PETITIONER:
N.C. ZELIANG
Vs.
RESPONDENT:
AJU NEWMAI & 2 ORS.
DATE OF JUDGMENT05/09/1980
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
CHANDRACHUD, Y.V. ((CJ)
KOSHAL, A.D.
CITATION:
1981 AIR 8 1981 SCR (1) 631
ACT:
Representation of the People Act 1951-Section 123(6)-
Scope of-Preponderance of probabilities-If sufficient to
prove allegation of corrupt practice.
HEADNOTE:
In the elections to the State Assembly in 1977 the
appellant was declared elected. The election petitioner, who
was one of the defeated candidates, alleged in his petition
that the appellant had filed a false return of the expenses
and thereby committed corrupt practice within the
contemplation of section 123(6) of the Representation of the
People Act, 1951. Accepting the allegation the High Court
set aside his election.
Allowing the appeal.
^
HELD: (1) The High Court has not made any attempt to
determine whether there was any legal and acceptable
evidence to prove corrupt practice alleged against the
appellant. It is well settled that a charge under section
123 of the Act must be proved by clear and cogent evidence
as a charge for a criminal offence. It is not open to the
Court to hold that a charge of corrupt practice is proved
merely on a preponderance of probabilities but it must be
satisfied that there is evidence to prove the charge beyond
a reasonable doubt. [635 B-D]
K.M. Mani v. P.J. Antony & ors. [1979] 1 SCR 701
referred to.
(i) In the instant case the petitioner himself had no
personal knowledge as to the actual expenses in hiring
taxies and his source of information was based on what
others said. The evidence led by the petitioner falls far
short of the standards required by law. [636 D, 637E]
(ii) The petitioner claimed that he maintained a diary
of the electioneering. Yet he did not produce it in Court
from which a natural presumption arises that if he had
produced the diary it would have gone against his case. [637
G-H]
(2) Corrupt practice being in the nature of a fraud, it
is not permissible to plead one kind of fraud or one kind of
corrupt practice and prove another though they may be inter-
connected. The High Court has rightly found that the
petitioner pleaded that it was the appellant who had held a
feast at which he invited his voters and exhorted them to
vote for him. But the evidence shows that the appellant had
not held the feast but it was hosted by one of his agents at
which the appellant was present and, therefore, it could not
be proved that the feast was held at the instance of the
appellant. [638 G-639A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1679 of
1979.
From the Judgment and Order dated 15-5-1979 of the
Gauhati High Court in Election Petition No. 7/78.
S.S. Ray, N.R. Chowdhary and Parijath Sinha for the
Appellant. R. Karaanjawala and P.H. Parekh for Respondent
No. 1.
632
The Judgment of the Court was delivered by
FAZAL ALI, J.-This election appeal is directed against
a judgment dated May 15, 1979 of the Gauhati High Court by
which the High Court accepted the election petition filed by
the petitioner Aju Newmai and set aside the election of the
appellant, N.C. Zeliang who had been declared elected from
the No. 6 Tening Assembly Constituency of the State of
Nagaland. For short, the respondent No. 1, namely, the
election petitioner in the High Court, shall be hereinafter
referred to as the ‘Petitioner’ and N.C. Zeliang, who had
won the election, as the ‘appellant’.
The elections were held in the year 1977 and were
contested by the petitioner, the appellant and others. The
appellant contested the election as a Congress candidate
with the symbol of ‘cow and a calf’ whereas the petitioner
contested on the ticket of the United Democratic Front
(U.D.F.) whose election symbol was ‘Cock’. The other
candidates in the field were Jangkhosei and Paokholun. We
are, however, not concerned with these candidates. It
appears that the appellant polled 2224 votes as against the
2207 votes polled by the petitioner and thus defeated the
petitioner by a margin of 17 votes, the total votes in the
constituency being only 5,000. The poll took place on 8-11-
1977 and the last date for filing the nomination paper was
24-10-1977.
Being aggrieved by the declaration of the appellant as
having been duly elected to the Assembly, the petitioner
filed an election petition on 5-1-1978 in the High Court
challenging the election of the appellant on several grounds
including the allegation that he had filed a false return of
the expenses and had incurred much more expenses than fixed
by the authorities concerned. The petitioner also alleged a
number of other corrupt practices which had been committed
by the appellant in the course of the election.
The appellant in his written statement strongly refuted
all the allegations made by the petitioner and submitted
that he had committed no corrupt practice and that the
return which he had filed to the District Election Officer
was absolutely correct and the expenses incurred by him were
well below the permissible limit.
A large number of issues were framed by the High Court
but the High Court appears to have accepted the election
petition only on one issue, viz., issue No. 4, which related
to the corrupt practice as contemplated by s. 123(6) of the
Representation of the People Act (hereinafter referred to as
the ‘Act’) in incurring the expenditure exceeding the
permissible limit which amounted to a contravention of
633
S. 77 of the Act. The other allegations made by the
petitioner were held by the High Court as not proved.
The learned counsel for the petitioner, who argued this
case with tenacity and ingenuity, was unable to support the
allegation made by the petitioner on any other issue framed
by the court except issues No. 4 and 5. As the pivotal
controversy in the instant case rests on issue No. 4, we
would like to take up the finding of the High Court on this
issue first. Issue No. 4, as framed by the High Court, may
be extracted as follows:-
“Whether the Respondent No. 1 committed corrupt
practice, as defined under sec. 123(6) of the
Representation of the People Act, 1951, by incurring or
authorising expenditure exceeding the permissible
amount, in contravention of section 77 of the said Act,
as alleged in paragraphs 10, 11 Ground No. (II) and
Schedule B to the Petition?
If so, is the election of Respondent No. 1 liable
to be set aside?”
This issue was based on the plea taken by the petitioner in
paragraph 10 and ground No. II as also Schedule B to the
petition and it may be necessary to traverse the allegations
made by the petitioner regarding this issue. Paragraph 10
appears to be an omnibus statement which contains a number
of grounds including the question of incurring unauthorised
expenditure with which alone we are concerned for the
present, and may be extracted thus:-
“That the petitioner also states and contends that
the election of Respondent No. 1 is liable to be
declared void as he committed several corrupt
practices, namely (1) the corrupt practice as defined
in sub-section (6) of section 123 of the Act, that is
to say, incurring or authorising expenditure in
contravention of section 77 of the Act; (2) the corrupt
practice of bribery as defined in sub-section (1) of
section 123 of the Act; (3) the corrupt practice of
hiring or procuring vehicles for the free conveyance of
electors to and from certain polling stations within
the said Assembly Constituency as defined in Section
123(5) of the Act. The material facts and particulars
of these corrupt practices are set out hereunder.”
Ground No. II of the petition may be extracted as
follows:
“For that the Respondent No. 1 committed the
corrupt practice as set out in sub-section (6) of
section 123 of the Act by incurring or authorising
expenditure in contravention of section 77 of the Act.”
634
The material particulars relating to the allegation
made in Ground No. II are contained in Schedule B to the
petition, the relevant portion of which may be extracted
thus:-
“B-1. In his return of election expenses, the
Respondent No. 1 returned the total expenditure of Rs.
1323.69.
……. ……. …….
B-3. Expenses incurred in connection with hire
charges of vehicles and petrol and mobil oil consumed
on account of these vehicles and in purchasing
accessories:-
(i) The respondent hired a jeep bearing No.
NLK 4308 from Wilubo of Dimapur and paid hire
charge of Rs. 3000 including the cost of the
driver to the said owner.
(ii) On 3-11-1977 the Respondent No. 1
purchased two tyres valued at Rs. 720 from the
firm Motilal Dungarmall of Dimapur and one exide
battery from the firm Bakliwal and Gangwals of
Dimapur at the cost of Rs. 540 for the purpose of
the aforesaid vehicle No. NLK 4308.
(iii) On 28-10-1977 the Respondent purchased
petrol worth Rs. 240 for the vehicle No. NLK 6284
used by him for the purpose of election from the
firm of Pulchand Trilokchand, Dimapur under
voucher No. 270800.”
We have already mentioned that all the allegations made by
the petitioner were stoutly denied by the appellant.
Thus, from the allegations made by the petitioner so
far as issue No. 4 is concerned, the gravamen of the charge
against the appellant was that while he had shown a total
expenditure of Rs. 1323.69 in his return filed before the
District Election Officer yet he had incurred expenditure
far exceeding the same Paragraphs B-3(i), (ii) and (iii) of
Schedule B to the petition, extracted above. show that the
appellant had incurred a total expenditure of Rs. 3960.
According to the petitioner these expenses were incurred on
the hiring of jeeps and purchasing tyres and other
accessories for jeep NLK 4308 which was used for the purpose
of election campaign. The permissible limit being Rs. 2,500
only, the expenditure incurred, according to the petitioner,
exceeded the limit by Rs. 1460. It was also alleged by the
petitioner that jeep No. NLK 4308 was hired by the appellant
from one Wilubo of Dimapur who was paid hiring charges of
Rs. 3,000. We might state here that according to the finding
of the High Court, the petitioner himself admitted in his
evidence that the expenditure incurred
635
for the purchase of tyres and battery (Rs. 720 and Rs. 540
respectively) were included in the amount of Rs. 3,000, the
balance being the hire charges. The petitioner, therefore,
contended that, at any rate, the appellant had exceeded the
expenses incurred in the election by at least Rs. 500, a
fact which, according to him, he had proved to the
satisfaction of the court.
We have gone through the judgment of the High Court
carefully and what we find is that the High Court has not
made any attempt to determine whether there was any legal
and acceptable evidence to prove the corrupt practice
alleged against the appellant. It is now well settled by a
large catena of authorities that a charge under s. 123 of
the Act must be proved by clear and cogent evidence as a
charge for a criminal offence. It is not open to the court
to hold that a charge of corrupt practice is proved merely
on a preponderance of probabilities but it must be satisfied
that there is evidence to prove the charge beyond a
reasonable doubt. The electoral process in this country is
an extremely expensive one and by declaring the election of
a candidate null and void, the entire process, so far as the
candidate is concerned is set at naught resulting in re-
election. Such a course should be adopted only when the
allegation of corrupt practice is proved conclusively. In
K.M. Mani v. P.J. Antony & Ors.(1), this Court while
referring to a large number of cases observed as follows:-
“An allegation regarding the commission of a
corrupt practice at an election is a very serious
matter not only for the candidate but for the public at
large as it relates to the purity of the electoral
process.
….. …. ….
In taking that view the trial court lost sight of
the requirement that the allegation regarding the
commission of a corrupt practice is in the nature of a
quasi criminal proceeding which has to be established
beyond reasonable doubt and not merely by preponderance
of probabilities.
…… ….. ….
In Mohan Singh’s case (AIR 1964 SC 1366) it has
been held that the onus of proving the commission of a
corrupt practice is not discharged on proof of mere
preponderance of probability as in a civil suit, and it
must be established beyond reasonable doubt by evidence
which is clear and unambiguous.
636
In Balakrishna (1969) (3 SCR 603) it has been held
that while consent may be inferred from circumstantial
evidence, the circumstances must point unerringly to
the conclusion and must admit of no other explanation,
for a corrupt practice must be proved in the same way
as a criminal charge……… The election petitioner
must therefore exclude every hypothesis except that of
guilt on the part of the returned candidate or his
election agent, and the trial court erred in basing its
finding on a mere probability.”
It is not necessary to multiply authorities on this point
because the law has been fully crystallised on the subject.
The petitioner who was examined as PW 1 has clearly
stated in his evidence that he was told by Wilubo that the
appellant had hired Jeep No. NLK 4308 from him for a lump
sum of Rs. 3,000 which were the hire charges. The witness
further admitted that Wilubo was his relation being the
brother of his elder brother’s wife and was staying at
Dimapur. Thus, the petitioner himself had no personal
knowledge as to the actual hiring charges paid to Wilubo by
the appellant and his source of information is based on what
he heard from Wilubo. Wilubo, however, who was examined as a
witness for the appellant, has denied these allegations and
has also denied having told the petitioner that his Jeep was
hired by the appellant, much less for a sum of Rs. 3,000.
Mr. Karanjawala, appearing for the petitioner,
vehemently contended that the manner in which Wilubo was
examined by the appellant as his witness shows that he was
not speaking the truth. It was pointed out that, to begin
with, Wilubo was cited as a witness for the petitioner and
summons were issued to Wilubo but he evaded service and
ultimately a warrant had to be issued when the counsel for
the appellant informed the court that Wilubo would be
examined as a witness for the appellant. Our attention was
also drawn to the cash memos. which show that the tyres
costing Rs. 720 and battery worth Rs. 540 were purchased.
Even accepting this part of the case, all that has been
shown is that a sum of Rs. 1260 was spent so far as jeep No.
NLK 4308 was concerned. But this fact by itself was not
sufficient to prove the allegations made by the petitioner
against the appellant. It had further to be shown by the
petitioner to the satisfaction of the court that Wilubo had
charged a hiring charge of Rs. 3,000 or nearabout that from
the appellant and that he himself had purchased the tyres
and battery. Wilubo had denied this allegation, the evidence
of the petitioner on this point is purely hearsay and,
therefore, inadmissible in evidence. It was, however, argued
by Mr. Karanjawala
637
that from the evidence of the witnesses produced by the
petitioner, it would appear that Jeep No. 4308 was freely
used for a large number of days from which it could be
safely presumed that the charges for the jeep must have been
in the region of Rs. 3,000. In the first place, there is no
clear evidence of any of the witnesses examined by the
petitioner to show the exact period for which the jeep was
used or the distance which it had traversed nor is there
anything to show that such an amount as Rs. 3,000 could have
been paid as hiring charges to Wilubo by the appellant. The
evidence merely shows that the jeep was used either on the
election day, or a day after or a day before that. There is
no evidence to show what were the customary hiring charges
for jeeps or cars in the localities where the jeep is said
to have been used by the appellant. It is, however,
suggested by Mr. Karanjawala that as Wilubo appears to be a
man of small means, it must be presumed that he must have
made a lot of money by hiring out the jeep to the appellant.
This is also a pure conjecture and cannot be pressed into
service for unseating the appellant which can be done only
if the evidence, even if it consists of circumstantial
evidence must be clear and conclusive. We have been taken
through the evidence of PWs 1, 5, 6, 13 and 20 but none of
these witnesses gives us any idea of the prevailing rate of
hire in the localities concerned which could have been paid
by the appellant to Wilubo for the jeep. The evidence led by
the petitioner falls far short of the standards required by
law.
Another important circumstance that militates against
the case of the petitioner is that while the petitioner
admits in his evidence that he used to maintain some sort of
a diary of his electioneering yet he had not produced it on
the plea that he did not remember where he had kept the
diary. In this connection, the petitioner deposed as
follows:-
“I had maintained some sort of a diary of my
electioneering. The diary was of course not maintained
regularly. I do not remember where I kept the diary. I
have not filed the same in Court.”
It is, therefore, manifest that the diary would have
been the best evidence to show that as to how many days the
jeep was used or for what distance and as also the hiring
charges paid by the appellant to Wilubo. The petitioner has
withheld the diary and has not filed the same in the court
from which a natural presumption arises that if he had
produced the diary it would have gone against his case. Even
PW 6 who, according to the petitioner, was an independent
witness, has merely said that he knew that the appellant had
used a jeep but he does not
638
either give the dates when the jeep was used or the distance
which it had traversed. He, however, further admits that
although he had seen the jeep he did not see the appellant,
Zeliang in it. This, therefore, falsifies his allegation
that the jeep was used by the appellant. The evidence of
other witnesses on this point is also not helpful to the
petitioner and is even more vague than the evidence of PW 6.
In fact, there is some evidence to show that the appellant
had visited various places in his constituency even on foot.
In the absence of such evidence it was not open to the High
Court to accept the speculation of the petitioner that the
appellant must have incurred hiring charges for the jeep
exceeding Rs. 2,000 or so.
The appellant has denied having incurred any
expenditure on the purchase of tyres and battery but taking
the case of the petitioner at the highest and assuming that
an expenditure of Rs. 720 for the tyres and Rs. 540 for the
battery was incurred as is proved from the cash memos,
produced by the petitioner, there is no reliable or credible
evidence to show that the appellant had himself met the cost
of these articles and used them for his election campaign.
Thus, the expenses indicated above are not at all relatable
to the jeep in question. In these circumstances therefore,
we are clearly of the opinion that there is no legal
evidence to support the corrupt practice alleged by the
petitioner in that he had incurred expenditure beyond Rs.
2,500 and thus the petitioner has not been able to prove
that the return of expenses filed by the appellant before
the District Election Officer was wrong or inaccurate and in
excess of the permissible limit. Hence, the finding of the
High Court on this point cannot be sustained.
Realising this difficulty, Mr. Karanjawala strongly
pressed issue No. 5 framed by the High Court on the basis of
one of the allegations made by the petitioner. The High
Court has, however, clearly held that the allegation which
formed the subject-matter of issue No. 5 has not been proved
at all by the petitioner. Mr. Karanjawala assailed the
finding of the High Court on this point and submitted that
this allegation was clearly proved by the petitioner. There,
however, appears to be an insurmountable obstacle in
accepting the contention of the counsel for the petitioner
on this point. It is well settled that an allegation of
corrupt practice must be clearly pleaded in the petition and
the particulars given in the schedule. Corrupt practice
being in the nature of a fraud, it is not permissible to
plead one kind of fraud or one kind of corrupt practice and
prove another though they may be inter-connected. The High
Court has rightly found that as the petitioner pleaded that
it was the appellant himself who had held a feast, invited
his voters and exhorted them to vote for him, the evidence
shows that the appellant had not held the feast at all but
it
639
was hosted by one of his agents in which the appellant was
present and therefore it cannot be presumed that the feast
was held at the instance of the appellant. The High Court
held that the allegation pleaded was not proved by the
evidence which in fact was contrary to the pleadings and
therefore no notice of such a corrupt practice could be
taken. With due respect, we find ourselves in complete
agreement with the reasons given by the High Court on this
aspect of the matter. Issue No. 5 may be extracted thus:-
“Whether Respondent No. 1 committed corrupt
practice of bribery, as defined under section
123(1)(a)(b) of the Representation of the People Act,
1951 by offering himself or by his agents with his
consent, gratification by way of entertaining the
electors of No. 6 Tening Assembly Constituency of the
Nagaland Legislative Assembly with feasts, with the
object, directly or indirectly, of inducing them to
vote for the Respondent No. 1, as alleged in paragraphs
10, 11 (Ground No. III) and Schedule C to the petition?
If so, is the election of Respondent No. 1 liable
to be set aside?”
In Schedule C the particulars given show that the
appellant gave a feast on 2-11-77 and on 31-10-77 and on 12-
11-77 to the electorate and purchased a pig on all these
occasions for hosting the voters. The evidence led, however,
shows that no feast was hosted by the appellant at all but
was done by some other person who was his agent while the
appellant was present. It is, therefore, manifest that the
exact corrupt practice pleaded by the petitioner in Schedule
C was not proved but was in direct variance with the
evidence which he led on this point. On this ground alone,
therefore, the petitioner would have to be put out of court
so far as issue No. 5 is concerned. No other point was
pressed before us by the counsel for the parties.
For the reasons given above, we are satisfied that
there is no legal evidence to prove the corrupt practice
alleged against the appellant that he had exceeded the limit
of expenditure fixed in using the jeep, even if he had taken
it from Wilubo. Issue No. 5 also was rightly held by the
High Court not proved. In this view of the matter, the
appeal is allowed. The order of the High Court setting aside
the election of the appellant and unseating him is hereby
quashed. In the peculiar circumstances of the case, there
will be no order as to costs.
P.B.R. Appeal allowed.
640
