{"id":153620,"date":"1980-09-05T00:00:00","date_gmt":"1980-09-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-c-zeliang-vs-aju-newmai-2-ors-on-5-september-1980"},"modified":"2017-12-12T12:48:14","modified_gmt":"2017-12-12T07:18:14","slug":"n-c-zeliang-vs-aju-newmai-2-ors-on-5-september-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-c-zeliang-vs-aju-newmai-2-ors-on-5-september-1980","title":{"rendered":"N.C. Zeliang vs Aju Newmai & 2 Ors on 5 September, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
N.C. Zeliang vs Aju Newmai & 2 Ors on 5 September, 1980<\/div>\n
Equivalent citations: 1981 AIR, 8\t\t 1981 SCR (1) 631<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nN.C. ZELIANG\n\n\tVs.\n\nRESPONDENT:\nAJU NEWMAI & 2 ORS.\n\nDATE OF JUDGMENT05\/09\/1980\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nCHANDRACHUD, Y.V. ((CJ)\nKOSHAL, A.D.\n\nCITATION:\n 1981 AIR    8\t\t  1981 SCR  (1) 631\n\n\nACT:\n     Representation of\tthe People  Act 1951-Section 123(6)-\nScope of-Preponderance\tof  probabilities-If  sufficient  to\nprove allegation of corrupt practice.\n\n\n\nHEADNOTE:\n     In the  elections to  the State  Assembly in  1977\t the\nappellant was declared elected. The election petitioner, who\nwas one\t of the defeated candidates, alleged in his petition\nthat the  appellant had filed a false return of the expenses\nand  thereby   committed   corrupt   practice\twithin\t the\ncontemplation of section 123(6) of the Representation of the\nPeople Act,  1951. Accepting  the allegation  the High Court\nset aside his election.\n     Allowing the appeal.\n^\n     HELD: (1)\tThe High  Court has  not made any attempt to\ndetermine  whether   there  was\t any  legal  and  acceptable\nevidence to  prove  corrupt  practice  alleged\tagainst\t the\nappellant. It  is well\tsettled that  a charge under section\n123 of\tthe Act\t must be proved by clear and cogent evidence\nas a  charge for  a criminal  offence. It is not open to the\nCourt to  hold that  a charge  of corrupt practice is proved\nmerely on  a preponderance  of probabilities  but it must be\nsatisfied that\tthere is evidence to prove the charge beyond\na reasonable doubt. [635 B-D]\n     K.M. Mani\tv. P.J.\t Antony &  ors.<\/a>\t [1979]\t 1  SCR\t 701\nreferred to.\n     (i) In  the instant  case the petitioner himself had no\npersonal knowledge  as to  the\tactual\texpenses  in  hiring\ntaxies and  his source\tof information\twas  based  on\twhat\nothers said.  The evidence  led by  the petitioner falls far\nshort of the standards required by law. [636 D, 637E]\n     (ii) The  petitioner claimed that he maintained a diary\nof the\telectioneering. Yet  he did  not produce it in Court\nfrom which  a natural  presumption arises  that\t if  he\t had\nproduced the diary it would have gone against his case. [637\nG-H]\n     (2) Corrupt practice being in the nature of a fraud, it\nis not permissible to plead one kind of fraud or one kind of\ncorrupt practice and prove another though they may be inter-\nconnected.  The\t High  Court  has  rightly  found  that\t the\npetitioner pleaded  that it was the appellant who had held a\nfeast at  which he  invited his\t voters and exhorted them to\nvote for  him. But the evidence shows that the appellant had\nnot held the feast but it was hosted by one of his agents at\nwhich the appellant was present and, therefore, it could not\nbe proved  that the  feast was\theld at\t the instance of the\nappellant. [638 G-639A]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1679 of
\n1979.\n<\/p>\n
     From the  Judgment and  Order dated  15-5-1979  of\t the
\nGauhati High Court in Election Petition No. 7\/78.\n<\/p>\n
     S.S. Ray,\tN.R. Chowdhary\tand Parijath  Sinha for\t the
\nAppellant. R.  Karaanjawala and\t P.H. Parekh  for Respondent
\nNo. 1.\n<\/p>\n
632<\/span><\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J.-This election appeal is directed against
\na judgment  dated May  15, 1979 of the Gauhati High Court by
\nwhich the High Court accepted the election petition filed by
\nthe petitioner\tAju Newmai and set aside the election of the
\nappellant, N.C.\t Zeliang who  had been declared elected from
\nthe No.\t 6 Tening  Assembly Constituency  of  the  State  of
\nNagaland. For  short, the  respondent  No.  1,\tnamely,\t the
\nelection petitioner  in the High Court, shall be hereinafter
\nreferred to  as the  ‘Petitioner’ and  N.C. Zeliang, who had
\nwon the election, as the ‘appellant’.\n<\/p>\n
     The elections  were held  in the  year  1977  and\twere
\ncontested by  the petitioner,  the appellant and others. The
\nappellant contested  the election  as a\t Congress  candidate
\nwith the  symbol of  ‘cow and a calf’ whereas the petitioner
\ncontested on  the ticket  of  the  United  Democratic  Front
\n(U.D.F.)  whose\t  election  symbol  was\t ‘Cock’.  The  other
\ncandidates in  the field  were Jangkhosei  and Paokholun. We
\nare,  however,\tnot  concerned\twith  these  candidates.  It
\nappears that  the appellant polled 2224 votes as against the
\n2207 votes  polled by  the petitioner  and thus defeated the
\npetitioner by  a margin\t of 17 votes, the total votes in the
\nconstituency being  only 5,000. The poll took place on 8-11-
\n1977 and  the last  date for filing the nomination paper was
\n24-10-1977.\n<\/p>\n
     Being aggrieved  by the declaration of the appellant as
\nhaving been  duly elected  to the  Assembly, the  petitioner
\nfiled an  election petition  on 5-1-1978  in the  High Court
\nchallenging the election of the appellant on several grounds
\nincluding the allegation that he had filed a false return of
\nthe expenses  and had incurred much more expenses than fixed
\nby the\tauthorities concerned. The petitioner also alleged a
\nnumber of  other corrupt  practices which had been committed
\nby the appellant in the course of the election.\n<\/p>\n
     The appellant in his written statement strongly refuted
\nall the\t allegations made  by the  petitioner and  submitted
\nthat he\t had committed\tno corrupt  practice  and  that\t the
\nreturn which  he had  filed to the District Election Officer
\nwas absolutely correct and the expenses incurred by him were
\nwell below the permissible limit.\n<\/p>\n
     A large  number of issues were framed by the High Court
\nbut the\t High Court  appears to\t have accepted\tthe election
\npetition only on one issue, viz., issue No. 4, which related
\nto the\tcorrupt practice as contemplated by s. 123(6) of the
\nRepresentation of the People Act (hereinafter referred to as
\nthe  ‘Act’)  in\t incurring  the\t expenditure  exceeding\t the
\npermissible limit which amounted to a contravention of
\n633<\/span>
\nS. 77  of  the\tAct.  The  other  allegations  made  by\t the
\npetitioner were held by the High Court as not proved.\n<\/p>\n
     The learned counsel for the petitioner, who argued this
\ncase with  tenacity and ingenuity, was unable to support the
\nallegation made\t by the petitioner on any other issue framed
\nby the\tcourt except  issues No.  4 and\t 5. As\tthe  pivotal
\ncontroversy in\tthe instant  case rests\t on issue  No. 4, we
\nwould like  to take up the finding of the High Court on this
\nissue first.  Issue No.\t 4, as framed by the High Court, may
\nbe extracted as follows:-\n<\/p>\n
\t  “Whether the\tRespondent No.\t1 committed  corrupt
\n     practice,\tas   defined  under   sec.  123(6)   of\t the
\n     Representation of the People Act, 1951, by incurring or
\n     authorising  expenditure\texceeding  the\t permissible
\n     amount, in contravention of section 77 of the said Act,
\n     as alleged\t in paragraphs\t10, 11\tGround No.  (II) and
\n     Schedule B to the Petition?\n<\/p><\/blockquote>\n
\t  If so,  is the election of Respondent No. 1 liable
\n     to be set aside?”\n<\/p><\/blockquote>\n
This issue  was based on the plea taken by the petitioner in
\nparagraph 10  and ground  No. II  as also  Schedule B to the
\npetition and it may be necessary to traverse the allegations
\nmade by\t the petitioner\t regarding this\t issue. Paragraph 10
\nappears to  be an  omnibus statement which contains a number
\nof grounds  including the question of incurring unauthorised
\nexpenditure with  which\t alone\twe  are\t concerned  for\t the
\npresent, and may be extracted thus:-\n<\/p>\n
\t  “That the petitioner also states and contends that
\n     the election  of Respondent  No.  1  is  liable  to  be
\n     declared  void   as  he   committed   several   corrupt
\n     practices, namely\t(1) the\t corrupt practice as defined
\n     in sub-section  (6) of  section 123 of the Act, that is
\n     to\t say,\tincurring  or\tauthorising  expenditure  in
\n     contravention of section 77 of the Act; (2) the corrupt
\n     practice of  bribery as  defined in  sub-section (1) of
\n     section 123  of the  Act; (3)  the corrupt\t practice of
\n     hiring or procuring vehicles for the free conveyance of
\n     electors to  and from  certain polling  stations within
\n     the said  Assembly Constituency  as defined  in Section
\n     123(5) of\tthe Act.  The material facts and particulars
\n     of these corrupt practices are set out hereunder.”<\/p><\/blockquote>\n
     Ground No.\t II of\tthe petition  may  be  extracted  as
\nfollows:\n<\/p>\n
\t  “For that  the  Respondent  No.  1  committed\t the
\n     corrupt practice  as set  out  in\tsub-section  (6)  of
\n     section 123  of the  Act by  incurring  or\t authorising
\n     expenditure in contravention of section 77 of the Act.”<\/p><\/blockquote>\n
634<\/span><\/p>\n
     The material  particulars relating\t to  the  allegation
\nmade in\t Ground No.  II are  contained in  Schedule B to the
\npetition, the  relevant portion\t of which  may be  extracted
\nthus:-\n<\/p>\n
\t  “B-1. In  his return\tof  election  expenses,\t the
\n     Respondent No.  1 returned the total expenditure of Rs.
\n     1323.69.\n<\/p><\/blockquote>\n
\t       …….\t    …….\t …….\n<\/p><\/blockquote>\n
\t  B-3. Expenses\t incurred in  connection  with\thire
\n     charges of\t vehicles and  petrol and mobil oil consumed
\n     on\t account   of  these   vehicles\t and  in  purchasing
\n     accessories:-\n<\/p><\/blockquote>\n
\t       (i) The\trespondent hired  a jeep bearing No.
\n\t  NLK 4308  from Wilubo\t of Dimapur  and  paid\thire
\n\t  charge of  Rs. 3000  including  the  cost  of\t the
\n\t  driver to the said owner.\n<\/p><\/blockquote>\n
\t       (ii)  On\t  3-11-1977  the  Respondent  No.  1<\/span><\/p>\n
\t  purchased two\t tyres valued  at Rs.  720 from\t the
\n\t  firm Motilal\tDungarmall of  Dimapur and one exide
\n\t  battery from\tthe firm  Bakliwal and\tGangwals  of
\n\t  Dimapur at  the cost of Rs. 540 for the purpose of
\n\t  the aforesaid vehicle No. NLK 4308.\n<\/p><\/blockquote>\n
\t       (iii) On\t 28-10-1977 the Respondent purchased
\n\t  petrol worth\tRs. 240 for the vehicle No. NLK 6284
\n\t  used by  him for  the purpose of election from the
\n\t  firm\tof   Pulchand  Trilokchand,   Dimapur  under
\n\t  voucher No. 270800.”\n<\/p><\/blockquote>\n
We have\t already mentioned  that all the allegations made by
\nthe petitioner were stoutly denied by the appellant.\n<\/p>\n
     Thus, from\t the allegations  made by  the petitioner so
\nfar as\tissue No. 4 is concerned, the gravamen of the charge
\nagainst the  appellant was  that while\the had shown a total
\nexpenditure of\tRs. 1323.69  in his  return filed before the
\nDistrict Election  Officer yet\the had\tincurred expenditure
\nfar exceeding  the same Paragraphs B-3(i), (ii) and (iii) of
\nSchedule B  to the  petition, extracted above. show that the
\nappellant had  incurred a  total expenditure  of  Rs.  3960.
\nAccording to  the petitioner these expenses were incurred on
\nthe  hiring   of  jeeps\t  and  purchasing  tyres  and  other
\naccessories for jeep NLK 4308 which was used for the purpose
\nof election  campaign. The permissible limit being Rs. 2,500
\nonly, the expenditure incurred, according to the petitioner,
\nexceeded the  limit by\tRs. 1460. It was also alleged by the
\npetitioner that jeep No. NLK 4308 was hired by the appellant
\nfrom one  Wilubo of  Dimapur who  was paid hiring charges of
\nRs. 3,000. We might state here that according to the finding
\nof the\tHigh Court,  the petitioner  himself admitted in his
\nevidence that the expenditure incurred
\n635<\/span>
\nfor the\t purchase of  tyres and battery (Rs. 720 and Rs. 540
\nrespectively) were  included in the amount of Rs. 3,000, the
\nbalance being  the hire\t charges. The petitioner, therefore,
\ncontended that,\t at any rate, the appellant had exceeded the
\nexpenses incurred  in the  election by\tat least  Rs. 500, a
\nfact  which,   according  to  him,  he\thad  proved  to\t the
\nsatisfaction of the court.\n<\/p>\n
     We have  gone through  the judgment  of the  High Court
\ncarefully and  what we\tfind is\t that the High Court has not
\nmade any  attempt to  determine whether\t there was any legal
\nand  acceptable\t evidence  to  prove  the  corrupt  practice
\nalleged against\t the appellant.\t It is now well settled by a
\nlarge catena  of authorities  that a  charge under s. 123 of
\nthe Act\t must be  proved by  clear and\tcogent evidence as a
\ncharge for  a criminal\toffence. It is not open to the court
\nto hold\t that a\t charge of corrupt practice is proved merely
\non a preponderance of probabilities but it must be satisfied
\nthat  there  is\t evidence  to  prove  the  charge  beyond  a
\nreasonable doubt.  The electoral  process in this country is
\nan extremely  expensive one and by declaring the election of
\na candidate null and void, the entire process, so far as the
\ncandidate is  concerned is  set at  naught resulting  in re-
\nelection. Such\ta course  should be  adopted only  when\t the
\nallegation of  corrupt practice\t is proved  conclusively. In
\nK.M. Mani  v.  P.J.  Antony  &\tOrs.<\/a>(1),  this\tCourt  while
\nreferring to a large number of cases observed as follows:-\n<\/p>\n
\t  “An  allegation  regarding  the  commission  of  a
\n     corrupt practice  at an  election\tis  a  very  serious
\n     matter not only for the candidate but for the public at
\n     large as  it relates  to the  purity of  the  electoral
\n     process.\n<\/p><\/blockquote>\n
\t       …..\t      ….\t  ….\n<\/p><\/blockquote>\n
\t  In taking  that view the trial court lost sight of
\n     the  requirement  that  the  allegation  regarding\t the
\n     commission of  a corrupt practice is in the nature of a
\n     quasi criminal  proceeding which  has to be established
\n     beyond reasonable doubt and not merely by preponderance
\n     of probabilities.\n<\/p><\/blockquote>\n
\t       ……\t     …..\t  ….\n<\/p><\/blockquote>\n
\t  In Mohan  Singh’s case  (AIR 1964  SC 1366) it has
\n     been held\tthat the onus of proving the commission of a
\n     corrupt practice  is not  discharged on  proof of\tmere
\n     preponderance of probability as in a civil suit, and it
\n     must be established beyond reasonable doubt by evidence
\n     which is clear and unambiguous.\n<\/p><\/blockquote>\n
636<\/span><\/p>\n
\t  In Balakrishna (1969) (3 SCR 603) it has been held
\n     that while\t consent may be inferred from circumstantial
\n     evidence, the  circumstances must\tpoint unerringly  to
\n     the conclusion  and must admit of no other explanation,
\n     for a  corrupt practice  must be proved in the same way
\n     as a  criminal charge………  The election petitioner
\n     must therefore  exclude every hypothesis except that of
\n     guilt on  the part\t of the\t returned candidate  or\t his
\n     election agent, and the trial court erred in basing its
\n     finding on a mere probability.”\n<\/p><\/blockquote>\n
It is  not necessary  to multiply  authorities on this point
\nbecause the law has been fully crystallised on the subject.\n<\/p>\n
     The petitioner  who was  examined as  PW 1\t has clearly
\nstated in  his evidence\t that he was told by Wilubo that the
\nappellant had  hired Jeep  No. NLK  4308 from him for a lump
\nsum of\tRs. 3,000  which were  the hire charges. The witness
\nfurther admitted  that Wilubo  was his\trelation  being\t the
\nbrother of  his elder  brother’s wife  and  was\t staying  at
\nDimapur.  Thus,\t the  petitioner  himself  had\tno  personal
\nknowledge as  to the actual hiring charges paid to Wilubo by
\nthe appellant and his source of information is based on what
\nhe heard from Wilubo. Wilubo, however, who was examined as a
\nwitness for  the appellant, has denied these allegations and
\nhas also denied having told the petitioner that his Jeep was
\nhired by the appellant, much less for a sum of Rs. 3,000.\n<\/p>\n
     Mr.  Karanjawala,\t appearing   for   the\t petitioner,
\nvehemently contended  that the\tmanner in  which Wilubo\t was
\nexamined by  the appellant  as his witness shows that he was
\nnot speaking  the truth.  It was  pointed out that, to begin
\nwith, Wilubo  was cited\t as a witness for the petitioner and
\nsummons were  issued to\t Wilubo but  he evaded\tservice\t and
\nultimately a  warrant had  to be issued when the counsel for
\nthe appellant  informed\t the  court  that  Wilubo  would  be
\nexamined as  a witness\tfor the appellant. Our attention was
\nalso drawn  to the  cash memos.\t which show  that the  tyres
\ncosting Rs.  720 and  battery worth  Rs. 540 were purchased.
\nEven accepting\tthis part  of the  case, all  that has\tbeen
\nshown is that a sum of Rs. 1260 was spent so far as jeep No.
\nNLK 4308  was concerned.  But this  fact by  itself was\t not
\nsufficient to  prove the  allegations made by the petitioner
\nagainst the  appellant. It  had further\t to be\tshown by the
\npetitioner to  the satisfaction of the court that Wilubo had
\ncharged a  hiring charge of Rs. 3,000 or nearabout that from
\nthe appellant  and that\t he himself  had purchased the tyres
\nand battery. Wilubo had denied this allegation, the evidence
\nof the\tpetitioner on  this point  is  purely  hearsay\tand,
\ntherefore, inadmissible in evidence. It was, however, argued
\nby Mr. Karanjawala
\n637<\/span>
\nthat from  the evidence\t of the\t witnesses produced  by\t the
\npetitioner, it\twould appear  that Jeep\t No. 4308 was freely
\nused for  a large  number of  days from\t which it  could  be
\nsafely presumed that the charges for the jeep must have been
\nin the\tregion of Rs. 3,000. In the first place, there is no
\nclear evidence\tof any\tof the\twitnesses  examined  by\t the
\npetitioner to  show the\t exact period for which the jeep was
\nused or\t the distance  which it\t had traversed\tnor is there
\nanything to show that such an amount as Rs. 3,000 could have
\nbeen paid  as hiring charges to Wilubo by the appellant. The
\nevidence merely\t shows that  the jeep was used either on the
\nelection day,  or a day after or a day before that. There is
\nno evidence  to show  what were the customary hiring charges
\nfor jeeps  or cars  in the localities where the jeep is said
\nto  have  been\tused  by  the  appellant.  It  is,  however,
\nsuggested by  Mr. Karanjawala that as Wilubo appears to be a
\nman of\tsmall means,  it must  be presumed that he must have
\nmade a lot of money by hiring out the jeep to the appellant.
\nThis is\t also a\t pure conjecture  and cannot be pressed into
\nservice for  unseating the  appellant which can be done only
\nif the\tevidence, even\tif  it\tconsists  of  circumstantial
\nevidence must  be clear\t and conclusive.  We have been taken
\nthrough the  evidence of  PWs 1, 5, 6, 13 and 20 but none of
\nthese witnesses\t gives us any idea of the prevailing rate of
\nhire in\t the localities concerned which could have been paid
\nby the appellant to Wilubo for the jeep. The evidence led by
\nthe petitioner\tfalls far short of the standards required by
\nlaw.\n<\/p>\n
     Another important\tcircumstance that  militates against
\nthe case  of the  petitioner is\t that while  the  petitioner
\nadmits in his evidence that he used to maintain some sort of
\na diary\t of his electioneering yet he had not produced it on
\nthe plea  that he  did not  remember where  he had  kept the
\ndiary.\tIn   this  connection,\tthe  petitioner\t deposed  as
\nfollows:-\n<\/p>\n
\t  “I had  maintained some  sort of  a  diary  of  my
\n     electioneering. The  diary was of course not maintained
\n     regularly. I  do not remember where I kept the diary. I
\n     have not filed the same in Court.”<\/p><\/blockquote>\n
     It is,  therefore, manifest  that the  diary would have
\nbeen the  best evidence to show that as to how many days the
\njeep was  used or  for what  distance and as also the hiring
\ncharges paid  by the appellant to Wilubo. The petitioner has
\nwithheld the  diary and\t has not filed the same in the court
\nfrom which  a natural  presumption arises  that\t if  he\t had
\nproduced the diary it would have gone against his case. Even
\nPW 6  who, according  to the  petitioner, was an independent
\nwitness, has merely said that he knew that the appellant had
\nused a jeep but he does not
\n638<\/span>
\neither give the dates when the jeep was used or the distance
\nwhich it  had traversed.  He, however,\tfurther admits\tthat
\nalthough he  had seen the jeep he did not see the appellant,
\nZeliang in  it. This,  therefore, falsifies  his  allegation
\nthat the  jeep was  used by  the appellant.  The evidence of
\nother witnesses\t on this  point is  also not  helpful to the
\npetitioner and is even more vague than the evidence of PW 6.
\nIn fact,  there is  some evidence to show that the appellant
\nhad visited various places in his constituency even on foot.
\nIn the\tabsence of such evidence it was not open to the High
\nCourt to  accept the  speculation of the petitioner that the
\nappellant must\thave incurred  hiring charges  for the\tjeep
\nexceeding Rs. 2,000 or so.\n<\/p>\n
     The  appellant   has   denied   having   incurred\t any
\nexpenditure on\tthe purchase of tyres and battery but taking
\nthe case  of the petitioner at the highest and assuming that
\nan expenditure\tof Rs. 720 for the tyres and Rs. 540 for the
\nbattery was  incurred as  is proved  from  the\tcash  memos,
\nproduced by the petitioner, there is no reliable or credible
\nevidence to show that the appellant had himself met the cost
\nof these  articles and\tused them for his election campaign.
\nThus, the  expenses indicated above are not at all relatable
\nto the\tjeep in\t question. In these circumstances therefore,
\nwe are\tclearly of  the\t opinion  that\tthere  is  no  legal
\nevidence to  support the  corrupt practice  alleged  by\t the
\npetitioner in  that he\thad incurred  expenditure beyond Rs.
\n2,500 and  thus the  petitioner has  not been  able to prove
\nthat the  return of  expenses filed  by the appellant before
\nthe District Election Officer was wrong or inaccurate and in
\nexcess of  the permissible  limit. Hence, the finding of the
\nHigh Court on this point cannot be sustained.\n<\/p>\n
     Realising this  difficulty,  Mr.  Karanjawala  strongly
\npressed issue No. 5 framed by the High Court on the basis of
\none of\tthe allegations\t made by  the petitioner.  The\tHigh
\nCourt has,  however, clearly  held that the allegation which
\nformed the subject-matter of issue No. 5 has not been proved
\nat all\tby the\tpetitioner.  Mr.  Karanjawala  assailed\t the
\nfinding of  the High  Court on this point and submitted that
\nthis allegation was clearly proved by the petitioner. There,
\nhowever,  appears   to\tbe  an\tinsurmountable\tobstacle  in
\naccepting the  contention of  the counsel for the petitioner
\non this\t point. It  is well  settled that  an allegation  of
\ncorrupt practice must be clearly pleaded in the petition and
\nthe particulars\t given in  the\tschedule.  Corrupt  practice
\nbeing in  the nature  of a  fraud, it  is not permissible to
\nplead one  kind of fraud or one kind of corrupt practice and
\nprove another  though they  may be inter-connected. The High
\nCourt has  rightly found that as the petitioner pleaded that
\nit was\tthe appellant  himself who had held a feast, invited
\nhis voters  and exhorted  them to vote for him, the evidence
\nshows that  the appellant  had not held the feast at all but
\nit
\n639<\/span>
\nwas hosted  by one  of his agents in which the appellant was
\npresent and  therefore it  cannot be presumed that the feast
\nwas held  at the  instance of  the appellant. The High Court
\nheld that  the allegation  pleaded was\tnot  proved  by\t the
\nevidence which\tin fact\t was contrary  to the  pleadings and
\ntherefore no  notice of\t such a\t corrupt practice  could  be
\ntaken. With  due respect,  we  find  ourselves\tin  complete
\nagreement with\tthe reasons  given by the High Court on this
\naspect of the matter. Issue No. 5 may be extracted thus:-\n<\/p>\n
\t  “Whether  Respondent\t No.  1\t  committed  corrupt
\n     practice  of   bribery,  as   defined   under   section
\n     123(1)(a)(b) of  the Representation  of the People Act,
\n     1951 by  offering himself\tor by  his agents  with\t his
\n     consent,  gratification  by  way  of  entertaining\t the
\n     electors of  No. 6\t Tening Assembly Constituency of the
\n     Nagaland Legislative  Assembly with  feasts,  with\t the
\n     object, directly  or indirectly,  of inducing  them  to
\n     vote for the Respondent No. 1, as alleged in paragraphs
\n     10, 11 (Ground No. III) and Schedule C to the petition?
\n\t  If so,  is the election of Respondent No. 1 liable
\n     to be set aside?”<\/p><\/blockquote>\n
     In Schedule  C the\t particulars  given  show  that\t the
\nappellant gave a feast on 2-11-77 and on 31-10-77 and on 12-
\n11-77 to  the electorate  and purchased\t a pig\ton all these
\noccasions for hosting the voters. The evidence led, however,
\nshows that  no feast  was hosted by the appellant at all but
\nwas done  by some  other person\t who was his agent while the
\nappellant was  present. It  is, therefore, manifest that the
\nexact corrupt practice pleaded by the petitioner in Schedule
\nC was  not proved  but\twas  in\t direct\t variance  with\t the
\nevidence which\the led\ton this point. On this ground alone,
\ntherefore, the\tpetitioner would have to be put out of court
\nso far\tas issue  No. 5\t is concerned.\tNo other  point\t was
\npressed before us by the counsel for the parties.\n<\/p>\n
     For the  reasons given  above, we\tare  satisfied\tthat
\nthere is  no legal  evidence to\t prove the  corrupt practice
\nalleged against the appellant that he had exceeded the limit
\nof expenditure fixed in using the jeep, even if he had taken
\nit from\t Wilubo. Issue\tNo. 5  also was\t rightly held by the
\nHigh Court  not proved.\t In this  view of  the\tmatter,\t the
\nappeal is allowed. The order of the High Court setting aside
\nthe election  of the  appellant and  unseating him is hereby
\nquashed. In  the peculiar  circumstances of  the case, there
\nwill be no order as to costs.\n<\/p>\n
P.B.R.\t\t\t\t\t     Appeal allowed.\n640<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India N.C. Zeliang vs Aju Newmai & 2 Ors on 5 September, 1980 Equivalent citations: 1981 AIR, 8 1981 SCR (1) 631 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: N.C. ZELIANG Vs. RESPONDENT: AJU NEWMAI & 2 ORS. DATE OF JUDGMENT05\/09\/1980 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA CHANDRACHUD, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-153620","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nN.C. 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