, as its consequence is not only to render
the election of the returned candidate void but in some
cases even to impose upon him a disqualification for
contesting even the next election. The evidence led in
support of the corrupt practice must therefore, not only be
cogent and definite but if the election petitioner has to
succeed, he must establish definitely and to the
satisfaction of the court the charge of corrupt practice
which he levels against the returned candidate. The onus
lies heavily on the election petitioner to establish the
charge of corrupt practice and in case of doubt the benefit
goes to the returned candidate. In the case of an election
petition, base on allegations of commission of corrupt
practice, the standard of proof is generally speaking that
of criminal trials, which requires strict proof of the
charge beyond a reasonable doubt and the burden of proof is
on the petitioner and that burden does not shift. (See with
advantage : Nihal Singh Vs. Rao Birendra Singh & Anr (1970
(3) SCC, 239); Om Prabha Jain Vs. Charan Das & Anr. (1975
(Supp) SCR, 107); Daulat Ram Chauhan Vs. Anand Sharma (1984
(2) SCR, 419) and Quamarul Islam Vs. S.K. Kanta And Others
(1994 Supp (3) SCC, 5).
By this proposition, however, we should not be
understood to mean or imply that the returned candidate is
absolved from his liability to bring forth evidence on the
record to rebut the case of the petitioner and to
particularly prove such facts which are within his special
knowledge (Section 106 Evidence Act). Though, the nature of
allegations in cases alleging corrupt practices are quasi-
criminal and the burden is heavy on him who assails an
election but unlike in a criminal trial, where an accused
has the liberty to keep silent, during the trial of an
election petition the returned candidate has to place before
the Court his version and to satisfy the Court that he had
not committed the corrupt practice as alleged in the
petition and wherever necessary by adducing evidence besides
giving his sworn testimony denying the allegations. However,
this stage reaches if and when the election petitioner leads
cogent and reliable evidence to prove the charges levelled
against the returned candidate as, only then, can it be said
that the former has discharged his burden. That necessarily
means, that if the election petitioner fails to adduce such
evidence which may persuade the Court to draw a presumption
in his favour the returned candidate will not be required to
discharge his burden by adducing evidence in rebuttal. While
on this point it will be also pertinent to mention that the
election petitioner has stablish the charge by proof beyond
reasonable doubt and not merely by preponderance of
probabilities as in civil action. In Surendra Singh Vs.
Hardayal Singh [AIR 1985 SC 89], this Court held it as
“very well settled and uniformally
accepted that charges of corrupt
practices are to be equated with
criminal charges and proof thereof
would be not preponderance of
probabilities, as in civil action,
but proof beyond reasonable doubt and
if after balancing the evidence adduced
there still remains little doubt in
proving the charge its benefit must go
to the returned candidate.’ Various
tests have been laid down by the High
Courts and by this Court to determine
the extent of proof required to
establish a corrupt practice. The most
well accepted test however is that
the charge must be established
fully to the satisfaction of the
Court. While insisting upon the standard
of strict proof beyond a reasonable
doubt, the courts are not required to
extend or stretch the doctrine to such
an extreme extent as to make it well
neigh impossible to prove any allegation
of corrupt practice and as was said
in Harcharan Singh Vs. Sajjan Singh
[AIR 1985 SC 236] “such an approach
would defeat and frustrate the very
laudable and sacrosanct object of the
Act in maintaining purity of the
electoral process”.
We are in respectful agreement with the above view.
Some times direct evidence about the commission of corrupt
practice may not be forthcoming or available and in that
case, the charge may be proved by producing circumstantial
evidence but the courts, in such cases insist, that each of
the circumstances must be proved individually and all the
circumstances put together must point unerringly only to the
hypothesis of the commission of the corrupt practice by the
returned candidate and must not be capable of any other
hypothesis consistent with the innocence of the returned
candidate. (See : Quamarul Islam Vs. S.K. Kanta And Others
(supra); Raj Narain Vs. Indira Gandhi (1976 (2) SCR, 347);
Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others (1975
(4) SCC, 769).
The election law insists that to unseat a returned
candidate, the corrupt practice must be specifically
alleged and strictly proved to have been committed by the
returned candidate himself or by his election agent or by
any other person with the consent of the returned candidate
or by his election agent. Suspicion, howsoever, strong
cannot take the place of proof, whether the allegations are
sought to be established by direct evidence or by
circumstantial evidence. Since, pleadings play an important
role in an election petition, the legislature has provided
that the allegations of corrupt practice must be properly
alleged and both the material facts and particulars provided
in the petition itself so as to disclose a complete cause of
action.
Section 83 of the Act provides that the election
petition must contain a concise statement of the material
facts on which the petitioner relies and further that he
must set forth full particulars of the corrupt practice that
he alleges including as full a statement as possible of the
name of the parties alleged to have committed such corrupt
practices and the date and place of the commission of each
of such corrupt practice. This Section has been held to be
mandatory and requires first a concise statement of material
facts and then the full particulars of the alleged corrupt
practice. So as to present a full picture of the cause of
action.
A petition levelling a charge of corrupt practice is
required, by law, to be supported by an affidavit and the
election petitioner is also obliged to disclose his source
of information in respect of the commission of the corrupt
practice. This becomes necessary to bind the election
petitioner to the charge levelled by him and to prevent any
fishing or roving enquiry and to prevent the returned
candidate from being taken by a surprise. (See: Samant N.
Balakrishna Vs. George Fernandez and others (AIR 1969 SC,
1201).
The jurisdiction to try an election petition has been
vested in the High Courts. Election petitions are generally
speaking tried by experienced Judges of the High Courts.
Those learned Judges have the benefit of observing the
witnesses when they give evidence. Therefore, the
appreciation of evidence by the High Court is entitled to
great weight. Generally speaking this Court accepts the
findings of fact arrived at by the High Court after
appreciation of evidence. (See Sheodan Singh Vs Mohan Lal
Gautam (AIR 1969 SC 1024). Being the court of First Appeal,
however, this court has no inhibition in reversing such a
finding, of fact or law, which has been recorded on a
misreading or wrong appreciation of the evidence or the law,
but ordinarily and generally speaking this court does not,
as it ought not to, interfere with the findings of fact
recorded by the learned trial Judge of the High Court,
unless there are compelling reasons to do so. It is in the
light of the above settled principles, that we shall
consider the materials on the record and the findings of the
High Court in respect of which challenge has been made
before us.
As already noticed, the appellants confined their
challenge to the findings in respect of some of the issues
only which relate to the commission of corrupt practice of
incurring or authorising expenditure in excess of the
prescribed limits within the meaning of Section 123(6) of
the Act. It would, therefore, be appropriate to consider the
parameters of the alleged corrupt practice before we examine
the findings and the arguments in respect of the relevant
issues.
Section 77 of the Act provides that ‘every candidate at
an election shall either by himself or by his election agent
keep a separate and correct account of all expenditure in
connection with the election incurred or authorised by him
or by his election agent between the date of publication of
the notification calling the election and the date of
declaration of the result thereof, both days inclusive,
Explanation (1) which was introduced by the Amendment Act of
1974 declares that any expenditure incurred or authorised in
connection with the election of a candidate by a political
party or by any other association or body of persons or by
any individual, (other than the candidate or his election
agent) shall not be deemed to have been, expenditure in
connection with the election incurred or authorised by the
candidate or by his election agent for the purposes of sub-
section (1) of Section 77. Sub-section (2) of Section 77
provides that the account of election expenses shall contain
such particulars as may be prescribed and sub-section (3)
lays down that the total of the said expenditure shall not
exceed such amount as may be prescribed. Vide Section 78 of
the Act the account of election expenses is required to be
lodged with District Election Officer by every candidate at
an election within thirty days from the date of election of
the returned candidate. The maximum amount of election
expenditure which may be incurred by the candidates for the
parliamentary and Assembly Constituencies has been
prescribed in Rule 90 of the Conduct of Election Rules 1961.
In so far as the Parliamentary Elections are concerned, the
said limit is Rs.1,50,000/-. Under Section 123(6) of the
Act, the incurring or authorising of expenditure in
contravention of Section 77 of the Act amounts to commission
of a corrupt practice. However, every contravention of
Section 77 of the Act does not fall within the mischief of
Section 123(6) of the Act. Neither the violation of sub-
section (1) of Section 77 nor the violation of sub-section
(2) of Section 77 amounts to the commission of the corrupt
practice under Section 123(6) of the Act. However, Section
77(3) mandates that the total of the expenditure in
connection with the election shall not exceed the prescribed
limit and therefore the provisions of Section 123(6) of the
Act are related only to Section 77(3) of the Act. If a
candidate incurs or authorises expenditure in excess of the
prescribed limits, he commits the corrupt practice under
Section 123(6) of the Act and his election is liable to be
set aside and he also incurs the disqualification of being
debarred from contesting the next election. From a plain
reading of Section 123(6) and 77 including Explanation I to
the Section 77 of the Act, it is therefore clear that in
order to be a corrupt practice, the excessive expenditure
must be incurred or authorised by the candidate or his
election agent. An expenditure incurred by a third person,
which is not authorised by the candidate or his election
agent is not a corrupt practice. In Magh Raj Patodia Vs R.K.
Birla, [AIR 1971 SC 1295] after referring to a catena of
authorities even before the inclusion of Explanation I to
Section 77 of the Act by the Amendment Act 58 of 1974, it
was emphasised that to prove the corrupt practice of
incurring or authorising expenditure beyond the prescribed
limit, it is not sufficient for the petitioner to merely
prove that the expenditure beyond the prescribed limit had
been incurred in connection with the election of the
returned candidate, but he must go further and prove that
the excess expenditure was authorised or incurred with the
consent of the returned candidate or his election agent. In
Raj Narain Vs. Indira Gandhi (1976 (2) SCR 347) this Court
reaffirmed the above view and taking note of the Amendment
Act 58 of 1974, opined that voluntary expenditure incurred
by friends, relations, or sympathisers of the candidate or
the candidates’ political party are not required to be
included in the candidate’s return of expenses, unless the
expenses were incurred in the circumstances from which it
could be positively inferred that the successful candidate
had undertaken that he would reimburse the party or the
person who incurred the expense. It is not enough to prove
that some advantage accrued to the returned candidate or
even that the expenditure was incurred for the benefit of
the returned candidate or that it was within the knowledge
of the returned candidate and he did not prevent it, to
clothe the returned candidate with the liability of
committing the alleged corrupt practice. Noticing that
during an election, the sponsoring or supporting political
parties as well as friends, sympathisers and well-wishers do
sometimes inour expenditure not only without the consent of
the concerned candidate but even without his knowledge this
court opined that the successful candidate cannot be clothed
with all such expenses to suffer the disqualification.
In P.Nalla Thampy Vs. Union of India [AIR 1958 SC
1133], a Constitution Bench of this Court examined the
validity of Explanation (1) to Section 77 (1) of the Act
(introduced in 1974) and Chandrachud CJ (as he then was)
while upholding its constitutionality, observed:
“In any democratic system of
Government, political parties occupy a
distinct and unique place. They are
looked upon as guardian angles by
their members., though, occasionally,
they fail to discharge the benign
role of guardian, leave alone the
angelic part of it. It is through them
that the generality of the people
attempt to voice or ventilate their
grievances. Considering, also the
power which they wield in the
administration of Governmental
affairs, a special conferment of
benefits on them in the matter of
mobilities governing the election
process cannot be regarded as
unreasonable or arbitrary.”
The Constitution Bench thus emphatically laid down that
unless the expenditure is in fact incurred or authorised by
the candidate or his election agent, he cannot be saddled
with that expenditure. Of course a candidate cannot be
permitted to place his own funds in the power or possession
of a political party, an association, or some other persons
or individuals for being spent on his behalf and then plead
for the protection under Explanation (1) to Section 77 of
the Act. Where the election petitioner successfully
establishes that the funds were provided by the returned
candidate, it would be immaterial as to who actually made
the payments, which ought to have been included in the
return of election expense. It is not “whose hand it is that
spends the money”. The essence of the matter is “whose money
it is” that has been spent. In order that explanation (1) to
Section 77 of the Act may apply, therefore, it must be
proved that the source of the expenditure incurred was not
out of the money of the candidate or his election agent.
Respondent No. 1 lodged the account of his election
expenses with the District Election Officer on 12th July,
1991, supported by 45 vouchers disclosing the total
expenditure of Rs. 72,421.85. The appellants in the election
petition pleaded that Respondent No. 1 had not kept a true
and correct account of the expenditure incurred and/or
authorised by him or by his election agent in relation to
the elections held on 12th June, 1991 and had exceeded the
prescribed limit and thereby committed the corrupt practice
under Section 123(6) of the Act. The appellants alleged that
a huge amount of expenditure incurred in connection with the
election of Respondent No. 1 was falsely shown to have been
incurred by the political party and other associations,
persons or individuals, though in fact the expenditure had
been incurred and/or authorised by Respondent No. 1 himself
or by his election agent. It was asserted that Respondent
No. 1 had placed his own funds in the power and possession
of the political party, organisations and individuals for
being spent in connection with his election in order to
circumvent the law and escape from the consequence of
incurring and authorising expenditure beyond the prescribed
limits. It was alleged that Respondent No. 1 had incurred an
expenditure for the purpose of his election during the
period 25.4.1991 to 16.6.1991 to the tune of Rs.
38,30,375.50, as against the permissible limit of Rs.
1,50,000.00. The statement showing the expenditure allegedly
incurred and authorised by Respondent No. 1 was given in
para 2.24 of the election petition. At the trial, however,
items No. 2, 8, 9 and 14 out of that statement were not
pressed. The High Court, however, in para 200 of the
judgment found that besides the expenditure disclosed in the
return of expenses filed by Respondent No. 1, he had also
incurred the following expenses, which had been suppressed:
Rs. 17,900.00 for the amount paid to Raj Automobiles;
Rs. 1,320.00 for the advertisement in the Tarun Bharat
dated 28.4.1991.
Rs. 7,000.00 for the advertisement in Tarun Bharat –
Election Special.
Rs. 9,100.00 for the advertisement in Lokmat Dt.
12.5.1991 (Sharad Pawar Mitra Mandal)
Rs. 22,900.00 in view of the findings recorded on issue
No. 5(b) (vi) & (vii).
———————
Total : Rs. 58,220.00
———————
and adding the amount of expenditure suppressed i.e. Rs.
58,220.00, to the declared expenses, the High Court found
that the return of expenditure filed by Respondent No. 1
should have been for a sum of Rs. 1,30,641.85. However,
since even that amount fell short of the permissible
expenditure of Rs. 1,50,000.00, it was found that Respondent
No. 1 had not committed the corrupt practice within the
meaning of Section 123 (6) of the Act. Whereas the
appellants have challenged the findings of the High Court on
some of the issues, as already noticed, the returned
candidate, Respondent No. 1, has also filed cross objections
challenging the finding of the High Court in respect of the
addition of Rs. 58,220.00.
ISSUE NO. 4 (V) :
Though issue No. 4 concerns five items, it is only item
No. (v) which has been pressed before us by the learned
counsel for appellants. The findings of the High Court on
items (i) to (iv) of Issue No. 4, which have been decided
against the appellants have not been challenged before us
and therefore, we confirm the findings of the High Court
regarding those items. So far as Item No. (v) is concerned,
it relates to the payments made by respondent No. 1 to M/S
Raj Automobiles for purchase of fuel etc.
According to the appellants, Respondent No. 1 in his
return of expenditure submitted to the District Election
Officer had, under Items 31 to 34, shown the expenditure
incurred by him on account of purchases of petrol etc. from
M/s. Raj Automobiles, Civil Lines, Nagpur under bills No.
401 to 404 for the period 1.5.1991 to 12.6.1991 but had
failed to include the cost of 1180 litres of petrol also
allegedly purchased by the returned candidate from Raj
Automobiles over and above the quantity of petrol shown to
have been purchased by Respondent No. 1 under bill Nos. 401,
402 and 403, as disclosed in the return of expenses filed by
him for the period 1.5.1991 to 12.6.1991. The appellants
specifically pleaded that petrol which had been shown to
have been purchased by respondent No. 1 was for three
vehicles : (i) MH-31-G-1722; (ii) MH-02-2200; and (iii) 7069
but the cost of purchase of 1180 litres of petrol had been
suppressed. In his written statement, Respondent No. 1,
admitted that under items 31 to 34 in his return of
expenditure, he had shown the expenditure incurred by him on
account of the purchase of petrol from M/s. Raj Automobiles
during 1.5.1991 to 12.6.1991 but denied that Raj
Automobiles, Civil Lines, Nagpur had sold 1180 litres of
petrol over and above the quantity of petrol shown to have
been purchased by him under bill No. 401, 402, 403 filed
alongwith the statement of account. It was pleaded that the
allegation was vague and based on speculation and that no
particulars had been given of the basis on which it was
alleged that he had purchased 1180 litres of petrol at the
cost of Rs.17900/- in addition to what had been disclosed by
him.
The appellants examined PW 36, Shankar Rao Gadge, who
was working as an Accountant with Raj Automobiles at the
relevant time. He deposed that a credit account had been
started for Respondent No. 1 at the instance of Mrs. Shalini
Bai Meghe (wife of respondent No. 1 and proprietor of Raj
Automobiles) and credit slip books had been issued to
Respondent No. 1. That whenever petrol or oil was purchased
by or for respondent No.1, a copy of the credit slip used to
be given to M/s. Raj Automobiles and its counterfoil was
retained by the customer. The original credit slips were
lateron returned to the first respondent alongwith the bill.
The witness after referring to the record deposed that fuel
had been supplied to respondent No. 1 for car Nos. MH-31-
1722, MH-02-2200, MK-1/1022 besides vehicle No. 1422 and
7069 during 1.5.91 to 16.6.91. He also proved a cash memo
dated 16.6.1991 for bill No. 2503 (Ex. 681) for sale of 10
liters of petrol sold to respondent No.1. The witness
admitted that receipt No. 843 dated 12.7.1991 (Ex. 680) was
in respect of bill Nos. 401 to 405 for the consolidated
amount of Rs. 12,152.40 and went on to say that the payments
had been made by a cheque by respondent No.1. According to
the witness, except the petrol which was sold under the cash
memo Ex.680 all other petrol and oil sold to Datta Meghe was
worth Rs. 12152.40 p. All these transactions are carried
over and entered in their accounts. “We did not sell either
oil or petrol besides these to Datta Meghe” was the
categorical statement made by PW36 Gadge.
The appellants also examined Shri Prakash Baidya PW33.
This witness earlier used to be a partner in M/S Raj
Automobiles till 1991 where after he ceased to have any
concern with Raj Automobiles. During the parliamentary
elections, he was the General Secretary of the East Nagpur
Assembly Constituency for BJP, the party to which both the
appellants as well as respondent No. 2 belonged and was in
charge of that area. He deposed that it is necessary to put
one litre of oil if the consumption of petrol is 100 to 125
liters and that in one litre of oil, the run of the vehicle
would be about 1000 kms. on an average consumption at the
rate of 10 kms per litre of petrol. During the cross-
examination, he admitted that he had deposed about the ratio
of consumption of petrol and oil from his experience and not
from any book and also conceded that if an engine is old it
would consume more oil as well as more petrol and that the
oil-petrol ratio varies according to the horse power of the
engine and its model and that if the chamber of the vehicle
leaks, the consumption of oil would be more because of
leakage and not on account of the consumption. He admitted
that he is not an automobile engineer.
Respondent No. 1, the returned candidate in his
statement admitted that his wife owns Raj Automobiles and
that petrol and oil were bought by him on credit from Raj
Automobiles, except for one cash transaction on 16.6.1992
for Rs. 147.40 (Ex. 681). He went on to add that he did not
buy petrol from any other petrol station except Raj
Automobiles during the election period and that the credit
slips which used to be issued to Raj Automobiles were
received back by him with the bill from Raj Automobiles and
after the bills were paid, the credit slips were destroyed.
During his cross-examination, he stated that he had three
diesel and four petrol cars with him for his election and
that he had hired some motor cars and auto-rickshaw on 19,
20 and 21 May and 8, 9, 10 June, 1991 through Prince
Travels. He disclosed the names of the parties from whom he
had procured those vehicles and asserted that besides Car No
7069 which he had procured from Nagar Yuvak Sanstha, he used
the cars of the workers who used to come and see him.
According to him vehicle No.7069 is NE and the model was 3/4
years old.
For coming to the conclusion that the returned candidate had
purchased more fuel than the one shown by him in his return
of expenditure,the High Court relied upon the petrol-oil
ratio as deposed to by pw Baidya. It was found that the
amount of oil admittedly purchased by the returned candidate
as per bill No.404 when considered in the light of the total
fuel purchased would show that, much more fuel would have
been purchased to consume the quantity of oil purchased as
per bill No.404. It was found by the High Court on the basis
of the calculations made that the returned candidate had
suppressed an expenditure to the tune of Rs.18,277.60 but
since the appenllants had asserted that there had been
suppression of the use of 1180 litres of petrol worth
Rs.17900/-only,therefore only that much of expenditure could
be added to the disclosed expenses of the returned
candidate. The High Court while entering into the
calculations did not base itself on the oil-petrol ratio but
multiplied the consumption of petrol for one of the cars
(MH-31G-1727), which was admittedly used by respondent No.1
by 3 and drew an inference that for the other 3 cars also.
the same amount of petrol would have been consumed and thus
found that the returned candidate would have purchased more
petrol worth atleast Rs.18277.60.
In the election petition a specific allegation had been
made to the effect that the returned candidate had purchased
1180 litres of petrol in addition to what had been disclosed
by him from Raj Automobiles. In the verification of the
election petition,the appellants had disclosed the source of
information with regard to the contents of para 2.10 as
based on the information received from Shri Baidya PW. In
the affidavit filed in support of the allegations of the
said corrupt practice, the source of information was also
disclosed to be Shri Baidya PW. However, PW53, Shri Prakash
Baidya, in his deposition in court did not state that he had
conveyed any information to the election petitioners about
the alleged excess purchase of 1180 litres of petrol by
Respondent No.1 from M/s. Raj Automobiles apart from the
quantity of fuel purchased by him as disclosed in the return
of election expenditure. In his statement, he only
speculated about the excess purchase of petrol on the basis
of oil-petrol ratio, based on his experience even though
admittedly he is not an expert,not even an automobile
engineer. In the election petition nothing was said about
the petrol-oil ratio as the basis from which the appellants
had inferred that 1180 litres of petrol had been purchased
by the returned candidate in addition to the quantity of
fuel shown to have been purchased by him from Raj
Automobiles. Except for giving same figure of ‘1180’ litres
of petrol alleged to have been purchased by respondent No.1,
the appellants did not give any other facts or particulars
in the election petition for alleging purchase of 1180
litres of excess petrol and left the matter totally vague.
Even in his own statement,appellant No.1, did not disclose
the basis for arriving at the figure of ‘1180’. An attempt
was apparently made to get sustenance from the testimony of
Baidya PW53, admittedly a partyman of the appellants and
respondent No.2, to support the allegations made in the
petition on the basis of oil-petrol ratio. Even in that
behalf we find that no evidence was led by the appellants to
show as to what were the models of the vehicles which were
used by the returned candidate and the extent to which all
those vehicles had been used during the elections. The
returned candidate, R1W1, was not even asked a single
question regarding the extent of the use of the different
vehicles to determine the mileage- run in respect of each
one of those vehicles. No explanation was even sought from
him regarding the oil-petrol ratio or as to why so much of
oil had been purchased for so little fuel. In this
connection,it is also relevant to note that PW33 Shri Vijay
Rathi, the Accountant of Raj Automobiles, had been summoned
by the appellants alongwith the record presumably to prove
the excess sale of 1180 litres of petrol, apart from the
fuel shown in bill Nos. 401, 402, 403 and 404 but the record
was never got exhibited and there is , thus, force in the
submission of Mr Manohar, learned counsel for the returned
candidate that a presumption should be drawn against the
appellants to the effect that the summoned record being
inconvenient was not got exhibited by the appellants. The
observation of the High Court, under the circumstances, to
the effect that Raj Automobiles had suppressed the record
does not appear to be well founded as the summoned record
had been brought by PW33 to the court but the party chose
not to get the same exhibited and no fault can be found with
Raj Automobiles
The High Court, as already noticed, found the
suppression of Rs.18,277.60 on the calculation based on the
quantity of petrol purchased for vehicle No.
MH-31-G-1722. The total petrol purchased for that vehicle
was shown as 470 litres and the amount of oil purchased for
that was shown to be 22 litres.
Obviously, the ratio of oil-petrol as deposed to by Shri
Baidya PW53, does not appear to have any relation to the
petrol-oil ratio for the said vehicle. On the basis of the
ratio as deposed to by PW53, more than 50 litres of oil
should have been consumed for this vehicle. The High Court,
as already observed, calculated the cost of 470 litres of
petrol as Rs.6927.80 and than multiplied it by 3 and arrived
at the figure of Rs.20,783.40 and deducting an amount of
Rs.2505.80, which had been shown to be cost of the petrol
used for the two other vehicles used by the returned
candidate, determined the suppression at Rs.18277.60, but
since the election petitioners had alleged suppression of
the use of 1180 litres of petrol worth Rs.17,900/- only, the
High Court fastened the liability on the first respondent
not for the amount of Rs.18277.60 but Rs.17900/- only
In our opinion, the approach of the High Court was
wrong and it fell into a complete error in making these
calculations which are not even based on guess work but are
totally conjectural in nature. The type of exercise done by
the High Court had neither any factual foundation in the
election petition nor even in the evidence. The High Court
made out a new case neither the one pleaded by the election
petitioners nor the one pleaded by the returned candidate.
It was not a permissible course for the High Court to adopt
while dealing with the allegation of commission of a corrupt
practice in an election petition. Since, no evidence was led
by the election petitioner about the alleged purchase of
excess of 1180 litres of petrol, the High Court ought to
have found the issue against the appellants. The finding of
the High Court is, not on any evidence. Except PW1 who made
a vague statement to the effect that he had seen the
vehicles pleaded in the election petition, on the roads
throughout during the election, without indicating when,
where and which vehicle, on other evidence was produced to
show the extent to which the other vehicles in question had
been used during the election by Respondent No.1 or his
election agent or by any other person with the consent of
respondent No.1 or his election agent. The election
petitioner could have examined withnesses from different
segments of the constituency to depose, if they had seen the
returned candidate or his election agent in that area in any
particular vehicle and then number of occasions when the
returned candidate had been so seen in different localities
in the same or different vehicles to show the extent of run
of those vehicles by bringing out the total distance likely
to have been covered. No such evidence was led, though the
production of such evidence was not an utter impossibility.
That vehicle No.1722 (which was made the basis for
calculation of total run by the High Court) was more
extensively used, than the other vehicles is a reasonble
possibility which cannot be ignored. It was incumbent upon
the appellants to prove the sale of 1180 litres of petrol in
favour of Respondent No.1 by Raj Automobiles as alleged by
them in the election petition, by leading cogent and
satisfactory evidence and they miserably failed to prove the
said charge, let alone beyond a reasonable doubt. Even the
mathematical calculation made by the High Court also appears
to be incorect but we need not detain ourselves to point out
the same because of the infirmities pointed out by us in the
approach of the High Court. The finding of the High Court on
Issue No.4 (V), therefore, cannot be sustained and we set
aside that finding and hold that the appellants have failed
to prove Issue No.4 (V) and consequently the addition of
Rs.17,900.00 in the return of expenditure of respondent No.1
was not justified and the said amount shall have to be
excluded. The cross-objection to that extent succeeds and is
allowed.
ISSUE NO.5 (b) (i) & (ii)
The allegations of the election petitioners which led
to the framing of Issue No.5 (b) (i) and (ii) are contained
in paragraphs 2.11 to 2.14 of the election petition and
concern the issuance of voter cards to 1243382 voters in the
constituency by the returned candidate after getting the
same printed at a cost of Rs.2,25,000/- from Shakti Offset
Works, appealing to the electorate to vote for the returned
candidate. Besides, Respondent No.1 is also alleged to have
got printed posters of different sizes, namely, one lakh
posters of 20″x30″; one lakh fifty thousand posters of
18″x23″ and seventy five thousand posters of 15″x20″
propogating his candidature and these posters of different
sizes, on an average of about 300 posters were exhibited at
each of the 1250 polling booths in the constituency. It was
alleged that in all 3,25,000 posters were got printed by
the returned candidate between 25.4.91 and 21.5.91 after
incurring an expense of Rs.3,40,250.00 for the printing of
the said posters and the first respondent did not include in
the return of his election expenses either the amount of
Rs.2,25,000/- being the cost of the voters cards or
Rs.3,40,250/- being the cost of the posters. In the written
statement, while admitting that the appeal made in the voter
cards was to cast votes in favour of the first respondent
and that the posters were also published for the furtherance
of the prospects of the election of the first respondent,
the returned candidate denied to have incurred any
expenditure at all on printing and distribution of either
the voter cards or the posters. According to the first
respondent, he learnt about the printing of about four lakh
voter cards by the Nagpur City District Congress Committee
at its own expense and also came to know that some posters
had been got printed and published by Nagpur City District
Congress Committee while some more posters had been supplied
by Congress (I) through its sub-organisations,at various
levels, as per the past practice and as per the practice
being followed by the other parties also for distribution
and that he had neither authorised nor incurred any expense
for the said cards and posters and that the same had been
published and distributed without his knowledge let alone
his consent.
The appellant Bapat PW1 in his statement deposed that
voter cards had been issued about eight days prior to the
poll to every voter as mentioned in the voters list Ex.74
and according to his estimation the cost of printing of the
voter cards would be Rs.2,25,000/-. In the course of his
statement he,
however, admitted that in the case of respondent No.2, Shri
B. L. Purohit voter cards had also been issued to the voters
but went on to say that the same had been got printed by the
BJP at its own expense and were distributed by the workers
of the B.J.P. without any expense being incurred or borne by
respondent No.2 himself. With regard to the publication of
the posters, he deposed that the posters had been used by
the returned candidate extensively. Specimen of some of the
posters were produced as Ex.75 to Ex.78. PW1, asserted that
the expenditure for the printing of voter cards and the
posters in the case of the returned candidate was borne by
the first respondent himself and not by anyone else.
The appellants in support of their case examined PW41
Suresh Deotale President of Nagpur Gramin Congress, PW42
Baliram Dakhne Cashier, PW43 Baburao Zade, Secretary of the
Gramin Congress and PW46 Marotrao Kumbhalkar, Treasurer of
the Nagpur District Congress Committee. The evidence of all
these withnesses however reveals that the Congress Committee
had incurred the expenditure for publication of
advertisements, voters cards, posters etc. In connection
with the election of the returned candidate. These
witnesses, however, admitted that the Congress party did not
maintain any account in respect of election expenses either
for the local bodies, Legislative Assemblies, or Parliament.
That the work regarding the election propaganda and
incurring of election expenses used to be entrusted to one
or the other of the office bearers by the Party. In the case
of the election of Datta Meghe, the witnesses deposed that
the job had been entrusted to PW43 Baburao Zade. These
witnesses further deposed that money for undertaking
election expenses was collected by the Congress Party in the
form of collection coupons. That a part of the election
coupons were supplied by the All India Congress Committee in
the demonination of Rs.2/- and Rs.5/- while the rest were
printed at the local levels. No account was, however,
maintained of those coupons. The posters were also supplied
by All India Congress Committee and the Provincial Congress
Committee. PW43, Baburao Zade stated that Shakti Offset was
one of the printers who had undertaken the printing job and
that the orders for printing work had been placed by him on
Shakti Offset through Shri Parshonikar. He admitted that he
was a sitting MLA at the time of the election. He however
was not aware if Parshonikar was the Secretary of Nagpur
Shahr Zila Congress Committee. From The testimony of PW41
President of Nagpur Gramin Congress it emerges that the
manner of collection of funds for election purposes was
through sale of coupons. The witness denied that not
maintaining of any accounts of those coupons, was a practice
devised only for the present election but asserted that it
was a practice which used to be followed in all earlier
elections also. He went on to add and that when Shri
Purohit, respondent No.2, was a Congress Candidate in the
Parliamentary elections of 1984 and 1989, the expense for
his election propaganda had been incurred by the Congress
Committee also by raising funds through sale of coupons and
that no account had been kept either of the coupons or even
of the total expense incurred during those elections. He was
emphatic that the Congress Committee did not maintain any
account in respect of the expenditure incurred by the party
in connection with the elections to the local bodies,
Legislative Assembly or Parliamentary elections. The
evidence of PW42 is almost on the same lines as that of PW41
and PW43 in all material particulars. This witness further
deposed that he had learnt from PW43 Baburao Zade that an
amount of Rs. 40000/- had been paid to Parshionikar towards
the election expenses and that some posters had been issued
by the All India Congress Committee also. The pass book of
the Gramin Congress which was produced by the witness,
revealed that after the withdrawal of an amount of Rs.250/-
on 26.9.90, the next withdrawal was only on 10.4.92 of
Rs.3500/- and that no other amount had either been deposited
or withdrawn by the party from the Bank. The evidence of the
witnesses to the effect that funds for election expenses
were collected by sale of coupons and donations and no
account was maintained of the receipt and expenses, thus,
receives corroboration from the Bank Pass Book of the Gramin
Congress. The testimony of PW43 which supports the testimony
of PW41 reveals that about 30000 to 40000 voter cards
besides some handbills worth Rs.2000/- to 3000/- had been
got printed by the Party through Shakti Offset Works.
Explaining the reason for not maintaining any account of
receipt and expense, the witnesses stated that since persons
who bought the coupons or gave donations were mostly
businessmen, who generally paid the amount by cash, and did
not want any record of the payment made by them to be kept,
the accounts were not maintained. PW44 Vishnu Dutt Misra,
Vice-President of the Nagpur Nagar Zila congress and PW45
Awari, President of Nagpur Nagar Congress Comittee deposed
on the same lines as PW41 to PW43. PW46 Marotrao Kumbhalkar,
the Treasurer of the Party, further stated that the
responsibility for the election propaganda of the returned
candidate in the present case had been placed on Shri
Parshonikar, who was made the Secretary Incharge of the
elections of Respondent No.1 by the Party. According to
PW46. an amount of about Rs.14 lakhs had been collected
through donations and sale of coupons, out of which Nagar
Congress Committee had also got coupons worth about Rs.7
lakhs printed and the remaining coupons worth Rs.7 lakhs had
been received from the All India Congress Committee. The job
for giving advertisement to the newspapers etc. on behalf of
various Congress Committees and organisations had been
entrusted to Shri Parshionikar. He admitted that even in
1989 when respondent No.2, Banwarilal Purohit, had contested
the election as a Congress candidate, an amount of about
Rs.12 lakhs to Rs.14 lakhs had been collected through sale
of coupons and donations and the same had been spent by the
Party for the furtherance of the election of Respondent
No.2, Banwarilal Purohit, without maintaining any account of
receipt and expense.
Ashok Thakre PW54, the Manager of Shakti Offset Works
deposed that none of the candidates had approached him
personally for placing orders for printing work. He
disclosed the names of the persons who had aproached him on
behalf of different candidates to place orders in connection
with the printing of posters of different sizes, as
reflected in Ex.75 to Ex.78 and asserted that orders had
been placed for the same by Shri Parshonikar and the posters
had been got printed by Gramin Congress for which purpose
PW43 had also approached him. He went on to state that Shri
Parshionikar had approached him on behalf of Nagar Zila
Shehar Congress and that the printing work was got done by
Shri Pande on behalf of the Yuvak Congress. PW54 gave
details of the various posters printed by him and by
reference to ledger Ex.738/9, stated that an amount of
Rs.50000/- has been shown to have been credited to the
account by the President Nagar Shehr Congress Committee on
13.5.91 under five different receipts, Ex.744 to 748, for
Rs.10000/- each, totally Rs.50,000/- He then deposed that a
further sum of Rs.50000/- had been received by the press
from Nagpur Zila Congress Committee, Gramin-Vibhag and that
a sum of Rs.50000/- had also been received from Zila
Congress Committee (Yuvak) on 6.6.91 and 23.10.91. An amount
of Rs.10000/- was received from Nagpur Zila Congress
Committee (I) Gramin also. That all these amounts were spent
for the printing work entrusted by various Congress
Committees and organisation of the propaganda material for
the election of the returned candidate. The returned
candidate in his deposition denied to have authorised or
incurred any expense as alleged by the election petitioner
in connection aither with the printing of voter cards or the
posters etc. and maintained that he had not even taken the
responsibility to reimburse the expenditure on behalf of any
one and that no expenditure in that behalf had been incurred
by any one with his consent either.
After considering the evidence in its totality in the
light of the pleadings in the election petition, we find
that the election petitioner has not adduced any cogent,
satisfactory or reliable evidence to establish that the
expenditure of Rs.2,25,000/- and Rs.3,40,250/- as alleged in
the petition had been incurred and/or authorised by
respondent No.1 for the printing of voter cards and the
posters. On the other hand it emerges, that the entire
expenditure on that behalf was undertaken and borne by the
Congress Party and others and that it was so done as per the
past practice also.
The argument of Dr. Ghatate however is that Thakre
PW54, the Manager of Shakti Offset Works who denied the
receipt of any amount from the returned candidate could not
be relied upon because there has been some tampering with
the record, including the ledger, and therefore it should be
inferred that he was helping the returned candidate. It was
submitted by the learned counsel that even though PW54 was
produced and examined by the election petitioner, they were
not bound by his entire evidence and that once it was
established that the record had been tampered with, the onus
would shift to the returned candidate to show that he was
not responsible for the tampering or that the tampering had
not been done at his instance. This argument is fallacious
and does not impress us at all. There is no material brought
on the record to even suggest let alone establish that the
tampering had been done in the record at the instance of the
returned candidate. No sound foundation had been laid either
in the petition or in the evidence which may justify this
court to raise the inference, which the learned counsel
invites us to draw. A similar argument had been raised on
behalf of the appellants in the trial court also and the
learned trial Judge found that the allegation of the
tampering of the record by Shakti Offset Works at the
instance of the returned candidate had not at all been
proved, much less satisfactorily. The trial court rightly
found that the practice followed by all political parties
for printing of voter cards and posters had always been much
similar and the amounts for the said purpose used to be
spent by the political parties by sale of coupons and by
receiving donations and even when respondent No.2 had
contested the election as a Congress candidate the same
practice had been followed. The election petitioners have
failed to establish any link between the alleged expenses
and the returned candidate for printing and distribution of
voters cards and posters and have not brought any
circumstance on the record to show that the returned
candidate had any hand in the tampering of record or even
that the tampering of the record was done for the benefit of
the returned candidate only.
We wish, however, to point out that though the practice
followed by political parties in not maintaining accounts of
receipts of the sale of coupons and donations as well as the
expenditure incurred in connection with the election of its
candidate appears to be a reality but it certainly is not a
good practice. It leaves a lot of scope for soiling the
purity of election by money influence. Even if the traders
and businessmen do not desire their names to be publicised
in view the explanation of the witnesses, nothing prevents
the political party and particularly a National party from
maintaining its own accounts to show total receipts and
expenditure incurred, so that there could be some
accountability. The practice being followed as per the
evidence introduces the possiblity of receipts of money from
the candidate himself or his election agent for being spent
for furtherance of his election, without getting directly
exposed, thereby defeating the real intention behind
Explanation I to Section 77 of the Act. It is, therefore,
appropriate for the Legislature or the Election Commission
to intervene and prescribe by Rules the requirements of
maintaining true and correct account of the receipt and
expenditure by the political parties by disclosing the
sources of receipts as well. Unless, this is done, the
possibility of purity of elections being soiled by money
influence cannot really be ruled out. The political parties
must disclose as to how much amount was collected by it and
from whom and the manner in which it was spent so that the
court is in a position to determine “whose money was
actually spent” through the hands of the Party. It is
equally necessary for an election petitioner to produce
better type of evidence to satisfy the court as to “whose
money it was” that was being spent through the party. Vague
allegations and discrepent evidence may only create a doubt
but then the charge of corrupt practice cannot be held to be
proved on mere lurking suspicion or doubts.
Howsoever, undesirable and objectionable the practice
might be, the fact remains that the evidence led by the
election petitioners in this case does not establish the
charge levelled by them at all. In the absence of any
cogent, reliable, satisfactory and trustworthy evidence to
show that the respondent No.1 or his election agent had
incurred or authorised the expenditure as alleged in the
petition, the trial court rightly found the issue against
the election petitioner and we find no reason to take a
different view. We therefore, confirm the findings of the
High Court on the said issue.
ISSUE 5 (B) (V)
In para 2.20 of the election petition it has been
pleaded that respondent No.1 had sent personal inland
letters to all the voters residing within the constituency
and the appellants had calculated the price of each such
letter as Rupee One, inclusive of printing and postage. Two
of such letters, Annexures 13 and 14, containing the
residential address of respondent No.1 allegedly received by
Vijay Shinde and Vinayak Gode PW49 were annexed with the
election petition. It was alleged that respondent No.1 had
made an appeal through the inland letters to the voters to
cast their vote in his favour on 12.6.91. It was further
stated that though the letters were shown to have been sent
by Sarva Dharma Samajik Sangathan, the expenditure for the
same was in fact authorised and incurred by respondent No.1
himself. It was pleaded that there were 1240830 voters in
the constituency and, therefore, respondent No.1 was alleged
to have incurred an expenditure of Rs.12,40,830/- on the
inland letters and he had not shown the expenditure incurred
by him in that behalf in the return of expenditure filed by
him and if the said amount is included, it would show that
the returned candidate had incurred and authorised
expenditure beyond the prescribed limits and thus committed
the corrupt practice under Section 123 (6) of the Act. In
the written statement, the returned candidate denied the
allegations and styled the same as imaginary and baseless.
He denied to have sent any letter to Vijay Shinde and
Vinayak Gode, Annexure 13 and 14 respectively or to anyone
else in the constituency. The allegation that he had
incurred an expenditure of Rs.12,40,830/- was vehemently
denied. Respondent No.1 stated that according to the
information received by him after the election, the Sarva
Dharma Samajik Sangathan had got printed about two thousand
letters similar to Annexure 13 and 14 and issued the same
without his approval or consent and the entire expenditure
must have been borne by the Sangathan itself since it was
neither authorised nor incurred by him or by his election
agent. It was stated that the allegation in the paragraph
were vague and general in nature and lacked essential
ingredients and particulars and the assention that all the
voters in the constituency had received the letters from
respondent No.1 was based on speculation and conjectures and
not on facts.
In the original written statement filed by the returned
candidate in reply to para 2.20, it appears that while he
denied the “sending” of the inland letters identical to
Annexures 13 and 14, there was no specific denial made by
him regarding his signatures allegedly appearing on those
letters. In the amended written statement, a specific denial
was also incorporated stating that the respondent No.1 had
not signed those letters and that inadvertantly it had been
omitted to be mentioned in the earlier written statement,
while denying the sending of the inland letters. Thus, in
the amended written statement there was denial both, about
the signatures as well as the sending of the letters by the
first respondent to the voters. Respondent No.1 also denied
to have incurred or authorised any expenditure in connection
with the printing and postage of those inland letters.
Appellant No.1 Bapat, appearing as PW1 in his statement
asserted that each one of the voters in the constituency had
received such an inland letter from respondent No. 1 but
admitted during his cross examination that he had no idea
whether the letters had actually been signed by the first
respondent or by someone else. The petitioner also examined
Shri JD Kotwal PW56 as the Hand-writing Expert to identify
the signatures of Respondent No. 1 on Annexures 13 and 14
(Ex.79 and 80), and to compare the same with the admitted
signatures of the first respondent. The Hand-writing Expert
PW56, however, did not support the case of the election
petitioner and deposed that no opinion could be expressed
regarding the authorship or otherwise of the disputed
signatures on Ex.79 and 80 (Annexure 13 and 14). With the
denial by respondent No.1 that he had neither signed those
letters nor sent any such letters to the electorate and the
evidence of the Hand-writing Expert PW56, the appellants
must be held to have failed to prove that the letters like
Annexures 13 and 14 were signed by respondent No.1 or that
he was responsible for sending those letters to the
electorate. The argument of Dr. Ghatate that even if the
letters had not been signed by respondent No.1, but since
the same had been sent as an appeal to vote for him, it
should be presumed that he was the author and sender of the
letters, does not appeal to us. The court can only decide
the case on the basis of the evidence led and not on what
ought to have been led. In the instant case, the election
petitioners have failed to examine any witness to show that
the letters (like Annexure 13 and 14) had in fact been sent
by respondent No.1 to the electorate. The letters were, on
the face of it, sent by the Sangathan. No evidence has been
led to show that the money spent by the Sangathan had been
provided by respondent No.1 either or that the Sangathan was
a non-existant body. The allegation has remained totally
unsubstantiated. It was certainly not obligatory for the
returned candidate under the circumstances, to have produced
any witness from the Sangathan to prove that Sangathan had
sent the letters on its own or that it had also incurred the
expenditure itself. Since, the case of the returned
candidate categorically had been that those letters were
neither signed by him nor sent by him nor did he incur any
expenditure in respect thereof, it was for the election
petitioners to establish the charge by leading reliable and
satisfactory evidence. The evidence of appellant Bapat PW1,
to the effect that he had made inquiry from the Charity
Commissioner and learnt that there was no such Sangathan
registered with the Charity Commissioner, to urge that the
Sangathan was a `fake’ organisation and was not a genuine
society, ignores the fact that the registration of such a
Sangathan is not necessarily to be done only with the
Charity Commissioners. The petitioner admittedly made no
inquiry from any other quarter to find out whether or not
the Sangathan was in fact in existence or not. The intrinsic
evidence of the document shows that the letters were sent by
the Sangathan and keeping in view the evidence of the
handwriting expert, it appears that the letters bore the
name of `Datta Meghe’ and not his signatures. The petitioner
could have produced some witness from the Sangathan to show
that no such letters had been sent by the Sangathan. The
petitioners did not even summon a witness from the Sangathan
alongwith the record. Had it been done and if the summons
could not be served because of the alleged non-existence of
such a Sangathan, it may have been possible for the
petitioner to argue that the Sangathan was a fake
organisation and that an inference may be drawn that the
letters had been sent by respondent No.1 at his expense but
no such inference can be drawn in favour of the appellants
in view of the facts and circumstances existing on the
record. Respondent No.1 had disclosed the name of Shri
Bhasme as one of the officers of the Sangathan in his
testimony and the appellants should have sought permission
of the Court to summon Shri Bhasme at that stage atleast but
they did not do so for reasons best known to them. We are
unable to agree with Dr. Ghatate, that the evidence should
have been led by the returned candidate to prove that
actually the letters had been sent by the Sangathan after
incurring the expenses itself and the petitioners should not
be expected to lead such evidence. The onus to prove the
charge was on the election petitioners and in the absence of
any satisfactory evidence adduced to discharge that onus,
the returned candidate was under no obligation to prove that
he was not responsible for committing the corrupt practice.
Again, it is not the case of the appellants that the
expenditure had been incurred by the Sangathan, with the
consent of the returned candidate or his election agent nor
is it their case that the returned candidate had undertaken
to reimburse the expenditure incurred by the Sangathan. The
trial court, in our opinion, after properly considering and
appreciating the evidence rightly found that there was no
evidence on the record to support the plea that the first
respondent had spent the amount as alleged on the postage
and printing of the inland letters of the type, Annexure 13
and 14 (Ex.79 and 80) or that he had sent those letters to
every voter in the constitutency. From the material on the
record, there is no scope even to raise a strong suspicion
against the first respondent in that behalf. The appellants
appear to be labouring under the wrong impression that once
they make an allegation against the returned candidate,
their responsibility is over and it is for the returned
candidate to prove his innocence. It is against the
essential principles of election law. At the risk of
repetition it may be stated that where allegations of
corrupt practice are alleged, it is for the election
petitioners to prove the charge against the returned
candidate beyond a reasonable doubt to the satisfaction of
the court. The obligation of the returned candidate to rebut
the allegations by leading evidence arises only after the
election petitioners have led dependable evidence in support
of the charge of corrupt practice and not till then. The
appellants have in the present case failed to do so in
respect of the charge relating to issue No.5(b)(v) and
accordingly we agree with the High Court that the returned
candidate was not required to refute the charge by leading
evidence on this behalf. The issue is accordingly decided
against the appellants and we confirm the finding of the
High Court.
Issue No. 5(b) (vi) & (vii)
These two issues relate to the publication of certain
advertisements in various newspapers such as Nagpur Times,
Nagpur Patrika, Nav Bharat Times, Tarun Bharat among others.
There is some connection between these issues and issues
6(a), (b) and (c), which we shall deal with separately.
According to the election petitioners, the returned
candidate had opened an account with Nav Bharat Times,
Nagpur Times and Nagpur Patrika and had incurred an expense
of Rs. 4,89,424.00 for the publication of various
advertisements in connection with his election in those
newspapers but the said amount was not included in the
return of expenditure and that had the same been included,
the returned candidate would be shown to have incurred
expenses beyond the permissible limits. The break up of the
amount (Rs. 4,89,424.00) allegedly incurred or authorised by
the returned candidate as given by the appellants is as
follows:
(1) Nav Bharat Times = Rs. 2,61,274.00
(2) Nagpur Times & Nagpur
Patrika = Rs. 2,28,150.00
It was alleged in the election petition that the returned
candidate had an account, Code No. M-0042 (Ex. 441), with
the Newspaper Nav Bharat Times and though it was shown that
the expenses for the advertisements published in the
newspapers were borne by Nagpur District Congress Committee,
Gramin Congress Committee and some other organisations and
individuals, but in fact the payments had been made out of
the amounts provided for by Respondent No. 1 to the said
Committees, organisations and individuals. In the written
statement Respondent No. 1 denied that he had incurred or
authorised any expenditure himself or through his election
agent in respect of the various advertisements appearing in
Nav Bharat Times, Nagpur Times and Nagpur Patrika as alleged
in the election petition. It was also denied that the
advertisements had been published at the instance of or with
the knowledge of Respondent No. 1 or that he had placed his
funds at the disposal of the party and others to discharge
the liability arising out of the publication of the
advertisements.
We shall first take up the publication of the
advertisements in Nav Bharat Times for which it is alleged
that an expenditure of Rs. 2,61,274.00 was incurred or
authorised by Respondent No. 1.
PW6 Narayan Gawalani, the Manager of Nav Bharat Times
while appearing as a witness for the election petitioner
deposed that the newspaper receives advertisements through
advertising agencies, organisations and individuals. The
agencies which had released advertisements during the
elections were Prasad Publicity, Yugdharma Consultants and
Commercial Services (Y.C.C.S). For Prasad Publicity and
Y.C.C.S. they had a running account while Congress had no
running account with Nav Bharat. He then explained how
various advertisements appearing in the paper came to be
published and disclosed the sources from which the same had
come and also identified the person or party who had made
payments in respect of those advertisements. He went on to
depose that whenever the advertisements were received, they
were entered in a register called the “RO Input Register”
but the same had not been preserved and had since been
destroyed. That there was no other proof pertaining to the
receipt and publication of advertisements. He produced the
ledger and proved various advertisements, release orders,
bills etc. During his cross-examination, he was confronted
with various receipts and he went on to say
“None of the advertisements of which
the total works out to Rs. 26690/- as
stated above were given by Datta
Meghe. The payment also was not made
by Datta Meghe for those
advertisements. nor did he take
responsibility for making these
payments.”
While explaining the document Ex. 407 and the existence of
words “(Datta Meghe Election advertisements)” written in ink
in the copy of Ex. 407, he expressed ignorance as to when or
by whom those words were inserted in the office copy. He
admitted that in respect of Ex. 409A, the words “Datta Meghe
Account” did not appear in the original of the receipt but
could not say as to who had written those words in the copy.
The witness in response to the question regarding the
association of Respondent No. 2, with the partners of the
firm stated
“I know Ramgopal Maheshwari, Prakash
Maheshwari. They are the partners of
the firm which owns Nav Bharat. It is
true that on many common social formus
they and Respondent No. 2 Banwarilal
Purohit are together. I do not know if
they belong to the same community. It
is not true that our management has
forged the duplicates of receipt books
at the instance of Banwarilal Purohit
in order to boster his false claim in
the petition.”
The witness categorically asserted that “M 00042” is
the code number of “Datta Meghe Election Advertisement
Account” and that all payments against the said code number
and account had been received from Nagpur Shahar District
Congress-I Committee and that no payment was received from
Datta Meghe or from anyone else on behalf of Datta Meghe.
PW7, Shri Sapre, Manager, Accounts of Nav Bharat Times,
deposed that Manmohan Maheshwari is the Editor of Nav Bharat
Times. That receipt Ex. 406 was issued first in the name of
Datta Meghe but later on it was corrected to show the name
of the party as Congress Committee and it was done under his
instructions because it had been brought to his notice that
payment had not been made by Datta Meghe but by Nagpur
Shahar Indira Congress Committee. He went on to state that
the original receipt Ex. 406-A was signed by Kulkarni.
Explaining the difference in scoring of certain words in the
carbon copy Ex.406-A and its original Ex. 406-A, the witness
stated that he had scratched the original name and
substituted it with the name of Shahar Congress Committee.
He, however, could not state as to who did the scoring in
the original receipt Ex. 406-A, because the same had not
been done by him. When his attention was drawn to a number
of other receipts and their carbon copies and particularly
the entries thereon, with a view to point out the difference
between the entries in the originals and the copies, the
witness stated that since receipts had been issued by
different persons like Kulkarni, Prabhakar and others, he
could not explain the reason as to why the corrections had
been made but asserted that the corrections had not been
made only in the case of the receipts concerning Respondent
No. 1 but such corrections had been made also in respect of
the receipts issued in favour of some other candidates and
all such corrections were made in routine. The witness then
categorically admitted
“We do not have any personal account of
the respondent No. 1 Datta Meghe in
the account books. Except for the
`Datta Meghe Election Advertisement
Account’ there is no other account in
Datta Meghe’s name. The receipt Ex. 406
was fully written by Kulkarni when it
came to me, and it bore the two bill
numbers, and that was also the case
with original Ex. 406-A. I did not
check up in whose names the two bills
mentioned therein, stood. They had been
checked by the Advertisement
Department.”
PW8 Pannalal Poddar was working as an Assistant in the
advertisement department of Nav Bharat Times at the relevant
time. He deposed that a subsidiary ledger was being
maintained in the advertisement department and that the
bills which were prepared by the advertisement department
were entered in the said ledger against the accounts of the
concerned parties and that he used to maintain that
register. He stated that at page 496 of the ledger, there
exists an account in the name of “Datta Meghe Election
Advertisement Account” and that the said account had been
written up to page 498 under the same title. He stated that
out of the writing “Datta Meghe Election Advertising
Account” Nagpur, the words “Datta Meghe, Nagpur” were in his
handwriting but the remaining words “Election Advertisement
Account” were not in his handwriting and he could not even
identify the author of the words “Election Advertisement
Account” in the above entry. He stated that entry regarding
bill No. 9101007 of May, 1991 for Rs. 10,000/- stood
originally in the name of Datta Meghe but that name was
scored out later on but he could not say as to who had
scored out the name and susbsituted the same by “Nagpur
Congress”. That the scoring in the enteries had been done in
Bill Nos. 9101007, 9101343, 9101439 and 9101940 also by
substituting the name of Datta Meghe with Nagpur Congress
and Nagpur Shahar Zila Congress-I. He, however, did not know
as to who had made the corrections or even the time when the
same had been made or the reason why they had been made.
During his cross-examination, he admitted that there were
neither any erasers nor corrections in the subsidiary
register in regard to the four bills (above noted) and that
the entries in that register had been made within 5 to 7
days of the issuing of the receipts. The witness
specifically admitted that it ” is not possible to say by
referring to the account whether payment was received in
this account through any other organisation except the
Congress Committees.”
Respondent No. 1 appearing as R1W1 deposed that
Parshionikar had been entrusted with the work of issuing
advertisements on behalf of the Congress Committee. That
Parshionikar was a man of his confidence. He denied that he
had himself entrusted any job of publication of the
advertisements in the newspapers to Parshionikar. He went on
to add that he had not asked Nav Bharat Times to open a
separate account for his election advertisements and denied
any knowledge whether Nav Bharat Times had opened any
account as “Datta Meghe Account”. He denied the suggestion
that Account No. M-0042 had been opened by him initially in
the name of “Datta Meghe Account” but was lateron converted,
at his instance, to the name of “Data Meghe Election
Advertisements Account” to escape the rigours of law. He
went on to asert that he had not given any advertisement to
Nav Bharat Times nor had he paid any amount to the said
paper.
Dr. Ghatate, learned counsel appearing for the
appellants argued that since there was an account in the
name of Datta Meghe, being Account No. M-0042, and
admittedly the District Congress Committee had no account
with Nav Bharat Times, the inference was obvious that the
assertion of the returned candidate that neither he had
issued any advertisements in Nav Bharat Times nor did he
make any payment for the same or even agreed to reimburse
the expenses incurred for the publication of the
advertisements in the said paper was not correct. He
submitted that the interpolations made in the copy of the
receipt Ex. 406 and its original Ex. 406-A was a tell tale
example of the tampering of the record by Nav Bharat Times
with a view to help Respondent No. 1 to conceal the
incurring of expenditure by him and that an adverse
inference should be drawn that all the scoring etc. by the
employees of Nav Bharat Times only with a view to favour
Respondent No. 1, In support of the argument, learned
counsel pointed out that receipt Ex. 406 dated 17.5.1991 was
initially issued in the name of Datta Meghe and subsequently
in the original receipt Ex. 406A, where the name of the
party had been initially left blank, the name of Congress
Committee was written even though in the carbon copy, the
name of the party continued to be shown as Datta Meghe which
was also later on interpolated and substitued to read “Datta
Meghe Election Advertisement Account”. Learned counsel
submitted that from the fact that the original receipt Ex.
406A, was produced during the cross-examination of the
witness by the counsel for Respondent No. 1 the only
explanation for the original receipt Ex. 406-A being found
in possession of Respondent No. 1, could be that he had made
the payment and kept the receipt, as otherwise there was no
occasion for the original receipt to be found with the
counsel for the returned candidate.
Thus, wherever it was found that the involvement of
Datta Meghe could be proved, his name was scored off and
replaced by Congress Committee etc. by Nav Bharat Times.
According to Dr. Ghatate even if Datta Meghe himself had not
placed any order for issuance of any of to the newspaper, it
was out of the funds provided by him that the payments had
been made and therefore the returned candidate would be
deemed to have incurred the said expenditure. Though the
arguments of Dr. Ghatate appear on the first blush to be
attractive but they do not bear close scrutiny. Had receipt
Ex. 406-A, which is the original of receipt Ex. 406 been
with Respondent No. 1, containing a blank entry which was
later on filled up as District Congress Committee showing it
as the party making the payment, there was no reason why the
same entry could not appear in the carbon copy Ex. 406, if
the employees from Nav Bharat Times were out to oblige
Respondent No. 1. The explanation given by the witnesses
from Nav Bharat Times regarding the appearance of different
names in the original and the carbon copy, cannot be said to
be wholly unacceptable, particularly in view of the
attendant circumstances. The possibility that interpolation
was made in the copy of the receipt Ex. 406, to create
evidence against the returned candidate also cannot be ruled
out particularly in view of the association of respondent
No. 2 with the management of Nav Bharat Times. If the
original Ex. 406A contained the name of Congress Committee
and the entry in the carbon copy had been left blank, it
could have been filled up by adding the name of Datta Meghe
That apart, the receipts Ex. 406-A and its carbon copy Ex.
406 relate to payments made in respect of two bills based on
two distinct release order. Neither the correctness of the
release orders, admittedly not issued by Datta Meghe, nor
the authenticity of the relevant bills, which bills again
had not been drawn in the name of the returned candidate,
has been doubted by the appellants. Therefore, much capital
cannot be made out of the difference of the entrfes in the
original and the carbon copy of receipts Ex. 406-A and Ex.
406, when it is not disputed that Ex. 406 was actually
issued in the name of Nagpur Shahar Indira Congress
Committee. It is also pertinent to notice here that the
appellants have led no evidence whatsoever to show that any
order for advertisement had been placed by Respondent No. 1
himself or by his election agent with Nav Bharat Times in
respect of either of the two release orders or bills. Not a
single bill, out of the massive record produced by the
appellants, is in the name of the returned candidate. There
is not a single receipt of payment issued in the name of the
returned candidate either. The witnesses appearing on behalf
of the petitioners have categorically asserted with
reference to the record that no amount had been paid by
Respondent No. 1 for any of the advertisements published by
them in their newspapers. The learned Trial Judge has
elaborately considered various documents to which his
attention was drawn and the arguments raised on the basis of
the so-called interpolations etc. on some of the documents
and concluded that there had been some errors in the
mentioning of Code numbers in some receipts etc. But rightly
found that the first respondent could not be held
responsible for any of those interpolations. No evidence
direct or circumstantial has been led by the petitioners to
support the charges levelled against the returned candidate
to the effect that the returned candidate had provided funds
to the party and it was his money which was paid through the
hands of the party. The allegation has remained absolutely
unsubstantiated. As a matter of fact, the evidence led by
the election petitioners instead of supporting their case,
has to a large extent, demolished the same in as much as
none of the witnesses have contradicted the assertion of the
returned candidate that he incurred no expense, other than
that which he had disclosed in the return of his election
expense. The Trial Court therefore, rightly held that the
expenses in respect of all the advertisements (subject
matter of the issues) which were published in Nav Bharat
Times could not be said to have been incurred or authorised
by the first respondent. We find that the conclusion arrived
at by the Trial Court is based on correct and proper
appreciation of the evidence and learned counsel for the
appellants has been unable to point out any flaw or error in
the reasoning of the learned Single Judge of the High Court.
We, accordingly uphold the finding of the High Court.
We shall now consider the allegations regarding the
expenditure allegedly incurred in connection with the
advertisements which appeared in different issues of Nagpur
Times and Nagpur Patrika for the election of the returned
candidate. It is not disputed that none of the
advertisements were issued by the returned candidate himself
nor any bill was drawn against him nor any payment was
received from him. These advertisements appeared under
different names. For example, the advertisements, Ex. 84/13
and 84/15 appeared in the name of a “Well Wisher”. The bill
for those advertisements, Ex. 474, was drawn by the Nagpur
Times /Nagpur Patrika combined in the name of “Nitin
Furnitures” and the receipt of payment, Ex. 475 was also
drawn in the name of “Nitin Furnitures”, Nagpur. Similarly,
two advertisements dated 8.6.1991 published in Nagpur Times
being Ex. 84/14 and 85/15, were published by “Punjab
Woodcrafts”. The bills in respect of the same were drawn in
the name of `Punjab Woodcrafts’ for Rs. 15,000/- and the
receipt, Ex. 477 dated 14.9.1991, also shows the name of
M/s. Punjab Woodcrafts as the party who had made the
payment. The advertisement issued in the Nagpur Times, Ex.
84/15 and in Nagpur Patrika, Ex. 85/16 were again published
by a “Well Wisher” and the bill Ex. 478 dated 30th June,
1991 for the said advertisement was issued in the name of
“Ranjit Engineering Works” and the receipt, Ex. 479, for the
same was also issued in the name of Ranjit Engineering Works
(by mentioning its Code No. ICR-0436). Again, for the
advertisements published in Nagpur Times and Nagpur Patrika
dated 10.6.1991, by a “Well Wisher”, the bill was prepared
in the name of “Talmale Bandhu” on 30th June 1991 and the
receipt in respect of the said bill dated 14.9.1991 was also
issued in favour of “Talmale Bandhu”.
The appellants examined Shri Mahendra Bangarde PW 40
who was working as the Finance Manager with Nagpur Times
since 1983. He stated that Ms. Neelima used to work as the
Data Operator. She, however, was not the examined by the
appellant. He proved various entries in the ledgers, bills
and receipts concerning publication of advertisements in the
Nagpur Times. He did not state that any of those
advertisements had been published either by Respondent No. 1
or by his election agent or that any payment in respect
thereof had been made by Respondent No. 1 or his election
agent nor even that respondent NO. 1 or his election agent
had taken the responsibility for making the payment for the
concerned advertisements.
Santosh Sarode PW9 was working as the Manager General
(Coordination) with the Nagpur Times at the relevant time
and deposed that he knew about the advertisements which were
published in the Nagpur Times and Nagpur Patrika during the
last Lok Sabha elections. He deposed that various
advertisements which had appeared in the Nagpur Times in
support of the election of the returned candidate had been
published at the instance of Shri Parshoinkar, who had taken
the responsibility for settling the bills in respect of
those advertisements. He went on to say that it was at the
asking of Shri Parshoinkar that bill Ex. 474 for Rs.
15,000/- dated 30.6.1991 was drawn in the name of ‘Nitin
Furnitures’. The payment for the said bill was received on
14.9.1991 from Nitin Furnitures. He admitted that the Punjab
Woodcrafts had an account with the Newspaper and that it was
their represntative who had requested them for the
publication of an advertisement for which also Shri
Parshoinkar had taken the responsibility for making payment
and that later on Shri Parshoinkar had brought the amount
and paid the same on behalf of Punjab Woodcrafts. The
witness stated that according to his knowledge, Shri
Parshoinkar was an office bearer of the Congress Committee
and admitted that payments for some other bills also were
made by Shri Parshoinkar on behalf of various parties as
well as on behalf of the Congress Committee. Referring to
the corrections made in the Code numbers appearing in
certain bills, the witness stated that he had no knowledge
as to who had made those corrections or overwritings and
when the same were made but categorically asserted that all
the payments had been made only by Shri Parshoinkar. The
witness admitted that there was an account styled as “Datta
Meghe Election Advertisement Account” with his newspaper and
that the Nagpur Shahar District Congress Committee also had
a separate account with his paper. Explaining the
corrections made in respect of recipts No. 779, 825, 1026,
1356 which had been first shown credited in the account of
“Datta Meghe Election Advertisement Account”, the witness
stated that it was the Nagpur Shahar District Congress
Committee, who had asked the newspaper to publish the
advertisements and had also undertaken the responsibility to
make the payment for the same and since the said Congress
Committee had also an account with them directly, they had
transferred the “amounts” from “Datta Meghe Election
Advertisement Account” to the account of Nagpur Shahar
District Congress Committee, as the advertisements had
actually emanated from the Congress Committee and payments
had also been made by the Congress Committee. The witness
explained that initially in their records all the amounts
which were being received from Nagpur Shahar District
Congress Committee as well as from Nagpur Gramin Committee
were being credited in the Account of ‘Datta Meghe Election
Advertisement Account’ but lateron the same were corrected
to accord with the actualities and credited in the
appropriate Account of the party responsible for the
advertisement and payments. The witness stated that since
Shri Parshoinkar had brought the payments for the
advertisements from the Nagpur Shahar District
CongressCommittee, Nagpur Gramin Congress Committee, Nitin
Furnitures, Punjab Woodcrafts, Ranjit Engineering Works and
Talmals Bandhu there had been some confusion about the
mentioning of the Code Numbers in various receipts. During
his, cross-examination, the witness categorically asserted
that no payments were made by Datta Meghe for the
advertisements which were released by Prasad publicity nor
had Datta Meghe taken the responsibility for making payments
in respect of those advertisements. Thus, we find that
according to the witnesses examined by the petitioners,
neither Datta Meghe had issued any advertisement for
publication nor had he made any payments in respect of the
advertisements issued at the instance of different parties
in the newspapers.
Respondent No. 1 during the course of his examination
asserted:
“I had not asked any of the news
papers to open an account in my name
in respect of the advertisements, during
the election period. Neither did I ask
my election agent or any one else to
open such an account on my behalf. I
have no account in my name as Datta
Meghe with any of the news papers,
because I never asked such account to
be opened. I learnt yesterday that an
account had been opened in my name by
Janvad, only yesterday. I do not
know whether that account had been
opened during the election period. It
is not true that I had opened personal
accounts in my name with Nav Bharat,
Nagpur Times and Nagpur Patrika in
relation to the advertisements during
the election. It is not true that I had
asked the entries which stood in my
name to be transferred in the name
of the Congress Committees. It is not
true that I supplied the funds for
publishing these advertisements to
the Congress Committees, or the
institutions or individuals who made the
payments.”
The assertion of the returned candidate finds support
from the witnesses produced by the petitioners concerning
the advertisements published in Nagpur Times and Nagpur
Patrika.
The argument raised by Dr. Ghatate in respect of the
advertisements published in Nagpur Times and Nagpur Patrika
was only a repetition of the arguments raised on behalf of
the election petitiones in the Trial court. The learned
Single Judge, after examining minutely various bills,
receipts, advertisements and entries in the ledgers etc. as
also analysing the oral evidence, came to the conclusion
that the election petitioners had failed to establish the
charge levelled against Respondent No. 1 to the effect that
he was responsible for the publication of any of the
advertisements or that he had incurred or authorised any
expenditure himself or through his election agent or even
that the funds allegedly provided by him had been utilised
to discharge the liabilities. The High Court found that the
returned candidate could not be connected with any of the
interpolations or tampering with the record of the newspaper
either and observed :
“The question, however, is
whatever may be the reasons for the
manipulation, can the liability for
manipulation be fastened on the first
respondent. Merely because there was a
change in the names in the bills and
there was every good reason for the
name of the first respondent, if it
had appeared in the original
document being suppressed and there
was a Datta Meghe Advertising Account
0056 in the book of Nav Samaj Ltd.,
it cannot be said that the first
respondent’s name had appeared in the
original bill and that, that was
removed and new names were substituted.
The mater cannot rest merely on
surmises. The persons, who had actually
accepted the advertisements, were not
examined. Though Sarode’s version,
when it comes to be against the
interest of the respondent No. 2. would
have to be considered with more care
and caution for disbelieving the
version that the first respondent was
not concerned with the advertisements
some positive evidence was necessary. On
the other hand, the positive evidence
is that the first respondent had not
given these advertisements and had not
accepted the responsibility for these
advertisements. None from Talmale
Bandu, Punjab Wood Craft, Ranjit
Engineering Works and Nitin Furniture
was called as a witness to show that
they had not given the advertisements.
If such evidence were led, then an
inference could have legitimately been
raised that since they had not given
these advertisements, they must have
been given by the first respondent,
because he would be the person who
would be really interested in advancing
his own cause. on their own, may come
forward for giving the advertisements,
without any apparent motive, in the
circumstances, though there is no
reason to doubt the evidence that the
names in the bills and the receipts
issued by Nav Samaj Ltd. had been
changed in order to conceal the real
advertiser, I find that that evidence
by itself is not sufficient to clothe
the first respondent with the
responsibility of giving the
advertisements.”
(Emphasis added)
We find ourselves in complete agreement with the above
opinion of the High Court. Relevant witnesses were not
examined by the election petitioners for reasons best know
to them. The appellants have offerred no explanation, much
less a satisfactory one, as to why those witnesses who were
relevant and were likely to shed some light were withheld.
The evidence led by the appellants is not only insufficient
but also confusing, contradictory and often destructive of
the case set up by the petitioners. We are hesitant, in the
face of the evidence on the record, to take a view different
than the High Court. On the basis of the above discussion,
Issue 5(b) (vi)&(vii), except to the extent we shall refer
to certain items lateron, are held not to have been
established by the election petitioners and the same are
decided against them.
Issue No.6 (a).(b)&(c)
In para 2.23 A of the amended election petition, the
case projected by the election petitioners was that the
returned candidate, respondent No. 1, had got released
various advertisements through Yugdharma Consultants and
Commercial services for publication in the newspaper ‘Tarun
Bharat’. A Statement, Annexure 18-A, indicating the bills in
respect of the advertisements allegedly released by
respondent No. 1 in the said newspaper was filed and it was
alleged that an amount of Rs. 2090.00 had been received by
Tarun Bharat towards the advertisement expenses. It was
pleaded that though some of the bills had been been drawn in
the name of respondent No. 1 himself and he had been shown
to have settled those bills by making payments thereof, some
of the other bills were fictitiously shown under the names
of certain dummy organisations or individuals, though the
payment in respect of each one of those items of
advertisements was also made by respondent No. 1 himself
and/or by his election agent, Shri Sudhakar Deshmukh, during
the period 25.4.1991 to 16.6.1991 and all that expense was
suppressed from the return of election expenses. In para
2.23/B of the amended petition, it was pleaded that the
advertisement details where of were contained in Annexures
18-B and 18-C, had also been released for publication by
respondent No. 1 himself and/or by his election agent or by
the individuals/organisations and others under the authority
of Respondent No. 1 and or his election agent. to the daily
newspaper Hitvada, through Orange city Advertising, Nagpur
and prasad Publicity, Nagpur respectively and an amount of
Rs. 40,000/- and 23,520/- had been paid to Hitvada towards
the charges of those advertisements through orange city
Advertising and prasad Publicity respectively. That even
though the bills for the amount were drawn in the name of
certain organisations, and individuals actually the payments
in respect of each one of the bills, had been made by
Respondent No. 1 himself and/or his election agent, Shri
Sudhakar Deshmukh, but the returned candidate had failed to
include the said expenditure in the return of his election
expenses.
In Paragraph 2.23 C of the amended election petition,
by reference to the statement contained in Annexure 18-D,
detailing the advertisements released through Prasad
Publicity to Tarun Bharat, it was pleaded that those
advertisements had been issued by respondent No. 1 for
publication in Tarun Bharat and an amount of Rs. 71,440/-
had been paid to Tarun Bharat towards the publication of
said advertisements and even though some of the bills were
drawn in the name of Respondent No.1 himself and he made the
payments thereof, the other bills had been fictitiously
drawn in the name of certain organisations or individuals,
though in fact the payment in respect of the same were made
either by Respondent No. 1 himself or by his election agent
shri Sudhikar Deshmukh and that an expenditure of Rs.
71.440/- in that behalf was not included by him in the
return of election expenses.
The returned candidate in his written statement, while
admitting the publication of some of the advertisements in
Tarun Bharat, the expenditure where of he had shown in the
return of election expenses, denied that he had made the
payments of Rs. 2090.00 to Tarun Bharat as alleged in
paragraph 2.23 A (Annexure 18A) or had even asked them to
publish the concerned advertisement. He also denied that he
had authorised or incurred an expenditure to the tune of
Rs.40,000.00 and 23,520.00 as alleged in para 2.23 B of the
amended election petition in respect of the items detailed
in Annexure 18 B and 18 C. In reply to para 2.23 C, the
returned candidate denied to have incurred any expenditure
himself or though his election agent or with his consent
through any other organisation, association or individual
for the advertisements, as itemised in Annexure 18-D, to the
election petition. He asserted that no expenditure with
regard to the publication of the alleged advertisements had
been incurred or authorised by him and he categorically
denied to have suppressed any amount from the return of his
election expense.
We shall first take up for consideration Issue No. 6(c)
which concerns the publication of seven advertisements,
which according to the election petitioners were issued by
the election agent of Respondent No. 1, Shri Sudhakar
Deshmukh and Published on 18.6.1991 in Lok Mat, Lok Mat
Samachar, Hitavad, Nagpur Times, Nagpur Patrika, Nav Bharat
and Tarun Bharat. The said advertisements were “thanks
giving” advertisements. The total expenditure incurred in
respect of the same as alleged in the amended election
petition was Rs. 39,500/-. Some of the advertisements were
alleged to have been directly released to the newspapers by
the election agent of Respondent No. 1 while others were
alleged to have been released through prasad Publicity.
According to Mr. Manohar, the learned senior counsel
for the returned candidate the expenses involved in the
publication of all these advertisements, even if accepted as
true and assumed for the sake of argument to have been
incurred or authorised by the election agent of Respondent
No. 1, were not required to be included in the election
expenses, as the advertisements had been published after the
declaration of the result and were not published during the
crucial dates mentioned in Section 77 of the Act.According
to Dr. Ghatate, on the other hand, since the advertisements
had appeared in various newspapers on 18.6.1991, it would be
reasonable to presume that the advertisements had been
issued prior to mid-night between 17th June,1991 and 18th
June,1991 and therefore the expenditure involved in the
publication of these advertisements would be deemed to be an
expenditure incurred in connection with the election and was
required to be included in the return of election
expenditure.
As already noticed, Section 77(1) of the Act mandates
that a separate and correct account of all the expenditure
in connection with the election, incurred or authorised by
the returned candidate or by his election agent between the
dates on which he had been nominated and the date of
declaration of the results thereof, both dates inclusive,
shall be maintained. The High Court, after a detailed
discussion of the submissions made by learned counsel for
the parties, which have been reiterated before us also, came
to the conclusion that all the seven advertisements for
which the total expenditure of Rs. 39,500/- was alleged to
have been incurred or authorised by the election agent of
the returned candidate were “thanks giving” advertisements
and were published after the declaration of result and
therefore they did not fall within the prohibitory limits of
the time schedule prescribed in Sub- section (1) of section
77 of the Act and were as such not required to be taken into
account while computing the expenses incurred by the first
respondent.
We are in agreement with the view of the High Court
that the advertisements in question could not be said to
have been issued in connection with the election, even if
that expression is to be given a wide amplitude. What is it
that the Legislature intended to achieve by prescribing the
inner and the outer limits in Section 77 of the Act ?
Obviously, it was the elimination of money influence during
the elections and maintaining of purity of elections. The
expenditure incurred after the declaration of the result of
the election can possibly have no nexus with the purity of
the electoral process. The very fact that the advertisements
thanked the electorate for electing Datta Meghe would show
that the same could only have been issued for publication
after the declaration of Datta Meghe as the returned
candidate. The expenditure incurred in that connection
therefore cannot be said to be an expenditure ‘authorised’
or ‘incurred’ during the prohibited dates. Indeed, there may
be cases where some expenditure can be incurred or
authorised by a returned candidate in connection with his
election, even after the declaration of the result, but
unless that expenditure can be related to the process of
election, authorised or incurred during the prohibitory
limits set out in Section 77 (1) of the Act, it is not
required to be included in the return of expenses. The mere
fact that the advertisements appeared in the newspapers on
the very next day cannot lead to any presumption that the
expenditure in connection therewith had been incurred or
authorised by the returned candidate during the prescribed
prohibitory dates in anticipation of his being declared
elected. We, agree and uphold the finding of the High Court
that there was no nexus between the amount spent on thanks
giving advertisements with the election after the
declaration of the result of election and decide issue No.
6(c) against the election petitioners.
Issue No. 6(a) arises out of the allegations made in
para 2.13 of the election petition and the items contained
in Annexures 17 and 18 to the petition. It deals with the
advertisements allegedly issued by Respondent No. 1 through
M/s. Yugdharma Consultants and Commercial Services, Nagpur
(for short ‘YCCS’) to publicise his candidature. A chart
containing 27 items of expenditure incurred in respect of
various advertisements published on different dates in
different newspapers in connection with the election of the
first respondent were relied upon to urge that the
advertisements had been released through two advertising
agencies namely Yogdharma Consultants & Commercial Services
(YCCS) and Prasad Publicity. According to the election
petitioners Respondent No. 1 incurred an expenditure of
Rs.2,74,224/- on the advertisements released through YCCS
but the said expenditure has been suppressed by the returned
candidate and if included in the return of election expense,
would show that the returned candidate had committed the
corrupt practice as envisaged by Section 123 (b) of the Act.
That some of the advertisements had been published in
various newspapers and had been released through YCCS or
Prasad Publicity has not been disputed by learned counsel
for Respondent No. 1 before us. His argument, however, is
that neither Respondent No.1 had authorised the publication
of those advertisements through YCCS or Prasad Publicity nor
had Respondent No.1 or his election agent authorised or
incurred the alleged expenditure of Rs. 2,74,224/- in
respect of those advertisements. The main thrust of the
argument of Dr. Ghatate, appearing for the appellants, on
the other hand was that in the release orders which had been
issued by YCCS the name of “Datta Meghe” had been shown as
the client and, therefore, it was futile to urge that
respondent No.1 or his election agent had not incurred or
authorised the expenditure in connection with those
advertisements. Reliance was placed on the advertisements
which appeared in the issues of Lok Mat and Lok Mat Samachar
dated 1.5.1991, 2.5.91, 3.5.91, 5.5.91, 6.5.91 and 21.5.91,
being Ex. 83/2 to 83/6, 83/34, 83/35, and 83/91 to argue the
expenditure in respect of the same had been incurred or
authorised by respondent No.1. We, however, find that the
bills in respect of each of the aforesaid advertisements
were admittedly issued in the names of persons, other than
the first respondent. Those had been issued in the names of
Sushila Bai Jadav; Nagpur Nagar Congress Committee; Yuvak
Congress Committee and Supersteel Furniture etc. Even in
respect of the advertisements which appeared in the issues
of Yugdharma dated 1.5.91, 3.5.91, 8.5.91 and 11.5.91, the
bills had admittedly been issued in the names of Nagpur
Nagar Zila Congress Committee. The election petitioners
sought to connect Respondent No.1 with the advertisements
issued through YCCS by pointing out that the name of Shri
Datta Meghe had been shown as the client in those bills and,
therefore, he alone must be presumed to have discharged the
liability arising out of those bills either directly or by
placing his funds in the hands of the parties in whose names
the bills had been drawn. Reliance has been placed on the
statement of Shri Madhukar Kishti, PW 55 by learned counsel
for the appellants in support of his submissions.
Shri Madhukar Kishti, PW 55 was at the relevant time
the Managing Director of Yugdharma Cooperative Society, the
parent company, which publishes the daily Yugdharma run by
Yugdharma Industrial Cooperative society. Yugdharma Workers
Newspapers Pvt. Ltd. used to run the daily Yugdharma prior
to it being taken over by the YCCS. It was Yugdharma Workers
Pvt. Ltd. who had constituted YCCS in March 1990 as the
sister concern for routing advertisements to different
newspapers. PW55 deposed that he used to do whatever work
was required to be done by the YCCS. He went on to state
that YCCS released advertisements for publication for Datta
Meghe’s candidature for the Parliamentary Elections of 1991
to various newspapers and asserted that those advertisements
were received by them from Yuvak Congress Committee etc.
Explaining as to how the name of Datta Meghe had appeared in
certain release orders against the name of the client even
though Datta Meghe had not released any of the
advertisements, the witness stated that since the space had
to be booked in relation to the election of Datta Meghe in
various newspapers, the witness had, on his own mentioned
the name of Datta Meghe against the name of the client for
the sake of convenience, though Datta Meghe had not
entrusted any advertisement to YCCS for publication. The
witness added that he had not received any orders personally
on behalf of YCCS from any of the clients of YCCS and that
the orders used to be received by Shri Thakre Shri Prakash
Deshpande. In his cross-examination, the witness, however,
conceded that the name of Datta Meghe had been mentioned in
cerain release orders only because the name of the client
had not been disclosed by the party and the space was
required to be booked in the newspapaers in advance owing to
the rush of advertisements. Since, the advertisements were
required to be published in connection with the election of
Datta Meghe, he had shown his name against the name of the
client on his own accord. PW55, further, admitted that
neither any bill nor any receipt had been issued by the YCCS
in the name of Datta Meghe. Thus, we find that PW55 does not
advance the case of the election petitioners at all in so
far as the allegations concerning issue No. 6(a) are
concerned. Besides, this witness had no personal knowledge
of the nature of the transactions on the basis of which the
release orders came to be issued. The election petitioners
had summoned various release orders and other record from
this witness to connect the name of Datta Maghe but
curiously enough they were neither exhibited nor got proved.
The other witnesses, who could throw some light on the
nature of the transaction, like Shri Thakre and Shri Prakash
Deshpande, though summoned, were not examined on this aspect
for reasons best known to them. The submission of learned
counsel for the appellants that the explanation given by
PW55 regarding the reason for the name of Datta Meghe
appearing in some of the release orders is not satisfactory
cannot help the appellants because there is no other
evidence or explanation offered by the election petitioner.
Even otherwise the explanation appears to be quite
plausible. It was for the election petitioners to adduce
better and cogent evidence, direct or circumstantial, to
show that the returned candidate had incurred or authorised
either himself or through his election agent the expenditure
in respect of the advertisements issued by YCCS, as alleged
in the petition, but no such evidence was produced and the
allegation has remained unsubstantiated.
Shri Prakash Despande, PW11, the Deputy General Manager
of Hitvada did prove the signatures of PW55 on release order
Ex. 586 dated 7.5.1991 but was silent about any transaction
between YCCS and the first respondent. Same position exists
in respect of other advertisements also. We need not,
therefore, detain ourselves to refer to all other
advertisements, their release orders, bills or receipts
because from the evidence of PW55 it stands established that
no payment for any of the advertisments issued by YCCS came
from the returned candidate, Respondent No. 1 deposed that
the advertisements had been issued by different parties,
associations and individuals and those parties had made the
necessary payments. The petitioners have led no evidence to
show that the advertisements which were issued under the
names of different parties, organisations and individuals
like Nagpur Nagar Congress Committee, Indira Brigade, Youth
Congress, Phartiva Sher Sangathana, Vidharbha Professors
Club etc. were in fact not issued by those parties,
organisations, institutions or individuals, by examining any
witness from such bodies and, therefore, the argument that
the advertisements, though shown to have been issued by
different parties and organistions etc., were in fact issued
at the instance of the first respondent or that it was his
money which they had paid to discharge the liabilities in
respect of these advertisements, has no basis let alone any
foundation. The election petitioners have totally failed to
bring any material on the record to connect Respondent No. 1
either with the publication of or expenditure incurred in
respect of the various advertisements as alleged in the
petition. Even though the names of the parties,
organisations, associations, institutions, and individuals
etc. had been mentioned in the advertisements as the
sponsors of the advertisements, the election petitioners did
not examine any one of them to elicit from them that they
had not issued or caused to be issued those advertisements
or that they had not incurred any expense in connection
therewith. We are not impressed with the submission of the
learned counsel for the petitioners that since identical
advertisements came to be issued simultaneously in different
newspapers on the same date or on different dates, an
inference should be raised that it was done only at the
instance of the first respondent, because he alone was the
beneficiary irrespective of different names of sponsors. The
argument has neither logic nor any basis. The election
petitioners led no evidence to even create a doubt about the
identity of the sponsors and merely because identical
advertisements appeared on the same date, it is not possible
to hold that the sponsors were fictitious persons or that
the actual sponsor was the returned candidate himself. It is
not unknown that during the elections, many sympathisers as
well as ‘others’ come forward to support the candidature of
a particular candidate and sponsor and pay for the
advertisements which they get published to further the
prospects of that candidate’s election. Moreover, apart from
the returned candidate, the party which sponsors him as its
candidate is equally interested in the furtherance of the
prospects of his election and may approach different
organisations, associations or individuals to sponsor and
publish the advertisements at their expense in favour of the
candidate and even to suggest to them that the same could be
done by availing of the services of YCCS which was engaged
in the propoganda cannot be ruled out. The burden of proving
the issue was heavy on the election petitioners but they
have miserably failed to discharge the burden. No evidence,
direct or circumstantial has been led even to show that it
was the money of the returned candidate which had been used
by the party, other associations, institutions or persons,
for the publication of the advertisements in various
newspapers. The evidence on the record does not lead to any
inference that it was the first respondent’s money which was
used for publication of advertisements and in the absence of
such an evidence, no responsibility can be fastened on the
first respondent in respect of the expenditure incurred in
connection with those advertisements. The learned trial
Judge after a detailed discussion of various exhibits and
taking into consideration the law on the subject concluded
that :
………………………………….
” Datta Meghe’s connection with the
advertisements released by YCCS has
not been established, and there is no
other evidence to show that Datta
Meghe either incurred or authorised the
expenses for the advertisements
released through YCCS, and all the
advertisements, which have been issued
through the agency of YCCS will have to
be left out, while considering the
expenses incurred or authorised by the
first respondent Datta Meghe.”
We are in complete agreement with the
above conclusions and nothing has been
pointed out before us to persuade us to
take a different view. Issue No. 6(a) is, therefore, decided
against the election petitioners.
ISSUE NO. 6(b)
According to the allegations contained in para
2.23-A of the amended election petition, the returned
candidate had, besides releasing advertisements through YCCS
in various newspapers also utilised the services of Orange
City Advertising, Nagpur and Prasad Publicity, Nagpur for
publication of advertisements in connection with the
furtherance of his elections in various newspapers. The
details of the advertisements allegedly released by the
returned candidate to the newspaper daily Hitvada through
Orange City Advertising, Nagpur and Prasad Publicity Nagpur
were provided in Annexure 18B and C attached to the election
petition. The total amount alleged to have been spent by the
returned candidate in that behalf was stated to be
Rs.40,000/- and Rs.23,520/-. In para 2.23-B the election
petitioners averred that although, it appears from the
statements at Annex. 18B and 18C that the bills were issued
in the name of certain organisations, the payments in
respect of each one of the bills had in fact been made by
respondent No. 1 himself and/or his election agent, Shri
Sudhakar Deshmukh during the period from 25.4.91 to 16.6.91.
It was alleged that the orders for each of the items of
advertisements appearing in the statements at Anex. 18B 18C
were also placed by respondent No. 1 himself and/or by his
election agent Shri Sudhakar Deshmukh or by the
organisations and individuals as indicated in the statements
at the instance and under the authority of respondent No. 1
or his election agent. Besides the election petitioners
alleged in para 2.23-C that some more advertisements had
been released by respondent No. 1 during 25.4.91 to 16.6.91
through Prasad Publicity in Tarun Bharat and an expenditure
of Rs.71440/- had been incurred therefor which was also not
disclosed by the returned candidate in the return of his
expense.
In the written statement, respondent No. 1
categorically denied that the advertisements detailed in
Annexures 18B and 18C had been published or issued by him
and asserted that no expenditure in that behalf had been
incurred or authorised by him or by his election agent. It
was denied that he had authorised and/or incurred an
expenditure of Rs.40000/- and Rs.23520/- as itemised in
Annexure 18B and 18C. Similarly, it was asserted by the
returned candidate that he had not placed orders for any of
the advertisements detailed in Annexure 18D either himself
or through his election agent nor had he authorised any of
the organisations or individuals mentioned in Annexure 18D
to get published the advertisements. It was maintained that
no expenditure whatsoever with regard to the advertisements
itemised in Annexure 18D were incurred or authorised by the
returned candidate or by his election agent and therefore
there was no question of disclosing the same in the return
of election expenses. With regard to The advertisements
allegedly released through Orange City Advertising, the
learned trial Judge has noticed:
“With regard to Issue No.6(b), the
learned counsel for the petitioners
stated that he would not be in a
position to urge that the expenditure
on the advertisements introduced in the
expenditure incurred by the first
respondent. I have already found that
no respondent. I have already found that
no other item of expenditure
incurred through prasad Publicity,
except what has been included in issue
no. 5(b) (vi) & (vii) can be included,
and issue No. 6 (b) is answered
accordingly.”
Learned counsel for the appellants has not disputed the
above finding before us and as such we have no reason to
take a view different than the one taken by the High Court.
We have dealt with in the earlier part of the judgment,
the allegations relating to the expenditure incurred by the
returned candidate through Prasad Publicity, while dealing
with issues 5(b) (vi) and (vii). We shall now advert to the
findings with regard to certain amounts which have been
found to have been suppressed by the returned candidate from
the return of elections expenses.
The election petitioners relied upon the testimony of
Shri Anant Shastri PW50, who used to carry on the work of
advertising agency in the name of prasad Publicity. The
witness deposed that he knew respondent No.1 and that he had
received advertisements for publication in the newspapers
from several institutions with which respondent No.1 was
connected. Those institutions included Radhika Bai Meghe
Memorial Trust; Nagar Yuvak Shikshan Sanstha; Polytechnic;
Engineering College; Dental College; Pharmacy and Medical
College, being run by those institutions. That he had been
releasing the advertisements on behalf of those institutions
since 1984. He went on to add that payments had been
received for the publication of the advertisements from
various organisations as also from Nagpur Shahr Zila
Congress Committee and entered in a ledger which, however,
had been destroyed by him in the last week of March 1992. He
stated that the account ledger had been destroyed by him
before he had received the summons to appear in the court as
a witness in the election petition. According to PW50 he did
not himself write the account books and that the same were
written by his accountant Shri Dhale. After referring to the
counter foil book, PW50 deposed that ledger folio No. 226
pertained to the account of Yashwantrao Chauhan Social Forum
and that counterfoil No.003363 from the same counterfoil
book also bore ledger folio No. 226 and was issued in the
name of Datta Meghe Mitra Mandal. The word “staff” which had
been written below “Datta Meghe Mitra Mandal” in the copy
had, however, been scored out later on. The witness went on
to say that counter foil No.003364 also bore ledger folio
No. 226 and and was issued in the name of Nagpur Zila
Congress Committee. Counterfoil No. 003365 which also bore
ledger folio No. 226 was issued in the name of Narayan Ahuja
while counterfoil No. 003366 with the same ledger folio No.
was issued in the name of Rajiv Sena. The witness explained
as to how the same ledger folio No. (226) appeared against
various counterfoils and stated that various organisations
which had come forward to support the candidature of Datta
Meghe and were releasing advertisements in his favour had
been clubbed together under one and the same ledger folio
No. 226. He denied the suggestion that the account against
ledger folio No. 226 was of Datta Meghe and not of the
organisations clubbed together.
The High Court after considering the evidence of Anant
Shastri PW50 in great details opined that the witness was
enjoying the patronage of the returned candidate and of
various institutions with which the returned candidate was
connected and that the witness had destroyed the ledger, a
material document, “probably because those documents, if
retained, would not have been favourable to the first
respondent”. The High Court did not accept the explanation
offered by Anant Shastri PW50 regarding the time and reason
for the destruction of the ledger. The High Court repelled
the argument of learned counsel for the returned candidate
that the release order of prasad Publicity Ex. 225 relating
to advertisement Ex. 88/1 was suspicious because the date
28.4.91 did not appear on the carbon copy Ex.712, which had
been produced by Anant Shastri PW50 presumably because the
High Court felt that the witness was favouring the returned
candidate. Similarly, the High Court did not accept the
criticism made by learned counsel for the respondent in
respect of release order No. 5031 dated 28.4.91 in which the
name of Datta Meghe had appeared in the carbon copy, as the
client, though there was no mention of the date 28.4.91 on
it. The High Court noticed that though below the name of
Datta Meghe, the word “Karyalaya” had been initially
mentioned in Ex. 711, the manner in which that word had been
written would show that the word “Karyalaya” might not have
been written on 28.4.91 but on some other date. According to
Shri Anant Shastri PW50 the advertisement dated 28.4.91 had
been given to him by Shri Vasant Parshonikar on behalf of
Nagpur Nagar Zila Congress and it was for publication of the
programmes arranged by Nagpur Nagar Zila Congress Committee.
That he had given identical advertisements to four
newspapers including Nagpur Patrika and Lokmat. According to
the witness, the word “Karyalaya” had been omitted from
Ex.325 inadvertently as he forgot to mention it. The
witness, however, stated that Datta Meghe was not his client
for the said advertisement and the words ‘Datta Meghe’ were
used only as a caption and the actual bill was issued in the
name of the real client, Nagpur Nagar Zila Congress
Comittee.
According to Shri Padmakar PaunikarPW3, bill Ex. 156
was issued to the party on 29.4.91 itself. It was signed by
Bhojraj PW12 and the receipt Ex.157 was also signed by
Bhojraj PW12. He admitted that both the bills EX.227 were
prepared on two different type-writers and both bore the
signatures of PW12. he Conceded that the three bills dated
29.4.91 were issued on three different formats. EX.156 was
issued on the format Nar kesari Prakashan and disclosed
Datta Meghe as the client and that advertisement had been
released by prasad Publicity; EX.227 was on the format of
Tarun Bharat and showed Yashwantrao Chauhan Forum as the
party Concerned; and EX. 603 was again on the format of
Tarun Bharat and showed Datta Meghe as the name of the
client. According to PW12, the name of Yashwantrao Chauhan
Forum was shown as client in Ex. 227 because they had asked
for the bill in the name of Yashwantrao Forum when bill Ex.
227 was issued. The witness admitted that all the three
bills were identical. The High Court dealt with this issue
relating to the advertisement Ex.88/1 which had appeared in
Tarun Bharat for a sum of Rs. 1320/- and observed:
“If one were to go only by the
different formats on which the bills
were issued and different names
which appeared on the bills, it would
appear that there was a good deal of
confusion and on the basis of the bills
themselves, no inference could be
raised as to who was the real client. If
regard is to be had to the fact that the
original release orders mentioned the
name of Datta Meghe as client, there
was no reason for Tarun Bharat to
depart from normal practice of
issuing the bills in the name of
Prasad Publicity by showing Datta
Meghe as the client, and that seems to
have been done with the bill
Ex.156) issued purportedly on 29.4.91
on the format of Narkeshri Prakashan. By
that time, the forms of Narkesari
Prakashan were being used. It would be
only when a bill witha different name
would be required that the change in
the name would appear, and the only
person, who was interested in having a
bill in the name different from the
one used in the release order, would be
Prasad Publicity which was represented
by Anant Shastri. To the extent that
Datta Meghe’s name appeared in the
original release order, there is no
demur even by Anant Shastri who was a
party to the transaction. If his version
that the name of Datta Meghe was
mentioned merely as a caption was
true, there was no difficulty for him
to allow the name of Datta Meghe to
continue in the original bills which
were issued. Coupled with the
position that all the original documents
issued by Tarun Bharat are said to have
been handed over by Anant Shastri to
a person about whose identity he was
not clear, it is difficult to accept
the position that the name of Datta
Meghe in the release orders issued to
Tarun Bharat appeared merely as a
caption.”
The High Court then opined:
“In view of the above factum, there
can be no doubt, though there was a
deliberate attempt to disguise the
transaction, that the amount of
Rs.1320/- under the bill Ex.156 for
the advertisement published in Tarun
Bharat dated 21.4.91 (Ex.88/1) on the
basis of which the release order
(Ex.225), was paid bythe first
respondent under receipt Ex.157, on
29.4.91.”
After hearing learned counsel for the returned
candidate at length and going through the record, in our
opinion the finding recorded by the High Court is quite
sound. The explanation for appearance of the name of Datta
Meghe in the release orders does not appeal to common sense.
Anant Shastri did not handover the documents to a ‘stranger’
whose identity he could not recollect and admittedly he did
not handover the same to Shri Parshoinikar. Thus, in the
facts and circumstances on the record, the High Court was
was right in concluding that the expense for bill No. 156 in
respect of advertisement EX. 88/1 had been authorised or
incurred by the returned candidate. Even the challenge to
the said finding by learned counsel for the returned
candidate before us was only half_hearted. We thus agree
with the finding of the High Court and hold that the
returned candidate did incur an expenditure of Rs. 1320/-
for Bill EX.156 in respect of the advertisement published in
Tarun Bharat Ex.88/1 but failed to include the same in the
return of his election expenses. The High Court rightly
included that amount to the amount disclosed in the return
of election expenditure.
Coming now to the advertisement which appeared in the
Election Special Issue of Tarun Bharat dated 21.5.91 and for
which an expenditure of Rs.7000/- was alleged to have been
incurred by the returned candidate, we find that the plea
with regard to this advertisement was not raised by the
appellants in the original election petition and was not
even included in the first amended election petition but was
introduced for the first time by an amendment dated
18.12.91. In the verification to the election petition, the
contents of the relevant paragraphs were verified as ‘partly
based on personal knowledge and partly on information
rceived from ……Tarun Bharat…..In the affidavit filed
in support of the allegations of corrupt practice, again the
contents of para 2.23 were verified as based partly on
personal knowledge and partly on information received from
the official record of Tarun Bharat. The election
petitioner, however, did not in his deposition disclose the
basis of his ‘personal knowlege’ for making the allegation.
In the pleadings a wide latitude was left by the election
petitioners to lead evidence on any of the various
‘possibilities’ detailed in the election petition. The
‘vagueness’ of the pleadings even after amendment shows that
the election petitioners were out on a wild goose chase and
trying to fish for evidence so as to be able to fasten some
liability on the returned candidate or his election agent at
least in some case. PW39 Laxman Trimbakrao Joshi, the Chief
Editor of Tarun Bharat was, examined by the election
petitioners in support of the allegations made in the
petition regarding publication of the advertisement in
Election Special Issue of Tarun Bharat. He deposed that
Tarun Bharat had decided to issue an Election Special Issue
after the elections were announced and that he had
personally contacted Datta Meghe about 8 to 10 days before
the publication of the issue on telephone and had a talk
with Datta Meghe personally and had requested him for the
issuance of an advertisement, as he was a contesting
candidate. Datta Meghe, according to the witness, had told
him that he would think about the matter and admittedly,
thereafter, did not get in touch with him. The witness went
on to state that an advertisement in support of respondent
No. 1 was published in Tarun Bharat dated 21.5.91. It had
been received through Prasad Advertising Agency (Prasad
Publicity) who had also supplied the material for
publication. The witness, however, did not know whether the
bill for the advertisement had been prepared in the name of
Prasad Publicity or someone else nor did he know nor as to
who had paid the bill. He did not even know as to who had
instructed Prasad Publicity to give the advertisement or who
made the payment for the same to the Prasad Publicity. This
advertisement Ex.221 is the subject matter of three bill Ex.
192 bearing No.4167 (shown as Duplicate); Ex.234 No.4178 and
Ex.605, No.4167 (written after scoring out 4178). All the
bills are dated 21.5.91. Where as in Ex.192, which was on
the format of Narkeshari Prakashan the bill was addressed to
Prasad Publicity, showing Datta Meghe’s name as the party
releasing the advertisement, Ex.234 was on the format of
Tarun Bharat and again addressed to Prasad Publicity but
showing NSUI as the client while Ex.605 was issued on the
format of Tarun Bharat and was addressed to prasad Publicity
and showed Datta Meghe as the client. The High Court after
considering the evidence of PW3, Paunikar (who had deposed
that Prasad Publicity had not placed the order); PW39 Laxman
Joshi, (who had deposed that the advertisement was received
from the Prasad Publicity that the bill had been settled by
Prasad Publicity); PW50 Anant Shastri and PW12 Bhojraj, held
that the advertisement had been issued by respondent No. 1
and that Anant Shastri PW50 had manipulated the bills and
the record to help the returned candidate.
We have carefully perused paragraphs 154 to 157 of the
judgment of the learned trial Judge dealing with the
question of the expenditure of Rs.7000/- in connection with
the advertisement Ex.221 in the Election Special Issue and
the evidence on record. Keeping in view the difference in
the three bills relating to the same advertisement and the
use of these different formats by Tarun Bharat, we find it
difficult to agree with the High Court that the election
petitioners have established that respondent No.1 had
incurred the expenditure of Rs.7000/- in respect of
publication of Ex.221. The findings appear to be rather
laboured ones and if Tarun Bharat advertising office was not
“very careful about giving the particulars to the bills
which they issued and that the bills were not issued from
bound book” as observed by the High Court, no
adverse.inference could be drawn against the returned
candidate. Indeed neither Shri Paunikar PW3 nor Bhojraj PW12
had any talk with Datta Meghe in respect of any of the
advertisement and from the testimony of PW39 Laxman Joshi,
it is not possible to hold that pursuant to the talk he had
with the returned candidate, the advertisement in question
had been published by the returned candidate himself and not
by or on behalf of NSUI in whose favour the bill had been
drawn. As already noticed neither in the verification of the
petition nor in the affidavit, PW39 had been disclosed as
the source of information. The appellants have not explained
the basis for making the said allegtions. The findings of
the High Court in our opinion are based on surmises and
conjectures and we agree with Mr. Manohar, learned senior
counsel for the returned candidate that in the face of the
vague pleadings and inconclusive evidence led by the
election petitioner coupled with the discrepent evidence of
PW39, who admittedly was not shown as the source of
information for the said allegation, it is not possible to
hold that the advertisement in question, Ex.221, had been
released by and paid for by Datta Meghe himself. It is also
relevant in this connection to note that no release order
had been got produced by the election petitioners in respect
of this advertisement which could disclose who the real
client was. We, are therefore, of the opinion that the
material on the record was not sufficient to fasten the
liability for the publication of the advertisement in the
Election Special Issue of Tarun Bharat Ex. 221 for Rs.7000/-
on the returned candidate. We, accordingly, set aside the
finding of the High Court and hold that Rs.7000/- was not
spent by the returned candidate for the publication of
Ex.221.
The High Court also found that an amount of Rs.9900/-
in respect of Ex.258 had been suppressed by the returned
candidate from the return of his election expenses. The
receipt Ex.258 shows that an amount of Rs.9900/- was paid on
20.5.91 by Sharad Pawar Mitra Mandal for the publications of
the advertisement. A consolidated bill had been issued in
the name of Sharad Pawar Mitra Mandal as the publisher.
According to PW4, Ashok Jain, the advertisements which
appeared in Lokmat and Lokmat Samachar Ex.83/18 and 83/19
dated 12.5.91 against bill No.257 had been given for
publication by Narayan Ahuja and Sharad Pawar Mitra Mandal.
The witness admitted that in the bill, the name of Narayan
Ahuja was not mentioned and that the payment for the bill
had been made by Sharad Pawar Mitra Mandal. From a careful
consideration of the observations of the High Court in paras
183 to 187, the pleadings and the evidence in that behalf,
we find that recourse has been taken by the learned trial
Judge to surmises and conjectures to hold that the
expenditure had in fact been incurred by respondent No.1 in
respect of the said advertisement. There is not even an iota
of evidence on the record to show that the first respondent
had incurred the expenditure of Rs.9100/- as alleged by the
election petitioners in their evidence, though not
specifically pleaded in their election petition both
original and amended. The election petitioners had learnt
about the role being played by Narayan Ahuja even before
they filed the election petition. It was for them to have
examined Narayan Ahuja to elicit from him as to whose funds
he was utilising for making payments for publication of
various advertisements. The petitioners chose not to examine
him for reasons best known to them. We do not think that
there was any obligation on the part of the returned
candidate to have examined Narayan Ahuja and lead negative
evidence to the effect that no funds had been provided to
him by the returned candidate and that the payments had been
made by the parties who were responsible for the publication
of various advertisements through him. The observations of
the High Court that Narayan Ahuja was a person “who had no
financial or political background for representing
organisations”, is clearly based on conjectures because the
evidence on the record does show that Narayan Ahuja had been
working for the political parties and without there being
any pleading or evidence on the record, it was to say the
least rather unfair for the High Court to conclude that
Narayan Ahuja had “neither any financial status nor any
political background”. We do not find it possible to agree
with the High Court that the returned candidate had
suppressed the amount of Rs.9100/- in respect of Ex.221
(receipt Ex.258) and accordingly set aside the said finding
of the High Court, which is not based on any satisfactory
material on the record.
The finding of the High Court in respect of some of the
items as detailed in Annexures 8 to 15, involving an
expenditure of Rs.22900/-, in our opinion are equally
fallacious and conjectural. The same are not based even on
correct appreciation of evidence. Recourse has been taken to
surmises and imagination to return these findings. We find
it difficult to subscribe to the view of the learned trial
Judge which is not supported by any material on the record.
The positive evidence led by the election petitioners is
that the returned candidate had not himself or through his
election agent given any of the advertisements for
publication and had not accepted any responsibility for
making payment in respect of any of those advertisement,
even though the advertisement were issued for the
furtherance of his election prospects. There is no direct or
circumstantial evidence led by the election petitioners to
show that the amount paid in the name of Sharad Pawar Mitra
Mandal had been placed at the disposal of the said Mandal by
the returned candidate or his election agent. There is no
evidence even to suggest that respondent No.1 had undertaken
the responsibility of making the payments in connection with
the expenses incurred by Sharad Pawar Mitra Mandal. The
election petitioners, for reasons best known to them, chose
not to examine any witness from Talmale Bandhu, Punjab
Woodcraft, Ranjit Engineering Works, Nitin Furniture, Sharad
Pawar Mitra Mandal, D.M.M. Mandal and various other
organisations under whose names either the advertisements
had been published or who had according to the evidence made
payments for those advertisements as per the bills and
receipts on the record. If any evidence was led to the
effect that none of the persons, parties or organisations
had in fact issued the advertisements or they or anyone of
them had denied the making of any payment, it may have been
possible to argue that those advertisements may have been
got published by the first respondent himself or through his
election agent or through some other persons with his
consent or with the consent of his election agent and in
that event the onus may have shifted to the returned
candidate to explain the source of the expenditure and in
the absence of any satisfactory explanation it may have been
possible to draw an inference that it was the money of the
returned candidate. Since no such evidence was led and no
proof was submitted in support of the alleged charge, the
question of shifting of onus on the returned candidate to
prove his non-liability did not arise. The High Court,
therefore, was not justified in saddling the returned
candidate with any expense other than Rs.1320/- in addition
to the expenses disclosed by him in the return of his
election expense.
Thus, on the settled principles extracted in an earlier
part of this judgment, we find that the election petitioners
have miserably failed to discharge the onus of proving
various charges levelled by them against the returned
candidate regarding the commission of corrupt practice under
Section 123 (6) of the Act. The High Court was, justified in
holding that the returned candidate had not committed any
corrupt practice as envisaged by Section 123 (6) of the Act
and in dismissing the election petition. However, the High
Court fell in error in holding that certain items of
expenditure totalling Rs.58,2220/- had been suppressed by
the returned candidate and deserved to be included in the
return of his election expense. Except to the extent of
Rs.1320/-, no other liability can be fastened on the
returned candidate in respect of the other items of the
alleged expenditure on publication of advertisements etc.
The election appeal consequently fails and is dismissed with
costs. The cross-objections to the extent indicated above
succeed and are allowed. The costs are assessed at
Rs.10000/-.
Before parting with the judgment we would, however,
like to express our disapproval of the manner in which
amendments of the election petition were allowed on
occasions more than once and how evidence was allowed to be
brought on the record against the pleadings and settled
legal principles.
Section 86(5) of the Act deals with the amendment of an
Election Petition. It lays down that the High Court may upon
such terms as to costs or otherwise, as it deems fit, allow
amendment in respect of particulars but there is a complete
prohibition against any amendment being allowed which may
have the effect of introducing either material facts not
already pleaded or of introducing particulars of a corrupt
practice not previously alleged in the petition. The first
part of Section 86(5) of the Act, therefore, is an enabling
provision while the second part creates a positive bar. Of
course, the power of amendment given in the Code of Civil
Procedure can be invoked by the High Court because Section
86 of the Act itself makes the procedure applicable, as
nearly as may be, to the trial of election petition, but it
must not be ignored that some of the Rules framed under the
Act itself over-ride certain provisions of the Civil
Procedure Code and thus, the general power of amendment
drawn from the Code of Civil Procedure must be construed in
the light of the provisions of the election law and applied
with such restraints as are inherent in an election
petition. It appears to us that the High Court did not
properly consider the provisions of the election law while
repeatedly allowing amendments of the election petition in
the present case. The High Court allowed an application
Ex.27 filed by the election petitioner for permission to
amend the petition on 28.11.91. Yet another application for
amendment of the election petition, Ex.44 was again allowed
by the High Court on 18.12.91. The petitioner filed still
another application, Ex.47A, to again amend the election
petition and the High Court allowed the same on 18.1.92.
Even after the pleadings were completed and the issues
framed on 21st of January 1992 and a part of evidence had
been led by the parties, the High Court allowed one more
application filed by the election petitioner No.1, Ex.701,
and permitted an amendment of the election petition,
apparently to bring the evidence in conformity with the
pleadings. In the first place, the High Court ought not to
have allowed evidence to be led by the election petitioners
which was beyond the pleadings of the parties for no amount
of evidence can cure a defect in the pleadings but it was
all the more improper for the trial court to have allowed
the pleadings to be amended so as to be brought in
conformity with the evidence already led in the case. To say
the least, it was not a desirable or a proper course to be
adopted in an election petition where, as pointed out by
this Court in Jagannath Vs. Jaswant Singh (1954 SCR 892),
the statutory requirements of the law of election must be
strictly observed. Of course, since evidence was allowed to
be led, though beyond the pleadings without any objections
from the opposite side, the court could have evaluated and
analysed the same to determine the worth of that evidence,
which in the facts and circumstances of the case came under
a cloud but to allow the amendment of the pleadings with a
view to confer a `legal status’ on the evidence already led
was to say the least improper. The reasons given by the
learned trial judge to allow the election petition to be
amended repeatedly ignores the sanctity which is attached to
the pleadings and the affidavit filed in support of an
election petition, which under law is required to be filed
within a prescribed time and those reasons do not impress
us. We need say no more on this aspect of the case.