{"id":271875,"date":"1995-07-18T00:00:00","date_gmt":"1995-07-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gajanan-krishnaji-bapat-anr-vs-dattaji-raghobaji-meghe-ors-on-18-july-1995"},"modified":"2016-05-02T03:05:00","modified_gmt":"2016-05-01T21:35:00","slug":"gajanan-krishnaji-bapat-anr-vs-dattaji-raghobaji-meghe-ors-on-18-july-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gajanan-krishnaji-bapat-anr-vs-dattaji-raghobaji-meghe-ors-on-18-july-1995","title":{"rendered":"Gajanan Krishnaji Bapat & Anr vs Dattaji Raghobaji Meghe & Ors on 18 July, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gajanan Krishnaji Bapat & Anr vs Dattaji Raghobaji Meghe & Ors on 18 July, 1995<\/div>\n
Equivalent citations: 1995 AIR 2284, 1995 SCC (5) 347<\/div>\n
Author: A Anand<\/div>\n
Bench: Anand, A.S. (J)<\/div>\n
           PETITIONER:\nGAJANAN KRISHNAJI BAPAT & ANR.\n\n\tVs.\n\nRESPONDENT:\nDATTAJI RAGHOBAJI MEGHE & ORS.\n\nDATE OF JUDGMENT18\/07\/1995\n\nBENCH:\nANAND, A.S. (J)\nBENCH:\nANAND, A.S. (J)\nMUKHERJEE M.K. (J)\n\nCITATION:\n 1995 AIR 2284\t\t  1995 SCC  (5) 347\n JT 1995 (5)   410\t  1995 SCALE  (4)469\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t\tJ U D G E M E N T
\nDR. ANAND. J.\n<\/p>\n
     This appeal  under Section\t 116-A<\/a> of the Representation
\nof People Act 1951  (hereinafter referred to as the Act). by
\ntwo electors is directed against the judgment and order of a
\nlearned Single\tJudge of  the Nagpur Bench of the High Court
\nof Judicature  at Bombay  dismissing the  election petition.
\nThe  returned  candidate  has  also  filed  cross-objections
\nchallenging those findings which have gone against him. Both
\nshall be disposed of by this common judgment.\n<\/p>\n
     The appellants filed an election petition under Section
\n80<\/a> of  the Act\tchallenging the election of respondent No.1,
\nDattaji Raghobaji  Meghe, the  returned\t candidate  from  23
\nNagpur Parliamentary  Constituency in the elections held for
\nthe Xth\t Lok Sabha  and also  sought a\tdeclaration  to\t the
\neffect\tthat  respondent  No.2\tShri  Banwarilal  Bhagwandas
\nPurohit be  declared as\t the duly elected candidate from the
\nsaid Constituency  after setting  aside the  election of the
\nreturned  candidate.   The  challenge  to  the\telection  of
\nrespondent No.1\t was mainly  based  on\tthe  allegations  of
\ncommission of  various corrupt\tpractices by  him and\/or his
\nelection agent detailed in the petition.\n<\/p>\n
     Appellant No.1  was  at  the  relevant  time  the\tVice
\nPresident of Bhartiya Janta Party (Nagpur City) Nagpur while
\nappellant No.2\twas a  worker of  the Bhartiya\tJanta Party.
\nRespondent No.2,  Shri Banwarilal  Bhagwandas  Purohit,\t the
\ndefeated candidate  had been sponsored as a candidate by the
\nBhartiya Janta\tParty while  respondent No.1 Datta Raghobaji
\nMeghe,\tthe   returned\tcandidate,  had\t been  sponsored  by
\nCongress  (I).\tBesides\t respondents  1\t and  2,  the  other
\ncandidates, who\t had contested\tthe  election  and  had\t not
\nwithdrawn their\t candidatures from  the\t contest,  numbering
\nmore than  forty two  were also joined as respondents to the
\nelection petition.\n<\/p>\n
     The main  case of\tthe appellants\tprojected before the
\nHigh Court  and canvassed  before us  against  the  returned
\ncandidate was that the expenditure incurred or authorised by
\nrespondent No.1\t or his\t election agent\t was much  more than
\nwhat had  been disclosed by him in the return of expenditure
\nlodged under  Section  78<\/a>  of  the  Act\t with  the  District
\nElection officer  and that  huge expenditure incurred by him
\nin connection  with his election had been suppressed. It was
\nfurther alleged\t that though  the  expenditure\tincurred  in
\nconnection with the election of respondent No.1 was shown to
\nhave been  incurred  by\t the  political\t party,\t some  other
\nsympathetic   associations,    organisations,\tindividuals,
\nfriends and  well-wishers, the\tsaid expenditure in fact had
\nbeen incurred  and\/or authorised  by respondent\t No.1 and\/or
\nhis  election\tagent  and   the  amount   spent  by   those
\norganisations had  been\t provided  out\tof  the\t funds\tmade
\navailable by respondent No.1 to those parties for making the
\npayment and their names were given only to conceal the truth
\nof the\ttransactions so\t as to\tescape from  the mischief of
\nSection 123<\/a>  (6) of the Act. It was pleaded that some of the
\norganisations  under  whose  names  the\t advertisements\t had
\nappeared, were in fact non-existent and that the individuals
\nwho were  shown ostensibly to have incurred some expenditure
\nfor  furtherance   of  the  prospects  of  the\telection  of
\nrespondent No.1, had actually no funds of their own to spend
\nand respondent\tNo.1 had placed his own funds in their hands
\nto meet\t the expenditure.  According to\t the appellants, the
\nexpenditure incurred by respondent No.1 was far in excess of
\nthe limit prescribed by Section 77<\/a> of the Act read with Rule
\n90 of  the Conduct  of Election\t Rules 1961 (hereinafter the
\nRules’) and  the return\t of  election  expenditure  did\t not
\nreflect the  correct state of affairs. Since respondent No.1
\nhad exceeded  the prescribed limit of expense, he was guilty
\nof committing  the corrupt practice under Section 123<\/a> (6) of
\nthe Act\t and  his  election  was,  therfore,  liable  to  be
\ndeclared void  and respondent  No.1  also  disqualified\t for
\ncommitting the corrupt practice.\n<\/p>\n
     Respondent No.1  before filing  his  written  statement
\nraised a  preliminary objection, through Ex.16 and Ex.17, to
\nthe effect  that the  allegations made\tin the petition were
\nvague and  that material  facts and particulars had not been
\nsupplied and  as such  the vague pleadings were liable to be
\nstruck off  and the election petition rejected under Section
\n81(3)<\/a> read  with Section  86<\/a>  of  the  Act.  On\t 29.10.1991,
\nhowever, Ex.16\twas rejected  while  application  Ex.17\t was
\nallowed to  the extent\tthat the  allegations  made  in\t the
\npetition regarding  the commission of corrupt practice under
\nSection 123(2)<\/a>\tand (3A)  were found  to be  vague and\tnon-
\nspecific and  the pleadings in that connection were directed
\nto be  struck off.  Against the\t order of  rejection of\t the
\npreliminary objection  raised in  Ex,  16,  respondent\tNo.1
\npreferred a  special leave  petition being  SLP(c) No.19165-
\n66\/91 in  this Court  which was\t dismissed on  20th December
\n1991 by the following order :\n<\/p>\n
     “The    special\tleave  petitionis   –\n<\/p>\n
     dismissed. However,this order  will  not
\n     prevent him  from\t raising  objections,
\n     which are\tavailable   to\thim according
\n     to\t law,  when  the  evidence  is\t made
\n     on\t the relevant allegations.”\n<\/p>\n
     Subsequently, an  application, Ex.\t 27,  filed  by\t the
\nappellants for\tleave to  amend the  election  petition\t for
\ncorrecting certain inadvertant “errors, omissions and slips”
\nwas allowed on 28.11.1991 and the necessary corrections were
\ncarried out  in the  election petition. Again an application
\nEx. 47\/A  filed by  the appellants seeking further amendment
\nof the\tverification clause  of the  petition was allowed by
\nthe Court  on 18.01.1992,  after an earlier application, Ex.
\n44,  filed  by\tthe  appellants\t seeking  amendment  of\t the
\nelection petition had been allowed on 18.12.1991.\n<\/p>\n
     A detailed\t written statement  was thereafter  filed by
\nrespondent No.1 in which the charges levelled against him in
\nthe election  petition were  vehemently\t denied.  Respondent
\nNo.1, in  respect of  certain items  of expenditure,  took a
\nspecific stand\tthat  the  expenditure\ton  those  items  as
\ndetailed by  the appellants  in the  election petition, were
\nincurred by  Nagpur City  District Congress  Committees\t and
\nNagpur Gramin  Congress Committee and not by him. Similarly,
\nin respect  of some  other items  of expenditure, respondent
\nNo.1 took  the plea that the expenditure in respect of those
\nitems was  incurred by\tcertain organisations, associations,
\nindividuals, friends and well-wishers, without any authority
\nor consent  of respondent  No.1 or  his election  agent\t and
\ncompletely on their own volitions. In the written statement,
\nthe names  of some  of the  organisations and individuals as
\nwell as\t the associations of persons and the political party
\nwho  had   incurred  the   expenditure\twere   furnished  by
\nrespondent No.1.  It was  maintained by respondent No.1 that
\nhe  had\t  not  incurred\t any  expenditure  besides  the\t one
\nreflected in  the return  of election  expense and  had\t not
\ncommitted any  corrupt practice.  After the  amendments were
\ncarried out  by\t the  appellants,  the\treturned  candidate,
\nRespondent No.1\t filed yet another application Ex.50 seeking
\nstriking  out\tof  some   other  `vague  and  non-specific’
\npleadings but  the same\t was rejected,\tthough the prayer of
\nRespondent No.1\t to amend the written statement made through
\napplication Ex.49 was allowed on 9.1.1992.\n<\/p>\n
     From the pleadings of the parties, the following issues
\nwere framed on 21.1.1992:-\n<\/p>\n
       (1)Do the  petitioners prove that they
\n     were electors  in the election  held for
\n     the Tenth\t Lok  Sabha from  23,  Nagpur
\n     Parliamentary Constituency?<\/p><\/blockquote>\n
     (2) (a)  Do the  petitioners prove\t that
\n     a\tmeeting was held  in  the  office  of
\n     the     Maharashtra    State    Handloom
\n     Corporation on    17.5.91\tduring\t  the
\n     Tenth Lok Sabha Election from 23, Nagpur
\n     Parliamentary Constituency?\n<\/p><\/blockquote>\n
     (b) Do  the petitioners  further prove
\n     that  the\tsaid meeting was addressed by
\n     the respondent No.1?\n<\/p><\/blockquote>\n
     (c)  Do  the petitioners prove that in
\n     the said meeting, respondent  No.1\t  had
\n     declared\tthat   labour\tcharges\t  for
\n     handloom weavers  would be\t increased by
\n     0.35 paise per sq. metre from June 1991?\n<\/p><\/blockquote>\n
     (d) Do  the petitioners prove that the
\n     said declaration  of increase    in  the
\n     labour   charges\t   was\t made\t   by
\n     respondentNo.1 to\t hold  out promise of
\n     gratification for\tinducing the  weavers
\n     numbering\t1,50,000   to  vote  for  the
\n     respondent No.1?\n<\/p><\/blockquote>\n
     (e) Do  the petitioners prove that the
\n     said declaration  made by the respondent
\n     No.1 amounts  to commission  of  corrupt
\n     practice\twithin\t the\tmeaning\t   of
\n     Section  123(1)(A)<\/a>\t i.e. bribery?\n<\/p><\/blockquote>\n
     (f) Do  the petitioners  further prove
\n     that   the\t  said declaration  made   by
\n     respondent\t    No.1  also\t  amounts  to
\n     undueinfluence constituting   commission
\n     of corrupt practice under Section 123(2)<\/a>
\n     and further    amounts  to\t   direct  or
\n     indirect interference  or\t  attempt  to
\n     interfere\twith  the  free\t exercise  of
\n     electoral\t rights\t  of   the   handloom
\n     weavers   who  were electors in the said
\n     election?<\/p><\/blockquote>\n
     (3) Do  the petitioners  prove that the
\n     respondent No.1  has   not\t   maintained
\n     correct   and   proper  accounts  as  is
\n     required to  be maintained under Section
\n     77<\/a> and  has incurred expenses in  excess
\n     of\t the limit  prescribed thereunder and
\n     thereby  committed\t    corrupt  practice
\n     under Section 123(6)<\/a> of the Act?
\n     (4) Do  the petitioners  prove that the
\n     respondent\t   No.1\t    incurred\t more
\n     expenditure than\twhat  is disclosed by
\n     him  in   the  return    of  expenditure
\n     annexed as\t   Annexure    7    to\t  the
\n     petition,\ton  the\t following  items  as
\n     alleged in\t paras 2,  4 to\t 2.10 of  the
\n     petition, on  account of  the\t  (i)
\n     payments made to Shri Devi Sharda Mangal
\n     Karyalaya,\t Nagpur,  by  way  of  office
\n     rent?\n<\/p><\/blockquote>\n
     (ii)  payments   made  to\t M\/S  Vishwa
\n     Bharti  Typing Institute, Nagpur.\n<\/p><\/blockquote>\n
     (iii)  payments   made to\tM\/S  Prince
\n     Travels,\t  Nagpur,      for     hiring
\n     autorickshaws and taxis.\n<\/p><\/blockquote>\n
     (iv)   payments  made  to\tM\/S  Pramod
\n     Automobiles, Nagpur.\n<\/p><\/blockquote>\n
\t    (v)\t payments  made\t to  M\/S  Raj
\n     Automobiles, Nagpur.\n<\/p><\/blockquote>\n
     (5) (a)  Do the  petitioners prove\t that
\n     the  respondent  No.1  has\t   authorised
\n     and\/or   incurred\t expenditure  on  the
\n     undermentioned items   which  has\t  not
\n     been    disclosed\tin    the  return  of
\n     expenditure annexed as Annexure 7 to the
\n     petition as alleged  in paras  mentioned
\n     in\t  the\tpetition   described  against
\n     each item hereunder?\n<\/p><\/blockquote>\n
     (b)(i)  Do\t the petitioners prove that
\n     printing cards  at Annexure  9  indicate
\n     that   the same  have been\t published by
\n     Nagpur   City\t District    Congress
\n     Committee, Nagpur,\t but  the expenditure
\n     incurred\ton printing  and distribution
\n     of about  15 lacs\t voter-cards has been
\n     made by respondent No.1 to the extent of
\n     Rs.2,25,000\/-.  Do\t    the\t  petitioners
\n     further prove  that the  respondent No.1
\n     has got\tprinted\t those\t  cards\t   at
\n     Shakti Offset   Works,  Nagpur   and the
\n     said firm\t received  a total  amount of
\n     Rs.2,25,000\/- from respondent No.1?\n<\/p><\/blockquote>\n
     (ii)  Do\tthe petitioners\t prove that
\n     respondent\t 1     got   printed  3,25000
\n     posters of\t  different   sizes    though
\n     those posters  show   that\t they\t were
\n     issued   by  President,  Nagpur District
\n     Congress\tCommittee  and\t  the  entire
\n     expenditure of  these posters    to  the
\n     tune of   Rs.3,40,250\/-   was   made  by
\n     respondent No.1?\n<\/p><\/blockquote>\n
     (iii) Do the petitioners prove that the
\n     respondent\t   No.1\t    published\t  his
\n     candidature by   large  size cut-outs at
\n     places  mentioned\t in\tAnnexure   11
\n     alleged to\t be prepared by persons whose
\n     names   are given\t in  Annexure  10? Do
\n     the petitioners further prove  that cost
\n     of\t  these\t  cutouts   comes   out\t   to
\n     Rs.2,83000\/- as   given  in  Annexure 11
\n     and was  incurred by respondent No.1  by
\n     paying  the same to persons mentioned in
\n     Annexure 10?\n<\/p><\/blockquote>\n
     (iv) Do  the petitioners prove that the
\n     respondent\t   No.1\t    advertised\t  his
\n     candidature  by\twall  paintings\t   at
\n     different\tlocations  at\t Annexure  12
\n     costing  about\tRs.88500\/-?   Do  the
\n     petitioners  further  prove  that\tthese
\n     wall paintings  work was  got   executed
\n     by\t  respondent  No.1  through  painters
\n     and incurred   expenditure\t   of  it  by
\n     payment  of  charges  of painters?\n<\/p><\/blockquote>\n
     (v)  Do  the  petitioners\tprove  that
\n     about   12,40,830 lettrers such as those
\n     at Annexure 13 $ 14 were got prepared by
\n     the   respondent No.1  and were  sent to
\n     voters  and   almost  all\tthe    voters
\n     received\t  these\t letters?     Do  the
\n     petitioners further prove\tthat although
\n     on this letter, it appears that the same
\n     is being\tsent  at   the instance\t   of
\n     Sarva  Dharma Sambhav Samajik Sanghatna,
\n     trhe expenditure  required in  fact  was
\n     incurred\tby  respondent\tNo.1  to  the
\n     extent  of\t Rs.12,40,830\/-?\n<\/p><\/blockquote>\n
     (vi)  Do\tthe petitioners\t prove that
\n     advertisement  in newspapers at Annexure
\n     A at Sl. Nos.A2, A5, A7, A8, A10, A14 to
\n     A19,   A22 to    A27,  A28(b),    A30(a)
\n     (first   part) A30\t  (b)  (second part);
\n     Annexure B\t at Sl. Nos. B4 to B9, B11 to
\n     B14,B17 and   B18,\t Annexure   C at  Sl.
\n     Nos.   C1, C2,  C4, C5, C10,C12, C14  to
\n     C18, C23  $ C24. Annexure D: at Sl. Nos.
\n     D1, D2, D3, D5,  D7, D8,  D11, D13,  and
\n     D15: Annexure  E at Sl. Nos. E1, E2, E9,
\n     and E10; Annexure F, At Sl. Nos. F1, F2,
\n     F3, F6,  F10, F14\t and F16;  Annexure G
\n     at Sl.   Nos. G1,\tG2 and G3; Annexure H
\n     at Sl.   Nos. H11\tto H14,\t H17, H8, H11
\n     and H17,  were published  by  respondent
\n     No.1  himself  in\tconnection  with  the
\n     election and  he  himself\tincurred  the
\n     expenditure?\n<\/p><\/blockquote>\n
     (vii) Do  the petitioners prove that the
\n     advertisements appearing  in  newspapers
\n     at-      Annexure A:  at S.Nos.  A6, A9,
\n     A11 to   A13,  A20,  A21,\tA27(a),\t A28,
\n     A30(b)   (first\tpart)\tand   A31(b);
\n     Annexure B:   At  S.   Nos. B1,  B2, B3,
\n     B10, B15, B16 and B19.\n<\/p><\/blockquote>\n
       Annexure C:  at S.  Nos. C3, C6 to C9,
\n     C11, C13, C19 to C22.\n<\/p><\/blockquote>\n
       Annexure\t D: at\tSl. Nos. D6, D9, D10,
\n     D12, and D14.\n<\/p><\/blockquote>\n
     Annexure E: At Sl. Nos. E3 to E8;
\n       Annexure F:  at S.  Nos. F3, F5, F7 to
\n     F9, F11 to F13 & F15;\n<\/p><\/blockquote>\n
       Annexure\t G: at\tS. Nos. G4 to G8; are
\n     published\t in connection\twith election
\n     by\t the   respondent  No.1\t  and\t  the
\n     expenditure  of  which  is\t incurred  by
\n     the respondent  No.1 himself  though  in
\n     the  said\tadvertisement  the  names  of
\n     publishers are   shown as\tpersons other
\n     than   the respondent  No.1 as  given in
\n     Annexures.<\/p><\/blockquote>\n
     (6) (a)  Do the  petitioners prove\t that
\n     the respondent  No.1 had\temployed  M\/S
\n     Yugdharma\tConsultant    and  Commercial
\n     Services, Nagpur\t to  publicise\t  his
\n     candidature and  incurred expenditure as
\n     per the  details shown  in Annexures  17
\n     and 18  alleged  in  para\t2.13  of  the
\n     petition.<\/p><\/blockquote>\n
     (b)  Do   the petitioners\t prove that
\n     besides   the\tabove\tagency,\t  the
\n     respondent No.1  had employed  two other
\n     agencies,\t namely,    Orange\t City
\n     Advertising   and Prasad  Publicity  for
\n     publishing\t  his\t    candidature\t   by
\n     advertisements issued  in the nesspapers
\n     and   thereby authorised\tand  incurred
\n     expenditure as  per   details shown   in
\n     Annexure\t18A,   18B   and   18C\t  and
\n     alleged in\t paras 2.23A  to 2.23D of the
\n     petition?<\/p><\/blockquote>\n
     (c)  Do   the petitioners\t prove that
\n     election  agent\t of  respondent\t No.1
\n     incurred total  expenditure to  the tune
\n     of\t Rs.39500\/-    on      14.6.91\t  and
\n     17.6.91\t for\t  publication\t   of
\n     advertisement  in\tconnection  with  the
\n     election?\n<\/p><\/blockquote>\n
     (7) Do  the petitioner  prove that the
\n     respondent\t No.47\t did   not   properly
\n     scrutinise\t  the\tnomination   of\t  the
\n     respondent No.3 and  he was  allowed  to
\n     represent\t himself  as  such, althoough
\n     a\t wireless message   dated  26.4.91 to
\n     the contrary  was\t received    by\t  the
\n     Returning\t Officer   prior    to\t  the
\n     acceptance of the nomination papers from
\n     the  Chief\t  Electoral  Officer  of  the
\n     Maharashtra ?<\/p><\/blockquote>\n
     (8) Do  the petitioners  prove  that  by
\n     allowing\tthe respondent\t No.3\t   to
\n     represent\t himself   as\tthe  official
\n     candidate of   R.P.I.(k), the  result of
\n     the election  of the respondent No.1 has
\n     been materially affected?\n<\/p><\/blockquote>\n
     (9)  Are\tthe petitioners entitled to
\n     have inspection of the ballot  papers on
\n     the basis\t of  the allegations  made in
\n     paras 3.1\t to 3.11  of the petition and
\n     the allegations made in paras 1 to 13 of
\n     Ex.28?\n<\/p><\/blockquote>\n
     (10) Do  the petitioners prove that the
\n     election of  the respondent No.1  to the
\n     Tenth Lok\t Sabha\t from\t23,    Nagpur
\n     Parliamentary   Constituency    is\t void
\n     on\t  accunt    of\t  the  commission  of
\n     corrupt  practices\t    under     Section
\n     123(1A)<\/a>   & Section  123(2)<\/a> and  Section
\n     123(6)<\/a> of the Act?\n<\/p><\/blockquote>\n
     (11) Do  the petitioners prove that the
\n     respondent No.2 has secured  majority of
\n     valid votes   to  entitle\t  him  to  be
\n     declared as   duly\t  elected   from  23,
\n     Nagpur   Parliamentary  Constituency  to
\n     the Tenth Lok Sabha?\n<\/p><\/blockquote>\n
     (12)  Do\tthe petitioners\t prove that
\n     but   for\t  the\tvotes\tobtained   by
\n     respondent No.1   by  alleged    corrupt
\n     practices, the  respondent\t  No.2\twould
\n     have obtained   majority  of valid votes
\n     to\t entitle  him  to  be  declared\t duly
\n     elected ?\n<\/p><\/blockquote>\n
     (13)  whether  respondent No.2  can be
\n     declared as  duly elected\tto the\tTenth
\n     Lok Sabha\tfrom 23, Nagpur Parliamentary
\n     Constituency, Nagpur ?\n<\/p><\/blockquote>\n
     (14) What order?<\/p><\/blockquote>\n
     After  the\t evidence  of  some  of\t the  witnesses\t was
\nrecorded on  behalf of\tthe appellants,\t Election Petitioner
\nNo.1 filed  an application, Ex. 701 on 27.5.1992, once again
\nfor amending  the election  petition in\t the  light  of\t the
\nevidence recorded.  Respondent No.1  filed his objections to
\nthe said  application through  Ex.  834\t on  15.6.1992.\t The
\nlearned Single Judge, allowed the application permitting the
\nelection petitioner  to amend  the  election  petition\tonce
\nagain and  being of  the view that no new issue was required
\nto be  framed  on  the\tbasis  of  the\tproposed  amendments
\ndirected that  the Respondent No.1 could apply for recalling
\nany  of\t  the  petitioners’  witnesses\tfor  further  cross-
\nexamination  On\t  17.6.1992,  Respondent   No.1\t  filed\t  an
\napplication Ex. 835 for leave to amend the written statement
\nwhich was  also allowed.  We shall advert to the proceedings
\nconcerning various  amendments in  the latter  part of\tthis
\njudgment.\n<\/p>\n
     The  learned  Single  Judge  after\t conclusion  of\t the
\nevidence and  after hearing  learned counsel for the parties
\nheld that  the appellants  (election petitioners) had proved
\nthat respondent No.1 had not maintained a correct and proper
\naccount of  the election  expenditure as  is required  to be
\nmaintained under  Section 77<\/a>  of the  Act. It was also found
\nthat  respondent  No.1\thad  not  shown\t in  his  return  an
\nexpenditure to\tthe extent  of\tRs.58220\/-  apart  from\t the
\nexpenditure  shown   by\t him   in  the\treturn\tof  election
\nexpenditure but\t since the  addition of\t the said amount, to
\nthe amount  of expenditure  shown by  respondent No.1 in his
\nreturn of  election expenses, did not exceed the permissible
\nlimit of  Rs.1,50,000\/-, the  returned candidate, respondent
\nNo.1, did  not commit  any corrupt  practice as envisaged by
\nSection 123(6)<\/a>\tand  dismissed\tthe  election  petition\t but
\nwithout any order as to costs in favour of Respondent No.1.\n<\/p>\n
     Since,  in\t  this\tappeal\t learned  counsel   for\t the
\nappellants Dr.\tGhatate has  confined his  case to issues 3,
\n4(V), 5(b)  (i) (ii) (v) (vi) (vii); issue No.6 (a) (b) (c);
\nand partly  Issue No.10,  we are,  as such,  relieved of the
\nnecessity of  dealing with  the other issues. We confirm the
\nfindings of  the High  Court in\t respect of  those issues of
\nwhich correctness has not been disputed before us.\n<\/p>\n
     The right\tto elect  and the  right to  be elected\t are
\nstatutory rights. These rights do not inhere in a citizen as
\nsuch and  in order to exercise the right certain formalities
\nas provided  by the  Act and  the Rules\t made thereunder are
\nrequired  to   be  strictly  complied  with.  The  statutory
\nrequirements of\t election law  are to  be strictly  observed
\nbecause the  election contest  is not  an action at law or a
\nsuit in\t equity but  it is  a  purely  statutory  proceeding
\nunknown to  the common\tlaw. The  Act<\/a> is  a complete code in
\nitself for  challenging an  election and an election must be
\nchallenged only\t in the\t manner provided  for by the Act. In
\nJyoti Basu  Vs. Debi  Ghosal (1982  (3) SCR 318), this Court
\nobserved:\n<\/p>\n
       “A   right     to  elect,  fundamental
\n     though   it    is\t  to  democracy,  is,
\n     anomalously  enough,      neither\t    a
\n     fundamental right\tnor   a Common\t  Law
\n     Right.   It is   pure  and\t  simple,   a
\n     statutory right.\tSo  is\tthe right  to
\n     be elected.  So is the right to  dispute
\n     an\t  election. Outside of statute, there
\n     is no  right  to elect,  no right\tto be
\n     elected  and  no  right  to  dispute  an
\n     election.\t Statutory   creations\t they
\n     are,     and  therefore,\tsubject\t   to
\n     statutory\t limitation.   An    Election
\n     petition is   not\tan   action at Common
\n     Law, nor  in equity.  It is a  statutory
\n     proceeding\t to which  neither the Common
\n     Law nor the  principles of\t Equity apply
\n     but  only\t   those    rules  which  the
\n     statute  makes  and  applies.  It\tis  a
\n     special jurisdiction,  and\t   a  special
\n     jurisdiction has  always to be exercised
\n     in\t  accordance   with    the    statute
\n     creating\tit.  Concepts  familiar\t   to
\n     Common   Law   and\t Equity\t must  remain
\n     strangers\tto    Election\tLaw    unless
\n     statutorily  embodied.   A Court has  no
\n     right     to  resort      to   them   on
\n     considerations   of    alleged    policy
\n     because policy   in  such\t matters   as
\n     those,  relating  to    the  trial\t   of
\n     election\t disputes,  is\t  what\t  the
\n     statute lays   down,  In  the  trial  of
\n     election disputes,\t Court is  put\tin  a
\n     straight jacket.”\n<\/p>\n
     Though the election of a successful candidate is not to
\nbe interfered with lightly and the verdict of the electorate
\nupset, this Court has emphasised  in more than one case that
\none of\tthe essentials\tof the election law is to  safeguard
\nthe purity of the election process and to see that people do
\nnot get\t elected by  flagrant breaches\tof  the\t law  or  by
\ncommitting corrupt  practices. It must be remembered that an
\nelection petition  is not a matter in which the only persons
\ninterested  are\t the  candidates  who  fought  the  election
\nagainst\t each\tother.\tThe  public  is\t also  substantially
\ninterested in  it and  it  is  so  because  election  is  an
\nessential part\tof a  democratic process. It is equally well
\nsettled by  this Court\tand necessary to bear in mind that a
\ncharge of  corrupt practice  is in  the nature\tof  a  quasi
\ncriminal charge,  as its  consequence is  not only to render
\nthe election  of the  returned candidate  void\t but in some
\ncases  even  to\t impose\t upon  him  a  disqualification\t for
\ncontesting even\t the next  election.  The  evidence  led  in
\nsupport of  the corrupt practice must therefore, not only be
\ncogent and  definite but  if the  election petitioner has to
\nsucceed,  he   must  establish\t definitely   and   to\t the
\nsatisfaction of\t the court  the charge\tof corrupt  practice
\nwhich he  levels against  the returned\tcandidate. The\tonus
\nlies heavily  on the  election petitioner  to establish\t the
\ncharge of  corrupt practice and in case of doubt the benefit
\ngoes to\t the returned  candidate. In the case of an election
\npetition, base\ton  allegations\t of  commission\t of  corrupt
\npractice, the  standard of  proof is generally speaking that
\nof criminal  trials, which  requires  strict  proof  of\t the
\ncharge beyond  a reasonable doubt and the burden of proof is
\non the\tpetitioner and that burden does not shift. (See with
\nadvantage :  Nihal Singh  Vs. Rao Birendra Singh & Anr (1970
\n(3) SCC,  239); Om  Prabha Jain\t Vs. Charan Das & Anr. (1975
\n(Supp) SCR,  107); Daulat Ram Chauhan Vs. Anand Sharma (1984
\n(2) SCR,  419) and  Quamarul Islam Vs. S.K. Kanta And Others
\n(1994 Supp (3) SCC, 5).\n<\/p>\n
     By\t this\tproposition,  however,\t we  should  not  be
\nunderstood to  mean or\timply that the returned candidate is
\nabsolved from  his liability  to bring forth evidence on the
\nrecord\tto   rebut  the\t  case\tof  the\t petitioner  and  to
\nparticularly prove  such facts\twhich are within his special
\nknowledge  (Section 106<\/a> Evidence Act). Though, the nature of
\nallegations in\tcases alleging\tcorrupt practices are quasi-
\ncriminal and  the burden  is heavy  on him  who\t assails  an
\nelection but  unlike in\t a criminal  trial, where an accused
\nhas the\t liberty to  keep silent,  during the  trial  of  an
\nelection petition the returned candidate has to place before
\nthe Court  his version\tand to satisfy the Court that he had
\nnot  committed\tthe  corrupt  practice\tas  alleged  in\t the
\npetition and wherever necessary by adducing evidence besides
\ngiving his sworn testimony denying the allegations. However,
\nthis stage reaches if and when the election petitioner leads
\ncogent and  reliable evidence  to prove the charges levelled
\nagainst the returned candidate as, only then, can it be said
\nthat the  former has discharged his burden. That necessarily
\nmeans, that  if the election petitioner fails to adduce such
\nevidence which\tmay persuade the Court to draw a presumption
\nin his favour the returned candidate will not be required to
\ndischarge his burden by adducing evidence in rebuttal. While
\non this\t point it will be also pertinent to mention that the
\nelection petitioner  has stablish the charge by proof beyond
\nreasonable  doubt   and\t not   merely  by  preponderance  of
\nprobabilities as  in civil  action. In\tSurendra  Singh\t Vs.
\nHardayal Singh [AIR 1985 SC 89], this Court held it as
\n      “very  well   settled  and  uniformally
\n     accepted\t  that\tcharges\t  of  corrupt
\n     practices\tare   to  be   equated\t with
\n     criminal  charges\tand    proof  thereof
\n     would  be\t   not\t  preponderance\t   of
\n     probabilities,  as\t  in  civil   action,
\n     but   proof  beyond reasonable doubt and
\n     if after  balancing the evidence adduced
\n     there still   remains  little   doubt in
\n     proving the  charge its benefit must  go
\n     to\t  the returned\t candidate.’  Various
\n     tests have\t been\tlaid down by the High
\n     Courts and\t by this  Court to  determine
\n     the   extent   of\t proof\t required  to
\n     establish\ta corrupt practice.  The most
\n     well accepted   test  however   is\t that
\n     the    charge   must     be  established
\n     fully   to\t   the\tsatisfaction  of  the
\n     Court. While insisting upon the standard
\n     of strict\t proof\tbeyond\t a reasonable
\n     doubt, the\t courts are  not required  to
\n     extend  or stretch\t the doctrine to such
\n     an extreme\t extent\t  as to\t make it well
\n     neigh impossible to prove any allegation
\n     of corrupt\t practice   and as  was\t said
\n     in Harcharan  Singh   Vs.\tSajjan\tSingh
\n     [AIR 1985\tSC  236]  “such\t an  approach
\n     would   defeat and\t  frustrate the\t very
\n     laudable and  sacrosanct object   of the
\n     Act  in\t maintaining  purity  of  the
\n     electoral process”.\n<\/p>\n
     We are  in respectful  agreement with  the above  view.
\nSome times  direct evidence  about the commission of corrupt
\npractice may  not be  forthcoming or  available and  in that
\ncase, the  charge may  be proved by producing circumstantial
\nevidence but  the courts, in such cases insist, that each of
\nthe circumstances  must be  proved individually\t and all the
\ncircumstances put together must point unerringly only to the
\nhypothesis of  the commission of the corrupt practice by the
\nreturned candidate  and must  not be  capable of  any  other
\nhypothesis consistent  with the\t innocence of  the  returned
\ncandidate.   (See : Quamarul Islam Vs. S.K. Kanta And Others
\n(supra); Raj  Narain Vs.  Indira Gandhi (1976 (2) SCR, 347);
\nCh. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others (1975
\n(4) SCC, 769).\n<\/p>\n
     The election  law insists\tthat to\t unseat\t a  returned
\ncandidate,  the\t corrupt    practice  must  be\tspecifically
\nalleged and  strictly proved  to have  been committed by the
\nreturned candidate  himself or\tby his\telection agent or by
\nany other  person with the consent of the returned candidate
\nor by  his   election agent.  Suspicion,  howsoever,  strong
\ncannot take  the place of proof, whether the allegations are
\nsought\tto   be\t established   by  direct   evidence  or  by
\ncircumstantial evidence.  Since, pleadings play an important
\nrole in\t an election  petition, the legislature has provided
\nthat the  allegations of  corrupt practice  must be properly
\nalleged and both the material facts and particulars provided
\nin the petition itself so as to disclose a complete cause of
\naction.\n<\/p>\n
     Section 83<\/a>\t of  the  Act  provides\t that  the  election
\npetition must  contain a  concise statement  of the material
\nfacts on  which the  petitioner relies\tand further  that he
\nmust set forth full particulars of the corrupt practice that
\nhe alleges  including as full a statement as possible of the
\nname of\t the parties  alleged to have committed such corrupt
\npractices and  the date and  place of the commission of each
\nof such\t corrupt practice.  This Section has been held to be
\nmandatory and requires first a concise statement of material
\nfacts and  then the  full particulars of the alleged corrupt
\npractice. So  as to  present a\tfull picture of the cause of
\naction.\n<\/p>\n
     A petition\t levelling a  charge of\t corrupt practice is
\nrequired, by  law, to  be supported  by an affidavit and the
\nelection petitioner  is also  obliged to disclose his source
\nof information\tin respect of the commission of the  corrupt
\npractice.  This\t becomes  necessary  to\t bind  the  election
\npetitioner to  the charge levelled by him and to prevent any
\nfishing or  roving  enquiry  and  to  prevent  the  returned
\ncandidate from\tbeing taken  by a  surprise. (See: Samant N.
\nBalakrishna Vs.\t George Fernandez  and others  (AIR 1969 SC,
\n1201).\n<\/p>\n
     The jurisdiction  to try  an election petition has been
\nvested in  the High Courts. Election petitions are generally
\nspeaking tried\tby experienced\tJudges of  the High  Courts.
\nThose learned  Judges have  the\t benefit  of  observing\t the
\nwitnesses  when\t  they\t give\tevidence.   Therefore,\t the
\nappreciation of\t evidence by  the High\tCourt is entitled to
\ngreat weight.  Generally speaking  this\t Court\taccepts\t the
\nfindings  of  fact  arrived  at\t by  the  High\tCourt  after
\nappreciation of\t evidence. (See\t Sheodan Singh\tVs Mohan Lal
\nGautam (AIR 1969 SC 1024).  Being the court of First Appeal,
\nhowever, this  court has  no inhibition\t in reversing such a
\nfinding, of  fact or  law, which  has  been  recorded  on  a
\nmisreading or wrong appreciation of the evidence or the law,
\nbut ordinarily\tand generally  speaking this court does not,
\nas it  ought not  to, interfere\t with the  findings of\tfact
\nrecorded by  the learned  trial Judge  of  the\tHigh  Court,
\nunless there  are compelling  reasons to do so. It is in the
\nlight  of  the\tabove  settled\tprinciples,  that  we  shall
\nconsider the materials on the record and the findings of the
\nHigh Court  in respect\tof which  challenge  has  been\tmade
\nbefore us.\n<\/p>\n
     As\t already  noticed,  the\t appellants  confined  their
\nchallenge to  the findings  in respect of some of the issues
\nonly which  relate to  the commission of corrupt practice of
\nincurring  or  authorising  expenditure\t in  excess  of\t the
\nprescribed limits  within the  meaning of  Section 123(6)<\/a> of
\nthe Act. It would, therefore, be appropriate to consider the
\nparameters of the alleged corrupt practice before we examine
\nthe findings  and the  arguments in  respect of the relevant
\nissues.\n<\/p>\n
     Section 77<\/a> of the Act provides that ‘every candidate at
\nan election shall either by himself or by his election agent
\nkeep a\tseparate and  correct account  of all expenditure in
\nconnection with\t the election  incurred or authorised by him
\nor by  his election agent between the date of publication of
\nthe notification  calling  the\telection  and  the  date  of
\ndeclaration of\tthe result  thereof,  both  days  inclusive,
\nExplanation (1) which was introduced by the Amendment Act<\/a> of
\n1974 declares that any expenditure incurred or authorised in
\nconnection with\t the election  of a candidate by a political
\nparty or  by any  other association or body of persons or by
\nany individual,\t (other than  the candidate  or his election
\nagent) shall  not be  deemed to\t have been,  expenditure  in
\nconnection with\t the election  incurred or authorised by the
\ncandidate or  by his election agent for the purposes of sub-
\nsection (1)  of Section\t 77<\/a>. Sub-section  (2) of  Section 77<\/a>
\nprovides that the account of election expenses shall contain
\nsuch particulars  as may  be prescribed\t and sub-section (3)
\nlays down  that the  total of the said expenditure shall not
\nexceed such  amount as may be prescribed. Vide Section 78<\/a> of
\nthe Act\t the account  of election expenses is required to be
\nlodged with  District Election Officer by every candidate at
\nan election  within thirty days from the date of election of
\nthe returned  candidate.  The  maximum\tamount\tof  election
\nexpenditure which  may be incurred by the candidates for the
\nparliamentary\tand   Assembly\t Constituencies\t  has\tbeen
\nprescribed in Rule 90 of the Conduct of Election Rules 1961.
\nIn so  far as the Parliamentary Elections are concerned, the
\nsaid limit  is Rs.1,50,000\/-.  Under Section  123(6)<\/a> of\t the
\nAct,  the   incurring  or   authorising\t of  expenditure  in
\ncontravention of Section 77<\/a> of the Act amounts to commission
\nof a  corrupt  practice.  However,  every  contravention  of
\nSection 77<\/a>  of the  Act does not fall within the mischief of
\nSection 123(6)<\/a>\tof the\tAct. Neither  the violation  of sub-
\nsection (1)  of Section\t 77<\/a> nor the violation of sub-section
\n(2) of\tSection 77<\/a>  amounts to the commission of the corrupt
\npractice under\tSection 123(6)<\/a>\tof the Act. However, Section
\n77(3)<\/a>  mandates\t  that\tthe  total  of\tthe  expenditure  in
\nconnection with the election shall not exceed the prescribed
\nlimit and  therefore the provisions of Section 123(6)<\/a> of the
\nAct are\t related only  to Section  77(3)<\/a> of  the Act.  If  a
\ncandidate incurs  or authorises expenditure in excess of the
\nprescribed limits,  he commits\tthe corrupt  practice  under
\nSection 123(6)<\/a>\tof the\tAct and his election is liable to be
\nset aside  and he  also incurs the disqualification of being
\ndebarred from  contesting the  next election.  From a  plain
\nreading of Section 123(6)<\/a> and 77<\/a> including  Explanation I to
\nthe Section  77<\/a> of  the Act,  it is  therefore clear that in
\norder to  be a\tcorrupt practice,  the excessive expenditure
\nmust be\t incurred or  authorised by  the  candidate  or\t his
\nelection agent.\t An expenditure\t incurred by a third person,
\nwhich is  not authorised  by the  candidate or\this election
\nagent is not a corrupt practice. In Magh Raj Patodia Vs R.K.
\nBirla, [AIR  1971 SC  1295] after  referring to\t a catena of
\nauthorities even  before the  inclusion of  Explanation I to
\nSection 77<\/a>  of the  Act by  the Amendment Act<\/a> 58 of 1974, it
\nwas  emphasised\t that  to  prove  the  corrupt\tpractice  of
\nincurring or  authorising expenditure  beyond the prescribed
\nlimit, it  is not  sufficient for  the petitioner  to merely
\nprove that  the expenditure  beyond the prescribed limit had
\nbeen  incurred\tin  connection\twith  the  election  of\t the
\nreturned candidate,  but he  must go  further and prove that
\nthe excess  expenditure was  authorised or incurred with the
\nconsent of  the returned candidate or his election agent. In
\nRaj Narain  Vs. Indira\tGandhi (1976 (2) SCR 347) this Court
\nreaffirmed the\tabove view  and taking note of the Amendment
\nAct<\/a> 58\tof 1974,  opined that voluntary expenditure incurred
\nby friends,  relations, or  sympathisers of the candidate or
\nthe candidates’\t political party  are  not  required  to  be
\nincluded in  the candidate’s  return of expenses, unless the
\nexpenses were  incurred in  the circumstances  from which it
\ncould be  positively inferred  that the successful candidate
\nhad undertaken\tthat he\t would reimburse  the party  or\t the
\nperson who  incurred the  expense. It is not enough to prove
\nthat some  advantage accrued  to the  returned candidate  or
\neven that  the expenditure  was incurred  for the benefit of
\nthe returned  candidate or  that it was within the knowledge
\nof the\treturned candidate  and he  did not  prevent it,  to
\nclothe\tthe   returned\tcandidate   with  the  liability  of
\ncommitting  the\t alleged  corrupt  practice.  Noticing\tthat
\nduring an  election, the  sponsoring or supporting political
\nparties as well as friends, sympathisers and well-wishers do
\nsometimes inour\t expenditure not only without the consent of
\nthe concerned  candidate but even without his knowledge this
\ncourt opined that the successful candidate cannot be clothed
\nwith all such expenses to suffer the disqualification.\n<\/p>\n
     In P.Nalla\t Thampy Vs.  Union of  India  [AIR  1958  SC
\n1133], a  Constitution Bench  of  this\tCourt  examined\t the
\nvalidity of  Explanation (1)  to Section  77<\/a> (1)  of the Act
\n(introduced in\t1974) and  Chandrachud CJ  (as he  then was)
\nwhile upholding its constitutionality, observed:\n<\/p>\n
       “In  any\t   democratic\t system\t   of
\n     Government,  political parties occupy  a
\n     distinct  and  unique  place.  They  are
\n     looked upon   as\tguardian  angles   by
\n     their   members.,\tthough, occasionally,
\n     they   fail to   discharge\t the   benign
\n     role   of guardian,  leave\t   alone  the
\n     angelic part  of it.  It is through them
\n     that   the generality    of  the  people
\n     attempt  to  voice\t or  ventilate\ttheir
\n     grievances.   Considering,\t  also\t  the
\n     power  which  they\t   wield    in\t  the
\n     administration\t of\t Governmental
\n     affairs,  a    special  conferment\t   of
\n     benefits\ton them\t  in  the  matter  of
\n     mobilities\t governing     the   election
\n     process   cannot\t be    regarded\t   as
\n     unreasonable or arbitrary.”\n<\/p>\n
     The Constitution Bench thus emphatically laid down that
\nunless the  expenditure is in fact incurred or authorised by
\nthe candidate  or his  election agent,\the cannot be saddled
\nwith that  expenditure. Of  course  a  candidate  cannot  be
\npermitted to  place his own funds in the power or possession
\nof a  political party, an association, or some other persons
\nor individuals\tfor being spent on his behalf and then plead
\nfor the\t protection under  Explanation (1)  to Section 77<\/a> of
\nthe  Act.   Where  the\t election  petitioner\tsuccessfully
\nestablishes that  the funds  were provided  by the  returned
\ncandidate, it  would be\t immaterial as\tto who actually made
\nthe payments,  which ought  to have  been  included  in\t the
\nreturn of election expense. It is not “whose hand it is that
\nspends the money”. The essence of the matter is “whose money
\nit is” that has been spent. In order that explanation (1) to
\nSection 77<\/a>  of the  Act may  apply, therefore,\tit  must  be
\nproved that  the source\t of the expenditure incurred was not
\nout of the money of the candidate or his election agent.\n<\/p>\n
     Respondent No.  1 lodged  the account  of his  election
\nexpenses with  the District  Election Officer  on 12th July,
\n1991,  supported   by  45   vouchers  disclosing  the  total
\nexpenditure of Rs. 72,421.85. The appellants in the election
\npetition pleaded  that Respondent  No. 1 had not kept a true
\nand correct  account  of  the  expenditure  incurred  and\/or
\nauthorised by  him or  by his  election agent in relation to
\nthe elections  held on\t12th June, 1991 and had exceeded the
\nprescribed limit  and thereby committed the corrupt practice
\nunder Section 123(6)<\/a> of the Act. The appellants alleged that
\na huge amount of expenditure incurred in connection with the
\nelection of  Respondent No. 1 was falsely shown to have been
\nincurred by  the political  party  and\tother  associations,
\npersons or  individuals, though\t in fact the expenditure had
\nbeen incurred  and\/or authorised by Respondent No. 1 himself
\nor by  his election  agent. It\twas asserted that Respondent
\nNo. 1  had placed  his own funds in the power and possession
\nof the\tpolitical party,  organisations and  individuals for
\nbeing spent  in connection  with his  election in  order  to
\ncircumvent the\tlaw  and  escape  from\tthe  consequence  of
\nincurring and  authorising expenditure beyond the prescribed
\nlimits. It was alleged that Respondent No. 1 had incurred an
\nexpenditure for\t the purpose  of  his  election\t during\t the
\nperiod\t25.4.1991   to\t16.6.1991   to\tthe   tune  of\t Rs.
\n38,30,375.50,  as  against  the\t permissible  limit  of\t Rs.
\n1,50,000.00. The statement showing the expenditure allegedly
\nincurred and  authorised by  Respondent No.  1 was  given in
\npara 2.24  of the  election petition. At the trial, however,
\nitems No.  2, 8,  9 and\t 14 out\t of that  statement were not
\npressed. The  High  Court,  however,  in  para\t200  of\t the
\njudgment found that besides the expenditure disclosed in the
\nreturn of  expenses filed  by Respondent  No. 1, he had also
\nincurred the following expenses, which had been suppressed:
\nRs. 17,900.00\t for the amount paid to Raj Automobiles;
\nRs. 1,320.00\t   for the advertisement in the Tarun Bharat
\n\t\t dated 28.4.1991.\n<\/p>\n
Rs. 7,000.00\t    for the  advertisement in Tarun Bharat –\n<\/p>\n
\t\t Election Special.\n<\/p>\n
Rs. 9,100.00\t for the advertisement in Lokmat Dt.\n<\/p>\n
\t\t 12.5.1991 (Sharad Pawar  Mitra Mandal)
\nRs. 22,900.00\t in view of the findings recorded on issue
\n\t\t No. 5(b) (vi) & (vii).\n<\/p>\n
———————\n<\/p>\n
Total : Rs. 58,220.00\n<\/p>\n
———————\n<\/p>\n
and adding  the amount\tof expenditure\tsuppressed i.e.\t Rs.
\n58,220.00, to  the declared  expenses, the  High Court found
\nthat the  return of  expenditure filed\tby Respondent  No. 1
\nshould have  been for  a sum  of Rs.  1,30,641.85.  However,
\nsince  even  that  amount  fell\t short\tof  the\t permissible
\nexpenditure of Rs. 1,50,000.00, it was found that Respondent
\nNo. 1  had not\tcommitted the  corrupt practice\t within\t the
\nmeaning\t of   Section  123<\/a>  (6)\t of  the  Act.\tWhereas\t the
\nappellants have challenged the findings of the High Court on
\nsome  of  the  issues,\tas  already  noticed,  the  returned
\ncandidate, Respondent No. 1, has also filed cross objections
\nchallenging the\t finding of the High Court in respect of the
\naddition of Rs. 58,220.00.\n<\/p>\n
ISSUE NO. 4 (V) :\n<\/p>\n
     Though issue No. 4 concerns five items, it is only item
\nNo. (v)\t which has  been pressed  before us  by the  learned
\ncounsel for  appellants. The  findings of  the High Court on
\nitems (i)  to (iv)  of Issue  No. 4, which have been decided
\nagainst the  appellants have  not been\tchallenged before us
\nand therefore,\twe confirm  the findings  of the  High Court
\nregarding those\t items. So far as Item No. (v) is concerned,
\nit relates  to the  payments made by respondent No. 1 to M\/S
\nRaj Automobiles for purchase of fuel etc.
\n     According to  the appellants,  Respondent No.  1 in his
\nreturn of  expenditure submitted  to the  District  Election
\nOfficer had,  under Items  31 to  34, shown  the expenditure
\nincurred by  him on account of purchases of petrol etc. from
\nM\/s. Raj  Automobiles, Civil  Lines, Nagpur  under bills No.
\n401 to\t404 for\t the period  1.5.1991 to  12.6.1991 but\t had
\nfailed to  include the\tcost of\t 1180 litres  of petrol also
\nallegedly purchased  by\t the  returned\tcandidate  from\t Raj
\nAutomobiles over  and above  the quantity of petrol shown to
\nhave been purchased by Respondent No. 1 under bill Nos. 401,
\n402 and 403, as disclosed in the return of expenses filed by
\nhim for\t the period  1.5.1991 to  12.6.1991. The  appellants
\nspecifically pleaded  that petrol  which had  been shown  to
\nhave been  purchased by\t respondent  No.  1  was  for  three
\nvehicles : (i) MH-31-G-1722; (ii) MH-02-2200; and (iii) 7069
\nbut the\t cost of  purchase of 1180 litres of petrol had been
\nsuppressed. In\this written  statement,\t Respondent  No.  1,
\nadmitted that  under  items  31\t to  34\t in  his  return  of
\nexpenditure, he had shown the expenditure incurred by him on
\naccount of  the purchase of petrol from M\/s. Raj Automobiles
\nduring\t1.5.1991   to  12.6.1991   but\t denied\t  that\t Raj
\nAutomobiles, Civil  Lines, Nagpur  had sold  1180 litres  of
\npetrol over  and above\tthe quantity of petrol shown to have
\nbeen purchased\tby him\tunder bill  No. 401,  402, 403 filed
\nalongwith the  statement of account. It was pleaded that the
\nallegation was\tvague and  based on  speculation and that no
\nparticulars had\t been given  of the  basis on  which it\t was
\nalleged that  he had  purchased 1180 litres of petrol at the
\ncost of Rs.17900\/- in addition to what had been disclosed by
\nhim.\n<\/p>\n
     The appellants  examined PW  36, Shankar Rao Gadge, who
\nwas working  as an  Accountant with  Raj Automobiles  at the
\nrelevant time.\tHe deposed  that a  credit account  had been
\nstarted for Respondent No. 1 at the instance of Mrs. Shalini
\nBai Meghe  (wife of  respondent No.  1 and proprietor of Raj
\nAutomobiles) and  credit  slip\tbooks  had  been  issued  to
\nRespondent No.\t1. That whenever petrol or oil was purchased
\nby or for respondent No.1, a copy of the credit slip used to
\nbe given  to M\/s.  Raj Automobiles  and its  counterfoil was
\nretained by  the customer.  The original  credit slips\twere
\nlateron returned to the first respondent alongwith the bill.
\nThe witness  after referring to the record deposed that fuel
\nhad been  supplied to  respondent No.  1 for car Nos. MH-31-
\n1722, MH-02-2200,  MK-1\/1022 besides  vehicle No.  1422\t and
\n7069 during  1.5.91 to\t16.6.91. He  also proved a cash memo
\ndated 16.6.1991\t for bill  No. 2503 (Ex. 681) for sale of 10
\nliters of  petrol  sold\t to  respondent\t No.1.\tThe  witness
\nadmitted that  receipt No. 843 dated 12.7.1991 (Ex. 680) was
\nin respect  of bill  Nos. 401  to 405  for the\tconsolidated
\namount of Rs. 12,152.40 and went on to say that the payments
\nhad been  made by  a cheque by respondent No.1. According to
\nthe witness, except the petrol which was sold under the cash
\nmemo Ex.680 all other petrol and oil sold to Datta Meghe was
\nworth Rs.  12152.40 p.\tAll these  transactions are  carried
\nover and  entered in their accounts. “We did not sell either
\noil  or\t petrol\t besides  these\t to  Datta  Meghe”  was\t the
\ncategorical statement made by PW36 Gadge.\n<\/p>\n
     The appellants  also examined Shri Prakash Baidya PW33.
\nThis witness  earlier used  to\tbe  a  partner\tin  M\/S\t Raj
\nAutomobiles till  1991 where  after he\tceased to  have\t any
\nconcern\t with  Raj  Automobiles.  During  the  parliamentary
\nelections, he  was the\tGeneral Secretary of the East Nagpur
\nAssembly Constituency  for BJP,\t the party to which both the
\nappellants as  well as\trespondent No. 2 belonged and was in
\ncharge of  that area. He deposed that it is necessary to put
\none litre  of oil if the consumption of petrol is 100 to 125
\nliters and  that in one litre of oil, the run of the vehicle
\nwould be  about 1000  kms. on  an average consumption at the
\nrate of\t 10 kms\t per litre  of\tpetrol.\t During\t the  cross-
\nexamination, he admitted that he had deposed about the ratio
\nof consumption of petrol and oil from his experience and not
\nfrom any  book and also conceded that if an engine is old it
\nwould consume  more oil\t as well as more petrol and that the
\noil-petrol ratio  varies according to the horse power of the
\nengine and  its model and that if the chamber of the vehicle
\nleaks, the  consumption of  oil would  be  more\t because  of
\nleakage and  not on  account of the consumption. He admitted
\nthat he is not an automobile engineer.\n<\/p>\n
     Respondent\t No.   1,  the\treturned  candidate  in\t his
\nstatement admitted  that his  wife owns\t Raj Automobiles and
\nthat petrol  and oil  were bought  by him on credit from Raj
\nAutomobiles, except  for one  cash transaction\ton 16.6.1992
\nfor Rs.\t 147.40 (Ex. 681). He went on to add that he did not
\nbuy  petrol   from  any\t other\tpetrol\tstation\t except\t Raj
\nAutomobiles during  the election  period and that the credit
\nslips which  used to  be  issued  to  Raj  Automobiles\twere
\nreceived back  by him with the bill from Raj Automobiles and
\nafter the  bills were paid, the credit slips were destroyed.
\nDuring his  cross-examination, he  stated that\the had three
\ndiesel and  four petrol\t cars with  him for his election and
\nthat he\t had hired  some motor cars and auto-rickshaw on 19,
\n20 and\t21 May\tand 8,\t9,  10\tJune,  1991  through  Prince
\nTravels. He  disclosed the names of the parties from whom he
\nhad procured those vehicles and asserted that besides Car No
\n7069 which he had procured from Nagar Yuvak Sanstha, he used
\nthe cars  of the  workers who  used to\tcome  and  see\thim.
\nAccording to him vehicle No.7069 is NE and the model was 3\/4
\nyears old.\n<\/p>\n
For coming to the conclusion that the returned candidate had
\npurchased more\tfuel than the one shown by him in his return
\nof expenditure,the  High Court\trelied upon  the  petrol-oil
\nratio as  deposed to  by pw  Baidya. It\t was found  that the
\namount of oil admittedly purchased by the returned candidate
\nas per bill No.404 when considered in the light of the total
\nfuel purchased\twould show  that, much\tmore fuel would have
\nbeen purchased\tto consume  the quantity of oil purchased as
\nper bill No.404. It was found by the High Court on the basis
\nof the\tcalculations made  that the  returned candidate\t had
\nsuppressed an  expenditure to  the tune\t of Rs.18,277.60 but
\nsince the  appenllants had  asserted  that  there  had\tbeen
\nsuppression of\tthe use\t of  1180  litres  of  petrol  worth
\nRs.17900\/-only,therefore only that much of expenditure could
\nbe  added   to\tthe   disclosed\t expenses  of  the  returned
\ncandidate.  The\t  High\tCourt\twhile  entering\t  into\t the
\ncalculations did not base itself on the oil-petrol ratio but
\nmultiplied the\tconsumption of\tpetrol for  one of  the cars
\n(MH-31G-1727), which  was admittedly used by respondent No.1
\nby 3  and drew\tan inference that for the other 3 cars also.
\nthe same  amount of petrol would have been consumed and thus
\nfound that  the returned candidate would have purchased more
\npetrol worth atleast Rs.18277.60.\n<\/p>\n
     In the election petition a specific allegation had been
\nmade to the effect that the returned candidate had purchased
\n1180 litres of petrol in addition to what had been disclosed
\nby him\tfrom Raj  Automobiles. In  the verification  of\t the
\nelection petition,the appellants had disclosed the source of
\ninformation with  regard to  the contents  of para  2.10  as
\nbased on  the information  received from  Shri Baidya PW. In
\nthe affidavit  filed in\t support of  the allegations  of the
\nsaid corrupt  practice, the  source of\tinformation was also
\ndisclosed to  be Shri Baidya PW. However, PW53, Shri Prakash
\nBaidya, in his deposition in court did not state that he had
\nconveyed any  information to  the election petitioners about
\nthe alleged  excess purchase  of 1180  litres of  petrol  by
\nRespondent No.1\t from M\/s.  Raj Automobiles  apart from\t the
\nquantity of fuel purchased by him as disclosed in the return
\nof  election   expenditure.  In\t  his  statement,   he\tonly
\nspeculated about  the excess purchase of petrol on the basis
\nof oil-petrol  ratio, based  on his  experience even  though
\nadmittedly he  is  not\tan  expert,not\teven  an  automobile
\nengineer. In  the election  petition nothing  was said about
\nthe petrol-oil\tratio as the basis from which the appellants
\nhad inferred  that 1180\t litres of petrol had been purchased
\nby the\treturned candidate  in addition\t to the\t quantity of
\nfuel  shown   to  have\t been  purchased  by  him  from\t Raj
\nAutomobiles. Except  for giving same figure of ‘1180’ litres
\nof petrol alleged to have been purchased by respondent No.1,
\nthe appellants\tdid not\t give any other facts or particulars
\nin the\telection petition  for\talleging  purchase  of\t1180
\nlitres of  excess petrol  and left the matter totally vague.
\nEven in\t his own  statement,appellant No.1, did not disclose
\nthe basis  for arriving\t at the figure of ‘1180’. An attempt
\nwas apparently\tmade to get sustenance from the testimony of
\nBaidya PW53,  admittedly a  partyman of\t the appellants\t and
\nrespondent No.2,  to support  the allegations  made  in\t the
\npetition on  the basis\tof oil-petrol  ratio. Even  in\tthat
\nbehalf we find that no evidence was led by the appellants to
\nshow as\t to what  were the models of the vehicles which were
\nused by\t the returned  candidate and the extent to which all
\nthose vehicles\thad been  used\tduring\tthe  elections.\t The
\nreturned candidate,  R1W1,  was\t not  even  asked  a  single
\nquestion regarding  the extent\tof the\tuse of the different
\nvehicles to  determine the  mileage- run  in respect of each
\none of\tthose vehicles.\t No explanation was even sought from
\nhim regarding  the oil-petrol  ratio or as to why so much of
\noil  had   been\t purchased  for\t so  little  fuel.  In\tthis
\nconnection,it is  also relevant to note that PW33 Shri Vijay
\nRathi, the  Accountant of Raj Automobiles, had been summoned
\nby the\tappellants alongwith  the record presumably to prove
\nthe excess  sale of  1180 litres  of petrol,  apart from the
\nfuel shown in bill Nos. 401, 402, 403 and 404 but the record
\nwas never  got exhibited  and there  is , thus, force in the
\nsubmission of  Mr Manohar,  learned counsel for the returned
\ncandidate that\ta presumption  should be  drawn against\t the
\nappellants to  the effect  that the  summoned  record  being
\ninconvenient was  not got  exhibited by\t the appellants. The
\nobservation of\tthe High  Court, under the circumstances, to
\nthe effect  that Raj  Automobiles had  suppressed the record
\ndoes not  appear to  be well  founded as the summoned record
\nhad been  brought by  PW33 to  the court but the party chose
\nnot to get the same exhibited and no fault can be found with
\nRaj Automobiles
\n     The  High\t Court,\t as   already  noticed,\t  found\t the
\nsuppression of\tRs.18,277.60 on the calculation based on the
\nquantity of petrol purchased for vehicle No.
\nMH-31-G-1722. The  total petrol\t purchased for\tthat vehicle
\nwas shown  as 470 litres and the amount of oil purchased for
\nthat was shown to be 22 litres.\n<\/p>\n
Obviously, the\tratio of  oil-petrol as\t deposed to  by Shri
\nBaidya PW53,  does not\tappear to  have any  relation to the
\npetrol-oil ratio  for the  said vehicle. On the basis of the
\nratio as  deposed to  by PW53,\tmore than  50 litres  of oil
\nshould have  been consumed for this vehicle. The High Court,
\nas already  observed, calculated  the cost  of 470 litres of
\npetrol as Rs.6927.80 and than multiplied it by 3 and arrived
\nat the\tfigure of  Rs.20,783.40 and  deducting an  amount of
\nRs.2505.80, which  had been  shown to  be cost of the petrol
\nused for  the  two  other  vehicles  used  by  the  returned
\ncandidate, determined  the suppression\tat Rs.18277.60,\t but
\nsince the  election petitioners\t had alleged  suppression of
\nthe use of 1180 litres of petrol worth Rs.17,900\/- only, the
\nHigh Court  fastened the  liability on\tthe first respondent
\nnot for the amount of Rs.18277.60 but Rs.17900\/- only
\n     In our  opinion, the  approach of\tthe High  Court\t was
\nwrong and  it fell  into a  complete error  in making  these
\ncalculations which  are not even based on guess work but are
\ntotally conjectural  in nature. The type of exercise done by
\nthe High  Court had  neither any  factual foundation  in the
\nelection petition  nor even  in the evidence. The High Court
\nmade out  a new case neither the one pleaded by the election
\npetitioners nor\t the one  pleaded by the returned candidate.
\nIt was\tnot a permissible course for the High Court to adopt
\nwhile dealing with the allegation of commission of a corrupt
\npractice in an election petition. Since, no evidence was led
\nby the\telection petitioner  about the\talleged purchase  of
\nexcess of  1180 litres\tof petrol,  the High  Court ought to
\nhave found  the issue against the appellants. The finding of
\nthe High  Court is, not on any evidence. Except PW1 who made
\na vague\t statement to  the   effect that  he  had  seen\t the
\nvehicles pleaded  in the  election petition,  on  the  roads
\nthroughout during  the election,  without  indicating  when,
\nwhere and  which vehicle,  on other evidence was produced to
\nshow the  extent to which the other vehicles in question had
\nbeen used  during the  election by  Respondent No.1  or\t his
\nelection agent\tor by  any other  person with the consent of
\nrespondent  No.1   or  his   election  agent.  The  election
\npetitioner could  have examined\t withnesses  from  different
\nsegments of the constituency to depose, if they had seen the
\nreturned candidate or his election agent in that area in any
\nparticular vehicle  and then  number of\t occasions when\t the
\nreturned candidate  had been so seen in different localities
\nin the\tsame or different vehicles to show the extent of run
\nof those  vehicles by bringing out the total distance likely
\nto have\t been covered.\tNo such evidence was led, though the
\nproduction of  such evidence was not an utter impossibility.
\nThat  vehicle\tNo.1722\t (which\t  was  made  the  basis\t for
\ncalculation of\ttotal  run  by\tthe  High  Court)  was\tmore
\nextensively used,  than the  other vehicles  is a  reasonble
\npossibility which  cannot be  ignored. It was incumbent upon
\nthe appellants to prove the sale of 1180 litres of petrol in
\nfavour of  Respondent No.1  by Raj Automobiles as alleged by
\nthem  in  the  election\t petition,  by\tleading\t cogent\t and
\nsatisfactory evidence and they miserably failed to prove the
\nsaid charge,  let alone\t beyond a reasonable doubt. Even the
\nmathematical calculation made by the High Court also appears
\nto be incorect but we need not detain ourselves to point out
\nthe same because of the infirmities pointed out by us in the
\napproach of the High Court. The finding of the High Court on
\nIssue No.4  (V), therefore,  cannot be\tsustained and we set
\naside that  finding and hold that the appellants have failed
\nto prove  Issue No.4  (V) and  consequently the\t addition of
\nRs.17,900.00 in the return of expenditure of respondent No.1
\nwas not\t justified and\tthe said  amount shall\thave  to  be
\nexcluded. The cross-objection to that extent succeeds and is
\nallowed.\n<\/p>\n
ISSUE NO.5 (b) (i) & (ii)
\n     The allegations  of the  election petitioners which led
\nto the\tframing of Issue No.5 (b) (i) and (ii) are contained
\nin paragraphs  2.11 to\t2.14 of\t the election  petition\t and
\nconcern the issuance of voter cards to 1243382 voters in the
\nconstituency by\t the returned  candidate after\tgetting\t the
\nsame printed  at a  cost of Rs.2,25,000\/- from Shakti Offset
\nWorks, appealing  to the electorate to vote for the returned
\ncandidate. Besides,  Respondent No.1 is also alleged to have
\ngot printed  posters of\t different sizes,  namely, one\tlakh
\nposters of  20″x30″; one  lakh\tfifty  thousand\t posters  of
\n18″x23″\t and   seventy\tfive  thousand\tposters\t of  15″x20″
\npropogating his\t candidature and  these posters of different
\nsizes, on  an average of about 300 posters were exhibited at
\neach of\t the 1250 polling booths in the constituency. It was
\nalleged that   in  all 3,25,000\t posters were got printed by
\nthe returned  candidate between\t 25.4.91 and  21.5.91  after
\nincurring an  expense of  Rs.3,40,250.00 for the printing of
\nthe said posters and the first respondent did not include in
\nthe return  of his  election expenses  either the  amount of
\nRs.2,25,000\/-  being   the  cost  of  the  voters  cards  or
\nRs.3,40,250\/- being  the cost of the posters. In the written
\nstatement, while admitting that the appeal made in the voter
\ncards was  to cast  votes in  favour of the first respondent
\nand that the posters were also published for the furtherance
\nof the\tprospects of  the election  of the first respondent,
\nthe  returned\tcandidate  denied   to\thave   incurred\t any
\nexpenditure at\tall on\tprinting and  distribution of either
\nthe voter  cards or  the posters.  According  to  the  first
\nrespondent, he\tlearnt about the printing of about four lakh
\nvoter cards  by the Nagpur City\t District Congress Committee
\nat its\town expense  and also came to know that some posters
\nhad been  got printed  and published by Nagpur City District
\nCongress Committee while some more posters had been supplied
\nby Congress  (I) through  its  sub-organisations,at  various
\nlevels, as  per the  past practice  and as  per the practice
\nbeing followed\tby the\tother parties  also for distribution
\nand that  he had neither authorised nor incurred any expense
\nfor the\t said cards  and posters  and that the same had been
\npublished and  distributed without  his knowledge  let alone
\nhis consent.\n<\/p>\n
     The appellant  Bapat PW1  in his statement deposed that
\nvoter cards  had been  issued about  eight days prior to the
\npoll to\t every voter  as mentioned  in the voters list Ex.74
\nand according  to his estimation the cost of printing of the
\nvoter cards  would be  Rs.2,25,000\/-. In  the course  of his
\nstatement he,
\nhowever, admitted  that in the case of respondent No.2, Shri
\nB. L. Purohit voter cards had also been issued to the voters
\nbut went on to say that the same had been got printed by the
\nBJP at\tits own\t expense and were distributed by the workers
\nof the B.J.P. without any expense being incurred or borne by
\nrespondent No.2\t himself. With\tregard to the publication of
\nthe posters,  he deposed  that the  posters had been used by
\nthe returned  candidate extensively. Specimen of some of the
\nposters were  produced as Ex.75 to Ex.78. PW1, asserted that
\nthe expenditure\t for the  printing of  voter cards  and\t the
\nposters in  the case  of the returned candidate was borne by
\nthe first respondent himself and not by anyone else.\n<\/p>\n
     The appellants  in support\t of their case examined PW41
\nSuresh Deotale\tPresident of  Nagpur Gramin  Congress,\tPW42
\nBaliram Dakhne\tCashier, PW43 Baburao Zade, Secretary of the
\nGramin Congress\t and PW46  Marotrao Kumbhalkar, Treasurer of
\nthe Nagpur  District Congress Committee. The evidence of all
\nthese withnesses however reveals that the Congress Committee
\nhad   incurred\t  the\texpenditure   for   publication\t  of
\nadvertisements, voters\tcards, posters\tetc.  In  connection
\nwith  the   election  of   the\treturned   candidate.  These
\nwitnesses, however, admitted that the Congress party did not
\nmaintain any  account in respect of election expenses either
\nfor the local bodies, Legislative Assemblies, or Parliament.
\nThat  the   work  regarding   the  election  propaganda\t and
\nincurring of  election expenses\t used to be entrusted to one
\nor the other of the office bearers by the Party. In the case
\nof the\telection of  Datta Meghe, the witnesses deposed that
\nthe job\t had been  entrusted to\t PW43  Baburao\tZade.  These
\nwitnesses  further   deposed  that   money  for\t undertaking
\nelection expenses was collected by the Congress Party in the
\nform of\t collection coupons.  That a  part of  the  election
\ncoupons were supplied by the All India Congress Committee in
\nthe demonination  of Rs.2\/-  and Rs.5\/-\t while the rest were
\nprinted at  the\t local\tlevels.\t No  account  was,  however,
\nmaintained of  those coupons. The posters were also supplied
\nby All\tIndia Congress Committee and the Provincial Congress
\nCommittee. PW43,  Baburao Zade stated that Shakti Offset was
\none of\tthe printers who had undertaken the printing job and
\nthat the  orders for printing work had been placed by him on
\nShakti Offset  through Shri Parshonikar. He admitted that he
\nwas a  sitting MLA  at the  time of the election. He however
\nwas not\t aware if  Parshonikar was  the Secretary  of Nagpur
\nShahr Zila  Congress Committee.\t From The  testimony of PW41
\nPresident of  Nagpur Gramin  Congress it  emerges  that\t the
\nmanner of  collection of  funds for  election  purposes\t was
\nthrough\t sale  of  coupons.  The  witness  denied  that\t not
\nmaintaining of any accounts of those coupons, was a practice
\ndevised only  for the  present election but asserted that it
\nwas a  practice which  used to\tbe followed  in all  earlier
\nelections also.\t He went  on  to  add  and  that  when\tShri
\nPurohit, respondent  No.2, was\ta Congress  Candidate in the
\nParliamentary elections\t of 1984  and 1989,  the expense for
\nhis election  propaganda had  been incurred  by the Congress
\nCommittee also\tby raising funds through sale of coupons and
\nthat no\t account had been kept either of the coupons or even
\nof the total expense incurred during those elections. He was
\nemphatic that  the Congress  Committee did  not maintain any
\naccount in  respect of the expenditure incurred by the party
\nin connection  with  the  elections  to\t the  local  bodies,
\nLegislative  Assembly\tor  Parliamentary   elections.\t The
\nevidence of PW42 is almost on the same lines as that of PW41
\nand PW43  in all  material particulars. This witness further
\ndeposed that  he had  learnt from  PW43 Baburao Zade that an
\namount of  Rs. 40000\/- had been paid to Parshionikar towards
\nthe election  expenses and that some posters had been issued
\nby the\tAll India  Congress Committee also. The pass book of
\nthe Gramin  Congress which  was\t produced  by  the  witness,
\nrevealed that  after the withdrawal of an amount of Rs.250\/-
\non 26.9.90,  the next  withdrawal was  only  on\t 10.4.92  of
\nRs.3500\/- and that no other amount had either been deposited
\nor withdrawn by the party from the Bank. The evidence of the
\nwitnesses to  the effect  that funds  for election  expenses
\nwere collected\tby sale\t of coupons  and  donations  and  no
\naccount was  maintained of  the receipt\t and expenses, thus,
\nreceives corroboration from the Bank Pass Book of the Gramin
\nCongress. The testimony of PW43 which supports the testimony
\nof PW41\t reveals that  about  30000  to\t 40000\tvoter  cards
\nbesides some  handbills worth  Rs.2000\/- to  3000\/- had been
\ngot printed  by\t the  Party  through  Shakti  Offset  Works.
\nExplaining the\treason for  not maintaining  any account  of
\nreceipt and expense, the witnesses stated that since persons
\nwho  bought  the  coupons  or  gave  donations\twere  mostly
\nbusinessmen, who  generally paid the amount by cash, and did
\nnot want  any record of the payment made by them to be kept,
\nthe accounts  were not\tmaintained. PW44  Vishnu Dutt Misra,
\nVice-President of  the Nagpur  Nagar Zila  congress and PW45
\nAwari, President  of Nagpur  Nagar Congress Comittee deposed
\non the same lines as PW41 to PW43. PW46 Marotrao Kumbhalkar,
\nthe  Treasurer\t of  the  Party,  further  stated  that\t the
\nresponsibility for  the election  propaganda of the returned
\ncandidate in  the present  case\t had  been  placed  on\tShri
\nParshonikar, who  was made  the Secretary  Incharge  of\t the
\nelections of  Respondent No.1  by the  Party.  According  to
\nPW46. an  amount of  about Rs.14  lakhs had  been  collected
\nthrough donations  and sale  of coupons,  out of which Nagar
\nCongress Committee  had also  got coupons  worth about\tRs.7
\nlakhs printed and the remaining coupons worth Rs.7 lakhs had
\nbeen received from the All India Congress Committee. The job
\nfor giving advertisement to the newspapers etc. on behalf of
\nvarious\t Congress  Committees  and  organisations  had\tbeen
\nentrusted to  Shri Parshionikar.  He admitted  that even  in
\n1989 when respondent No.2, Banwarilal Purohit, had contested
\nthe election  as a  Congress candidate,\t an amount  of about
\nRs.12 lakhs  to Rs.14  lakhs had been collected through sale
\nof coupons  and donations and the same had been spent by the
\nParty for  the furtherance  of the  election  of  Respondent
\nNo.2, Banwarilal Purohit, without maintaining any account of
\nreceipt and expense.\n<\/p>\n
     Ashok Thakre  PW54, the  Manager of Shakti Offset Works
\ndeposed that  none of  the  candidates\thad  approached\t him
\npersonally  for\t  placing  orders   for\t printing  work.  He
\ndisclosed the  names of the persons who had aproached him on
\nbehalf of different candidates to place orders in connection
\nwith  the   printing  of  posters  of  different  sizes,  as
\nreflected in  Ex.75 to\tEx.78 and  asserted that  orders had
\nbeen placed for the same by Shri Parshonikar and the posters
\nhad been  got printed  by Gramin  Congress for which purpose
\nPW43 had  also approached him. He went on to state that Shri
\nParshionikar had  approached him  on behalf  of\t Nagar\tZila
\nShehar Congress\t and that  the printing work was got done by
\nShri Pande  on behalf  of  the\tYuvak  Congress.  PW54\tgave
\ndetails of  the\t various  posters  printed  by\thim  and  by
\nreference to  ledger Ex.738\/9,\tstated\tthat  an  amount  of
\nRs.50000\/- has\tbeen shown  to have  been  credited  to\t the
\naccount by  the President  Nagar Shehr Congress Committee on
\n13.5.91 under  five different  receipts, Ex.744\t to 748, for
\nRs.10000\/- each,  totally Rs.50,000\/- He then deposed that a
\nfurther sum  of Rs.50000\/-  had been  received by  the press
\nfrom Nagpur  Zila Congress Committee, Gramin-Vibhag and that
\na sum  of  Rs.50000\/-  had  also  been\treceived  from\tZila
\nCongress Committee (Yuvak) on 6.6.91 and 23.10.91. An amount
\nof  Rs.10000\/-\t was  received\tfrom  Nagpur  Zila  Congress
\nCommittee (I) Gramin also. That all these amounts were spent
\nfor  the   printing  work   entrusted  by  various  Congress
\nCommittees and\torganisation of\t the propaganda material for
\nthe  election\tof  the\t returned  candidate.  The  returned
\ncandidate in  his deposition  denied to\t have authorised  or
\nincurred any  expense as  alleged by the election petitioner
\nin connection aither with the printing of voter cards or the
\nposters etc.  and maintained  that he had not even taken the
\nresponsibility to reimburse the expenditure on behalf of any
\none and that no expenditure in that behalf had been incurred
\nby any one with his consent either.\n<\/p>\n
     After considering\tthe evidence  in its totality in the
\nlight of  the pleadings\t in the\t election petition,  we find
\nthat the  election petitioner  has not\tadduced any  cogent,
\nsatisfactory or\t reliable evidence  to\testablish  that\t the
\nexpenditure of Rs.2,25,000\/- and Rs.3,40,250\/- as alleged in
\nthe  petition\thad  been   incurred  and\/or  authorised  by
\nrespondent No.1\t for the  printing of  voter cards  and\t the
\nposters. On  the other\thand it\t emerges,  that\t the  entire
\nexpenditure on\tthat behalf  was undertaken and borne by the
\nCongress Party and others and that it was so done as per the
\npast practice also.\n<\/p>\n
     The argument  of Dr.  Ghatate however  is\tthat  Thakre
\nPW54, the  Manager of  Shakti Offset  Works who\t denied\t the
\nreceipt of  any amount from the returned candidate could not
\nbe relied  upon because\t there has  been some tampering with
\nthe record, including the ledger, and therefore it should be
\ninferred that  he was helping the returned candidate. It was
\nsubmitted by  the learned  counsel that even though PW54 was
\nproduced and  examined by the election petitioner, they were
\nnot bound  by his  entire evidence  and\t that  once  it\t was
\nestablished that the record had been tampered with, the onus
\nwould shift  to the  returned candidate\t to show that he was
\nnot responsible\t for the tampering or that the tampering had
\nnot been  done at  his instance. This argument is fallacious
\nand does not impress us at all. There is no material brought
\non the\trecord to  even suggest let alone establish that the
\ntampering had been done in the record at the instance of the
\nreturned candidate. No sound foundation had been laid either
\nin the\tpetition or  in the  evidence which may justify this
\ncourt to  raise the  inference, which  the  learned  counsel
\ninvites us  to draw.  A similar\t argument had been raised on
\nbehalf of  the appellants  in the  trial court\talso and the
\nlearned\t trial\tJudge  found  that  the\t allegation  of\t the
\ntampering of  the record  by  Shakti  Offset  Works  at\t the
\ninstance of  the returned  candidate had  not  at  all\tbeen
\nproved, much  less satisfactorily.  The trial  court rightly
\nfound that  the practice  followed by  all political parties
\nfor printing of voter cards and posters had always been much
\nsimilar and  the amounts  for the  said purpose\t used to  be
\nspent by  the political\t parties by  sale of  coupons and by
\nreceiving  donations  and  even\t when  respondent  No.2\t had
\ncontested the  election as  a Congress\tcandidate  the\tsame
\npractice had  been followed.  The election  petitioners have
\nfailed to  establish any  link between\tthe alleged expenses
\nand the\t returned candidate for printing and distribution of
\nvoters\tcards\tand  posters   and  have   not\tbrought\t any
\ncircumstance  on  the  record  to  show\t that  the  returned
\ncandidate had  any hand\t in the\t tampering of record or even
\nthat the tampering of the record was done for the benefit of
\nthe returned candidate only.\n<\/p>\n
     We wish, however, to point out that though the practice
\nfollowed by political parties in not maintaining accounts of
\nreceipts of the sale of coupons and donations as well as the
\nexpenditure incurred  in connection with the election of its
\ncandidate appears  to be a reality but it certainly is not a
\ngood practice.\tIt leaves  a lot  of scope  for soiling\t the
\npurity of  election by\tmoney influence. Even if the traders
\nand businessmen\t do not\t desire their names to be publicised
\nin view\t the explanation  of the witnesses, nothing prevents
\nthe political  party and  particularly a National party from
\nmaintaining its\t own accounts  to show\ttotal  receipts\t and
\nexpenditure  incurred,\t so  that   there  could   be\tsome
\naccountability. The  practice  being  followed\tas  per\t the
\nevidence introduces the possiblity of receipts of money from
\nthe candidate  himself or his election agent for being spent
\nfor furtherance\t of his\t election, without  getting directly
\nexposed,  thereby   defeating  the   real  intention  behind
\nExplanation I  to Section  77<\/a> of  the Act. It is, therefore,
\nappropriate for\t the Legislature  or the Election Commission
\nto intervene  and prescribe  by Rules  the  requirements  of
\nmaintaining true  and correct  account of  the\treceipt\t and
\nexpenditure by\tthe  political\tparties\t by  disclosing\t the
\nsources of  receipts as\t well. Unless,\tthis  is  done,\t the
\npossibility of\tpurity of  elections being  soiled by  money
\ninfluence cannot  really be ruled out. The political parties
\nmust disclose  as to how much amount was collected by it and
\nfrom whom  and the  manner in which it was spent so that the
\ncourt is  in  a\t position  to  determine  “whose  money\t was
\nactually spent”\t through the  hands  of\t the  Party.  It  is
\nequally necessary  for an  election  petitioner\t to  produce
\nbetter type  of evidence  to satisfy  the court as to “whose
\nmoney it  was” that was being spent through the party. Vague
\nallegations and\t discrepent evidence may only create a doubt
\nbut then the charge of corrupt practice cannot be held to be
\nproved on mere lurking suspicion or doubts.\n<\/p>\n
     Howsoever, undesirable  and objectionable\tthe practice
\nmight be,  the fact  remains that  the evidence\t led by\t the
\nelection petitioners  in this  case does  not establish\t the
\ncharge levelled\t by them  at all.  In  the  absence  of\t any
\ncogent, reliable,  satisfactory and  trustworthy evidence to
\nshow that  the respondent  No.1 or  his election  agent\t had
\nincurred or  authorised the  expenditure as  alleged in\t the
\npetition, the  trial court  rightly found  the issue against
\nthe election  petitioner and  we find  no reason  to take  a
\ndifferent view.\t We therefore,\tconfirm the  findings of the
\nHigh Court on the said issue.\n<\/p>\n
     ISSUE 5 (B) (V)
\n     In para  2.20 of  the election  petition  it  has\tbeen
\npleaded\t that  respondent  No.1\t had  sent  personal  inland
\nletters to  all the  voters residing within the constituency
\nand the\t appellants had\t calculated the\t price of  each such
\nletter as  Rupee One, inclusive of printing and postage. Two
\nof  such  letters,  Annexures  13  and\t14,  containing\t the
\nresidential address of respondent No.1 allegedly received by
\nVijay Shinde  and Vinayak  Gode PW49  were annexed  with the
\nelection petition.  It was  alleged that respondent No.1 had
\nmade an\t appeal through\t the inland letters to the voters to
\ncast their  vote in  his favour\t on 12.6.91.  It was further
\nstated that  though the letters were shown to have been sent
\nby Sarva  Dharma Samajik  Sangathan, the expenditure for the
\nsame was  in fact authorised and incurred by respondent No.1
\nhimself. It  was pleaded  that there  were 1240830 voters in
\nthe constituency and, therefore, respondent No.1 was alleged
\nto have\t incurred an  expenditure of  Rs.12,40,830\/- on\t the
\ninland letters and he had not shown the expenditure incurred
\nby him\tin that behalf in the return of expenditure filed by
\nhim and\t if the\t said amount is included, it would show that
\nthe  returned\tcandidate  had\t incurred   and\t  authorised
\nexpenditure beyond  the prescribed limits and thus committed
\nthe corrupt  practice under  Section 123<\/a>  (6) of the Act. In
\nthe written  statement, the  returned candidate\t denied\t the
\nallegations and\t styled the  same as imaginary and baseless.
\nHe denied  to have  sent any  letter  to  Vijay\t Shinde\t and
\nVinayak Gode,  Annexure 13  and 14 respectively or to anyone
\nelse  in  the  constituency.  The  allegation  that  he\t had
\nincurred an  expenditure of  Rs.12,40,830\/-  was  vehemently
\ndenied.\t Respondent   No.1  stated  that  according  to\t the
\ninformation received  by him  after the\t election, the Sarva
\nDharma Samajik\tSangathan had got printed about two thousand
\nletters similar\t to Annexure  13 and  14 and issued the same
\nwithout his  approval or  consent and the entire expenditure
\nmust have  been borne  by the  Sangathan itself since it was
\nneither authorised  nor incurred  by him  or by his election
\nagent. It  was stated  that the\t allegation in the paragraph
\nwere vague  and\t general  in  nature  and  lacked  essential
\ningredients and\t particulars and  the assention that all the
\nvoters in  the constituency  had received  the letters\tfrom
\nrespondent No.1 was based on speculation and conjectures and
\nnot on facts.\n<\/p>\n
     In the original written statement filed by the returned
\ncandidate in  reply to\tpara 2.20,  it appears that while he
\ndenied the  “sending” of  the inland  letters  identical  to
\nAnnexures 13  and 14,  there was  no specific denial made by
\nhim regarding  his signatures  allegedly appearing  on those
\nletters. In the amended written statement, a specific denial
\nwas also  incorporated stating\tthat the respondent No.1 had
\nnot signed  those letters and that inadvertantly it had been
\nomitted to  be mentioned  in the  earlier written statement,
\nwhile denying  the sending  of the  inland letters. Thus, in
\nthe amended  written statement\tthere was denial both, about
\nthe signatures\tas well as the sending of the letters by the
\nfirst respondent  to the voters. Respondent No.1 also denied
\nto have incurred or authorised any expenditure in connection
\nwith the printing and postage of those inland letters.\n<\/p>\n
     Appellant No.1 Bapat, appearing as PW1 in his statement
\nasserted that each one of the voters in the constituency had
\nreceived such  an inland  letter from  respondent No.  1 but
\nadmitted during\t his cross  examination that  he had no idea
\nwhether the  letters had  actually been\t signed by the first
\nrespondent or  by someone else. The petitioner also examined
\nShri JD\t Kotwal PW56  as the Hand-writing Expert to identify
\nthe signatures\tof Respondent  No. 1  on Annexures 13 and 14
\n(Ex.79 and  80), and  to compare  the same with the admitted
\nsignatures of  the first respondent. The Hand-writing Expert
\nPW56, however,\tdid not\t support the  case of  the  election
\npetitioner and\tdeposed that  no opinion  could be expressed
\nregarding  the\tauthorship  or\totherwise  of  the  disputed
\nsignatures on  Ex.79 and  80 (Annexure\t13 and 14). With the
\ndenial by  respondent No.1  that he had neither signed those
\nletters nor  sent any such letters to the electorate and the
\nevidence of  the Hand-writing  Expert PW56,  the  appellants
\nmust be\t held to  have failed to prove that the letters like
\nAnnexures 13  and 14  were signed by respondent No.1 or that
\nhe  was\t  responsible  for  sending  those  letters  to\t the
\nelectorate. The\t argument of  Dr. Ghatate  that even  if the
\nletters had  not been  signed by  respondent No.1, but since
\nthe same  had been  sent as  an appeal\tto vote\t for him, it
\nshould be  presumed that he was the author and sender of the
\nletters, does  not appeal  to us.  The court can only decide
\nthe case  on the  basis of  the evidence led and not on what
\nought to  have been  led. In  the instant case, the election
\npetitioners have  failed to examine any witness to show that
\nthe letters  (like Annexure 13 and 14) had in fact been sent
\nby respondent  No.1 to\tthe electorate. The letters were, on
\nthe face  of it, sent by the Sangathan. No evidence has been
\nled to\tshow that  the money spent by the Sangathan had been
\nprovided by respondent No.1 either or that the Sangathan was
\na non-existant\tbody. The  allegation has  remained  totally
\nunsubstantiated. It  was certainly  not obligatory  for\t the
\nreturned candidate under the circumstances, to have produced
\nany witness  from the  Sangathan to prove that Sangathan had
\nsent the letters on its own or that it had also incurred the
\nexpenditure  itself.   Since,  the   case  of  the  returned
\ncandidate categorically\t had been  that those  letters\twere
\nneither signed\tby him\tnor sent by him nor did he incur any
\nexpenditure in\trespect thereof,  it was  for  the  election
\npetitioners to\testablish the charge by leading reliable and
\nsatisfactory evidence.\tThe evidence of appellant Bapat PW1,
\nto the\teffect that  he had  made inquiry  from the  Charity
\nCommissioner and  learnt that  there was  no such  Sangathan
\nregistered with\t the Charity  Commissioner, to urge that the
\nSangathan was  a `fake’\t organisation and  was not a genuine
\nsociety, ignores  the fact  that the  registration of such a
\nSangathan is  not necessarily  to  be  done  only  with\t the
\nCharity Commissioners.\tThe petitioner\tadmittedly  made  no
\ninquiry from  any other\t quarter to  find out whether or not
\nthe Sangathan was in fact in existence or not. The intrinsic
\nevidence of the document shows that the letters were sent by
\nthe Sangathan  and keeping  in\tview  the  evidence  of\t the
\nhandwriting expert,  it appears\t that the  letters bore\t the
\nname of `Datta Meghe’ and not his signatures. The petitioner
\ncould have  produced some witness from the Sangathan to show
\nthat no\t such letters  had been\t sent by  the Sangathan. The
\npetitioners did not even summon a witness from the Sangathan
\nalongwith the  record. Had  it been  done and if the summons
\ncould not  be served because of the alleged non-existence of
\nsuch  a\t Sangathan,  it\t may  have  been  possible  for\t the
\npetitioner  to\t argue\tthat   the  Sangathan\twas  a\tfake
\norganisation and  that an  inference may  be drawn  that the
\nletters had  been sent by respondent No.1 at his expense but
\nno such\t inference can\tbe drawn in favour of the appellants
\nin view\t of the\t facts and  circumstances  existing  on\t the
\nrecord. Respondent  No.1 had  disclosed\t the  name  of\tShri
\nBhasme as  one of  the officers\t of  the  Sangathan  in\t his
\ntestimony and  the appellants  should have sought permission
\nof the Court to summon Shri Bhasme at that stage atleast but
\nthey did  not do  so for  reasons best known to them. We are
\nunable to  agree with  Dr. Ghatate, that the evidence should
\nhave been  led by  the\treturned  candidate  to\t prove\tthat
\nactually the  letters had  been sent  by the Sangathan after
\nincurring the expenses itself and the petitioners should not
\nbe expected  to lead  such evidence.  The onus\tto prove the
\ncharge was on the election petitioners and in the absence of
\nany satisfactory  evidence adduced  to discharge  that onus,
\nthe returned candidate was under no obligation to prove that
\nhe was\tnot responsible for committing the corrupt practice.
\nAgain, it  is not  the\tcase  of  the  appellants  that\t the
\nexpenditure had\t been incurred\tby the\tSangathan, with\t the
\nconsent of  the returned candidate or his election agent nor
\nis it  their case that the returned candidate had undertaken
\nto reimburse  the expenditure incurred by the Sangathan. The
\ntrial court,  in our opinion, after properly considering and
\nappreciating the  evidence rightly  found that\tthere was no
\nevidence on  the record\t to support  the plea that the first
\nrespondent had\tspent the  amount as  alleged on the postage
\nand printing  of the inland letters of the type, Annexure 13
\nand 14\t(Ex.79 and  80) or that he had sent those letters to
\nevery voter  in the  constitutency. From the material on the
\nrecord, there  is no  scope even to raise a strong suspicion
\nagainst the  first respondent in that behalf. The appellants
\nappear to  be labouring under the wrong impression that once
\nthey make  an allegation  against  the\treturned  candidate,
\ntheir responsibility  is over  and it  is for  the  returned
\ncandidate  to\tprove  his  innocence.\tIt  is\tagainst\t the
\nessential  principles  of  election  law.  At  the  risk  of
\nrepetition it  may  be\tstated\tthat  where  allegations  of
\ncorrupt\t practice  are\talleged,  it  is  for  the  election
\npetitioners  to\t  prove\t the  charge  against  the  returned
\ncandidate beyond  a reasonable\tdoubt to the satisfaction of
\nthe court. The obligation of the returned candidate to rebut
\nthe allegations\t by leading  evidence arises  only after the
\nelection petitioners have led dependable evidence in support
\nof the\tcharge of  corrupt practice  and not  till then. The
\nappellants have\t in the\t present case  failed to  do  so  in
\nrespect of  the charge\trelating  to  issue  No.5(b)(v)\t and
\naccordingly we\tagree with  the High Court that the returned
\ncandidate was  not required  to refute the charge by leading
\nevidence on  this behalf.  The issue  is accordingly decided
\nagainst the  appellants and  we confirm\t the finding  of the
\nHigh Court.\n<\/p>\n
Issue No. 5(b) (vi) & (vii)
\n     These two\tissues relate  to the publication of certain
\nadvertisements in  various newspapers  such as Nagpur Times,
\nNagpur Patrika, Nav Bharat Times, Tarun Bharat among others.
\nThere is  some connection  between these  issues and  issues
\n6(a), (b)  and (c),  which we  shall deal  with\t separately.
\nAccording  to\tthe  election\tpetitioners,  the   returned
\ncandidate had  opened an  account  with\t Nav  Bharat  Times,
\nNagpur Times  and Nagpur Patrika and had incurred an expense
\nof  Rs.\t  4,89,424.00  for   the  publication\tof   various
\nadvertisements in  connection with  his\t election  in  those
\nnewspapers but\tthe said  amount was  not  included  in\t the
\nreturn of  expenditure and  that had the same been included,
\nthe returned  candidate would  be  shown  to  have  incurred
\nexpenses beyond\t the permissible limits. The break up of the
\namount (Rs. 4,89,424.00) allegedly incurred or authorised by
\nthe returned  candidate as  given by  the appellants  is  as
\nfollows:\n<\/p>\n
(1) Nav Bharat Times\t= Rs. 2,61,274.00
\n(2) Nagpur Times & Nagpur
\n    Patrika\t\t= Rs. 2,28,150.00
\nIt was\talleged in  the election  petition that the returned
\ncandidate had  an account,  Code No.  M-0042 (Ex. 441), with
\nthe Newspaper  Nav Bharat Times and though it was shown that
\nthe  expenses\tfor  the  advertisements  published  in\t the
\nnewspapers were borne by Nagpur District Congress Committee,
\nGramin Congress\t Committee and\tsome other organisations and
\nindividuals, but  in fact  the payments had been made out of
\nthe amounts  provided for  by Respondent  No. 1\t to the said
\nCommittees, organisations  and individuals.  In the  written
\nstatement Respondent  No. 1  denied that  he had incurred or
\nauthorised any\texpenditure himself  or through his election
\nagent in  respect of the various advertisements appearing in
\nNav Bharat Times, Nagpur Times and Nagpur Patrika as alleged
\nin the\telection petition.  It\twas  also  denied  that\t the
\nadvertisements had been published at the instance of or with
\nthe knowledge  of Respondent No. 1 or that he had placed his
\nfunds at  the disposal\tof the party and others to discharge
\nthe  liability\t arising  out  of  the\tpublication  of\t the
\nadvertisements.\n<\/p>\n
     We\t shall\t first\ttake   up  the\tpublication  of\t the
\nadvertisements in  Nav Bharat  Times for which it is alleged
\nthat an\t expenditure of\t Rs.  2,61,274.00  was\tincurred  or
\nauthorised by Respondent No. 1.\n<\/p>\n
     PW6 Narayan  Gawalani, the\t Manager of Nav Bharat Times
\nwhile appearing\t as a  witness for  the election  petitioner
\ndeposed that  the newspaper  receives advertisements through
\nadvertising agencies,  organisations  and  individuals.\t The
\nagencies  which\t  had  released\t advertisements\t during\t the
\nelections were\tPrasad Publicity,  Yugdharma Consultants and
\nCommercial Services  (Y.C.C.S).\t For  Prasad  Publicity\t and
\nY.C.C.S. they  had a  running account  while Congress had no
\nrunning account\t with Nav  Bharat.  He\tthen  explained\t how
\nvarious advertisements\tappearing in  the paper\t came to  be
\npublished and  disclosed the sources from which the same had
\ncome and  also identified  the person  or party who had made
\npayments in  respect of\t those advertisements. He went on to
\ndepose that  whenever the advertisements were received, they
\nwere entered  in a  register called  the “RO Input Register”
\nbut the\t same had  not been  preserved and  had\t since\tbeen
\ndestroyed. That\t there was  no other proof pertaining to the
\nreceipt and  publication of  advertisements. He produced the
\nledger and  proved various  advertisements, release  orders,
\nbills etc.  During his\tcross-examination, he was confronted
\nwith various receipts and he went on to say
\n       “None of\t the advertisements  of which
\n     the total works  out to  Rs. 26690\/-  as
\n     stated   above were   given   by\tDatta
\n     Meghe. The\t  payment also\twas not\t made
\n     by\t      Datta   Meghe\t  for\tthose
\n     advertisements.\t nor  did    he\t take
\n     responsibility\t for   making\tthese
\n     payments.”\n<\/p>\n
While explaining  the document\tEx. 407 and the existence of
\nwords “(Datta Meghe Election advertisements)” written in ink
\nin the copy of Ex. 407, he expressed ignorance as to when or
\nby whom\t those words  were inserted  in the  office copy. He
\nadmitted that in respect of Ex. 409A, the words “Datta Meghe
\nAccount” did  not appear  in the original of the receipt but
\ncould not say as to who had written those words in the copy.
\nThe witness  in\t response  to  the  question  regarding\t the
\nassociation of\tRespondent No.\t2, with\t the partners of the
\nfirm stated
\n       “I know\tRamgopal Maheshwari,  Prakash
\n     Maheshwari. They  are the\t partners  of
\n     the firm\twhich  owns Nav Bharat. It is
\n     true that\ton many\t common social formus
\n     they and  Respondent  No.\t2  Banwarilal
\n     Purohit are  together. I  do not know if
\n     they belong  to  the same\tcommunity. It
\n     is\t  not  true  that  our management has
\n     forged the\t duplicates of\treceipt books
\n     at the  instance of   Banwarilal Purohit
\n     in order  to boster  his false  claim in
\n     the petition.”\n<\/p>\n
     The witness  categorically asserted  that “M  00042” is
\nthe code  number  of  “Datta  Meghe  Election  Advertisement
\nAccount” and  that all payments against the said code number
\nand account  had been  received from  Nagpur Shahar District
\nCongress-I Committee  and that\tno payment was received from
\nDatta Meghe or from anyone else on behalf of Datta Meghe.
\nPW7, Shri  Sapre, Manager,  Accounts of\t Nav  Bharat  Times,
\ndeposed that Manmohan Maheshwari is the Editor of Nav Bharat
\nTimes. That  receipt Ex. 406 was issued first in the name of
\nDatta Meghe  but later\ton it was corrected to show the name
\nof the party as Congress Committee and it was done under his
\ninstructions because  it had been brought to his notice that
\npayment had  not been  made by\tDatta Meghe  but  by  Nagpur
\nShahar Indira  Congress Committee.  He went on to state that
\nthe original  receipt Ex.  406-A  was  signed  by  Kulkarni.
\nExplaining the difference in scoring of certain words in the
\ncarbon copy Ex.406-A and its original Ex. 406-A, the witness
\nstated\tthat   he  had\t scratched  the\t original  name\t and
\nsubstituted it\twith the  name of Shahar Congress Committee.
\nHe, however,  could not\t state as  to who did the scoring in
\nthe original  receipt Ex.  406-A, because  the same  had not
\nbeen done  by him.  When his attention was drawn to a number
\nof other  receipts and\ttheir carbon copies and particularly
\nthe entries thereon, with a view to point out the difference
\nbetween the  entries in\t the originals\tand the\t copies, the
\nwitness stated\tthat  since  receipts  had  been  issued  by
\ndifferent persons  like Kulkarni,  Prabhakar and  others, he
\ncould not  explain the\treason as to why the corrections had
\nbeen made  but asserted\t that the  corrections had  not been
\nmade only  in the case of the receipts concerning Respondent
\nNo. 1  but such corrections had been made also in respect of
\nthe receipts  issued in\t favour of some other candidates and
\nall such  corrections were made in routine. The witness then
\ncategorically admitted
\n     “We do  not have any personal account of
\n     the respondent  No. 1   Datta  Meghe  in
\n     the   account books.   Except   for  the
\n     `Datta  Meghe    Election\tAdvertisement
\n     Account’ there   is  no other account in
\n     Datta Meghe’s  name. The receipt Ex. 406
\n     was fully\twritten\t by Kulkarni  when it
\n     came to  me, and  it bore\tthe two\t bill
\n     numbers,  and that\t was  also  the\t case
\n     with original  Ex.\t  406-A. I   did  not
\n     check up  in whose\t names the  two bills
\n     mentioned therein,\t stood. They had been
\n     checked\t by\tthe\tAdvertisement
\n     Department.”\n<\/p>\n
     PW8 Pannalal  Poddar was working as an Assistant in the
\nadvertisement department of Nav Bharat Times at the relevant
\ntime.  He   deposed  that  a  subsidiary  ledger  was  being
\nmaintained in  the advertisement  department  and  that\t the
\nbills which  were prepared  by the  advertisement department
\nwere entered  in the said ledger against the accounts of the
\nconcerned  parties   and  that\the  used  to  maintain\tthat
\nregister. He  stated that  at page  496 of the ledger, there
\nexists an  account in  the name\t of  “Datta  Meghe  Election
\nAdvertisement Account”\tand that  the said  account had been
\nwritten up  to page 498 under the same title. He stated that
\nout  of\t  the  writing\t“Datta\tMeghe  Election\t Advertising
\nAccount” Nagpur, the words “Datta Meghe, Nagpur” were in his
\nhandwriting but\t the remaining words “Election Advertisement
\nAccount” were  not in  his handwriting and he could not even
\nidentify the  author of\t the words  “Election  Advertisement
\nAccount” in  the above entry. He stated that entry regarding
\nbill No.  9101007  of  May,  1991  for\tRs.  10,000\/-  stood
\noriginally in  the name\t of Datta  Meghe but  that name\t was
\nscored out  later on  but he  could not\t say as\t to who\t had
\nscored out  the name  and susbsituted  the same\t by  “Nagpur
\nCongress”. That the scoring in the enteries had been done in
\nBill Nos.  9101007, 9101343,  9101439 and  9101940  also  by
\nsubstituting the  name of  Datta Meghe\twith Nagpur Congress
\nand Nagpur Shahar Zila Congress-I. He, however, did not know
\nas to who had made the corrections or even the time when the
\nsame had  been made  or the  reason why\t they had been made.
\nDuring his  cross-examination, he  admitted that  there were
\nneither\t any  erasers  nor  corrections\t in  the  subsidiary
\nregister in  regard to the four bills (above noted) and that
\nthe entries  in that  register had  been made  within 5 to 7
\ndays  of   the\tissuing\t  of  the   receipts.  The   witness
\nspecifically admitted  that it\t” is  not possible to say by
\nreferring to  the account  whether payment  was received  in
\nthis account  through  any  other  organisation\t except\t the
\nCongress Committees.”\n<\/p>\n
     Respondent\t No.   1  appearing  as\t R1W1  deposed\tthat
\nParshionikar had  been entrusted  with the  work of  issuing
\nadvertisements on  behalf of  the Congress  Committee.\tThat
\nParshionikar was  a man of his confidence. He denied that he
\nhad  himself   entrusted  any  job  of\tpublication  of\t the
\nadvertisements in the newspapers to Parshionikar. He went on
\nto add\tthat he\t had not  asked Nav  Bharat Times  to open a
\nseparate account  for his election advertisements and denied
\nany knowledge  whether\tNav  Bharat  Times  had\t opened\t any
\naccount as  “Datta Meghe  Account”. He denied the suggestion
\nthat Account  No. M-0042 had been opened by him initially in
\nthe name of “Datta Meghe Account” but was lateron converted,
\nat his\tinstance,  to  the  name  of  “Data  Meghe  Election
\nAdvertisements Account”\t to escape  the rigours\t of law.  He
\nwent on\t to asert that he had not given any advertisement to
\nNav Bharat  Times nor  had he  paid any\t amount to  the said
\npaper.\n<\/p>\n
     Dr.  Ghatate,   learned  counsel\tappearing  for\t the
\nappellants argued  that since  there was  an account  in the
\nname  of   Datta  Meghe,   being  Account  No.\tM-0042,\t and
\nadmittedly the\tDistrict Congress  Committee had  no account
\nwith Nav  Bharat Times,\t the inference\twas obvious that the
\nassertion of  the returned  candidate that  neither  he\t had
\nissued any  advertisements in  Nav Bharat  Times nor  did he
\nmake any  payment for  the same\t or even agreed to reimburse
\nthe  expenses\tincurred  for\tthe   publication   of\t the
\nadvertisements\tin  the\t said  paper  was  not\tcorrect.  He
\nsubmitted that\tthe interpolations  made in  the copy of the
\nreceipt Ex.  406 and  its original Ex. 406-A was a tell tale
\nexample of  the tampering  of the record by Nav Bharat Times
\nwith a\tview  to  help\tRespondent  No.\t 1  to\tconceal\t the
\nincurring  of\texpenditure  by\t him  and  that\t an  adverse
\ninference should  be drawn  that all the scoring etc. by the
\nemployees of  Nav Bharat  Times only  with a  view to favour
\nRespondent No.\t1,  In\tsupport\t of  the  argument,  learned
\ncounsel pointed out that receipt Ex. 406 dated 17.5.1991 was
\ninitially issued in the name of Datta Meghe and subsequently
\nin the\toriginal receipt  Ex. 406A,  where the\tname of\t the
\nparty had  been initially  left blank,\tthe name of Congress
\nCommittee was  written even  though in\tthe carbon copy, the
\nname of the party continued to be shown as Datta Meghe which
\nwas also later on interpolated and substitued to read “Datta
\nMeghe  Election\t  Advertisement\t Account”.  Learned  counsel
\nsubmitted that\tfrom the  fact that the original receipt Ex.
\n406A, was  produced  during  the  cross-examination  of\t the
\nwitness by  the\t counsel  for  Respondent  No.\t1  the\tonly
\nexplanation for\t the original  receipt Ex. 406-A being found
\nin possession of Respondent No. 1, could be that he had made
\nthe payment  and kept the receipt, as otherwise there was no
\noccasion for  the original  receipt to\tbe  found  with\t the
\ncounsel for the returned candidate.\n<\/p>\n
     Thus, wherever  it was  found that\t the involvement  of
\nDatta Meghe  could be  proved, his  name was  scored off and
\nreplaced by  Congress Committee\t etc. by  Nav Bharat  Times.
\nAccording to Dr. Ghatate even if Datta Meghe himself had not
\nplaced any order for issuance of any of to the newspaper, it
\nwas out\t of the\t funds provided by him that the payments had
\nbeen made  and therefore  the returned\tcandidate  would  be
\ndeemed to  have incurred  the said  expenditure. Though\t the
\narguments of  Dr. Ghatate  appear on  the first\t blush to be
\nattractive but\tthey do not bear close scrutiny. Had receipt
\nEx. 406-A,  which is  the original  of receipt\tEx. 406 been
\nwith Respondent\t No. 1,\t containing a  blank entry which was
\nlater on filled up as District Congress Committee showing it
\nas the party making the payment, there was no reason why the
\nsame entry  could not  appear in the carbon copy Ex. 406, if
\nthe employees  from Nav\t Bharat Times  were  out  to  oblige
\nRespondent No.\t1. The\texplanation given  by the  witnesses
\nfrom Nav  Bharat Times regarding the appearance of different
\nnames in the original and the carbon copy, cannot be said to
\nbe  wholly   unacceptable,  particularly   in  view  of\t the
\nattendant circumstances.  The possibility that interpolation
\nwas made  in the  copy of  the receipt\tEx. 406,  to  create
\nevidence against the returned candidate also cannot be ruled
\nout   particularly in  view of the association of respondent
\nNo. 2  with the\t management of\tNav  Bharat  Times.  If\t the
\noriginal Ex.  406A contained  the name of Congress Committee
\nand the\t entry in  the carbon  copy had\t been left blank, it
\ncould have  been filled up by adding the name of Datta Meghe
\nThat apart,  the receipts  Ex. 406-A and its carbon copy Ex.
\n406 relate to payments made in respect of two bills based on
\ntwo distinct  release order.  Neither the correctness of the
\nrelease orders,\t admittedly not\t issued by  Datta Meghe, nor
\nthe authenticity  of the  relevant bills,  which bills again
\nhad not\t been drawn  in the  name of the returned candidate,
\nhas been  doubted by the appellants. Therefore, much capital
\ncannot be  made out  of the difference of the entrfes in the
\noriginal and  the carbon  copy of receipts Ex. 406-A and Ex.
\n406, when  it is  not disputed\tthat Ex.  406  was  actually
\nissued\tin   the  name\tof  Nagpur  Shahar  Indira  Congress
\nCommittee. It  is also\tpertinent to  notice here  that\t the
\nappellants have\t led no evidence whatsoever to show that any
\norder for  advertisement had been placed by Respondent No. 1
\nhimself or  by his  election  agent with Nav Bharat Times in
\nrespect of  either of the two release orders or bills. Not a
\nsingle bill,  out of  the massive  record  produced  by\t the
\nappellants, is\tin the name of the returned candidate. There
\nis not a single receipt of payment issued in the name of the
\nreturned candidate either. The witnesses appearing on behalf
\nof  the\t  petitioners  have   categorically  asserted\twith
\nreference to  the record  that no  amount had  been paid  by
\nRespondent No.\t1 for any of the advertisements published by
\nthem in\t their\tnewspapers.  The  learned  Trial  Judge\t has
\nelaborately  considered\t  various  documents  to  which\t his
\nattention was drawn and the arguments raised on the basis of
\nthe so-called  interpolations etc.  on some of the documents
\nand concluded  that  there  had\t been  some  errors  in\t the
\nmentioning of Code numbers in some receipts etc. But rightly
\nfound  that   the  first   respondent  could   not  be\theld
\nresponsible for\t any of\t those interpolations.\tNo  evidence
\ndirect or  circumstantial has been led by the petitioners to
\nsupport the  charges levelled against the returned candidate
\nto the effect that the returned candidate had provided funds
\nto the party and it was his money which was paid through the
\nhands of  the party.  The allegation has remained absolutely
\nunsubstantiated. As  a matter  of fact,\t the evidence led by
\nthe election  petitioners instead  of supporting their case,
\nhas to\ta large\t extent, demolished  the same  in as much as
\nnone of the witnesses have contradicted the assertion of the
\nreturned candidate  that he  incurred no expense, other than
\nthat which  he had  disclosed in  the return of his election
\nexpense. The  Trial Court  therefore, rightly  held that the
\nexpenses in  respect  of  all  the  advertisements  (subject
\nmatter of  the issues)\twhich were  published in  Nav Bharat
\nTimes could  not be said to have been incurred or authorised
\nby the first respondent. We find that the conclusion arrived
\nat by  the Trial  Court\t is  based  on\tcorrect\t and  proper
\nappreciation of\t the evidence  and learned  counsel for\t the
\nappellants has been unable to point out any flaw or error in
\nthe reasoning of the learned Single Judge of the High Court.
\nWe, accordingly uphold the finding of the High Court.\n<\/p>\n
     We shall  now consider  the allegations  regarding\t the
\nexpenditure  allegedly\t incurred  in  connection  with\t the
\nadvertisements which  appeared in different issues of Nagpur
\nTimes and  Nagpur Patrika  for the  election of the returned
\ncandidate.  It\t is  not   disputed   that   none   of\t the
\nadvertisements were issued by the returned candidate himself
\nnor any\t bill was  drawn against him nor any\t payment was
\nreceived  from\thim.  These  advertisements  appeared  under
\ndifferent names.  For example, the advertisements, Ex. 84\/13
\nand 84\/15  appeared in the name of a “Well Wisher”. The bill
\nfor those  advertisements, Ex.\t474, was drawn by the Nagpur
\nTimes  \/Nagpur\tPatrika\t combined  in  the  name  of  “Nitin
\nFurnitures” and\t the receipt  of payment,  Ex. 475  was also
\ndrawn in  the name of “Nitin Furnitures”, Nagpur. Similarly,
\ntwo advertisements  dated 8.6.1991 published in Nagpur Times
\nbeing  Ex.  84\/14  and\t85\/15,\twere  published\t by  “Punjab
\nWoodcrafts”. The  bills in respect of the same were drawn in
\nthe name  of `Punjab  Woodcrafts’ for  Rs. 15,000\/-  and the
\nreceipt, Ex.  477 dated\t 14.9.1991, also  shows the  name of
\nM\/s. Punjab  Woodcrafts\t as  the  party\t who  had  made\t the
\npayment. The  advertisement issued  in the Nagpur Times, Ex.
\n84\/15 and  in Nagpur Patrika, Ex. 85\/16 were again published
\nby a  “Well Wisher”  and the  bill Ex.\t478 dated 30th June,
\n1991 for  the said  advertisement was  issued in the name of
\n“Ranjit Engineering Works” and the receipt, Ex. 479, for the
\nsame was also issued in the name of Ranjit Engineering Works
\n(by mentioning\tits  Code  No.\tICR-0436).  Again,  for\t the
\nadvertisements published  in Nagpur Times and Nagpur Patrika
\ndated 10.6.1991,  by a\t“Well Wisher”, the bill was prepared
\nin the\tname of\t “Talmale Bandhu”  on 30th June 1991 and the
\nreceipt in respect of the said bill dated 14.9.1991 was also
\nissued in favour of “Talmale Bandhu”.\n<\/p>\n
     The appellants  examined Shri  Mahendra Bangarde  PW 40
\nwho was\t working as  the Finance  Manager with\tNagpur Times
\nsince 1983.  He stated\tthat Ms. Neelima used to work as the
\nData Operator.\tShe, however,  was not\tthe examined  by the
\nappellant. He  proved various  entries in the ledgers, bills
\nand receipts concerning publication of advertisements in the
\nNagpur\tTimes.\t He  did   not\tstate\tthat  any  of  those
\nadvertisements had been published either by Respondent No. 1
\nor by  his election  agent or  that any\t payment in  respect
\nthereof had  been made\tby Respondent  No. 1 or his election
\nagent nor  even that  respondent NO. 1 or his election agent
\nhad taken  the responsibility for making the payment for the
\nconcerned advertisements.\n<\/p>\n
     Santosh Sarode  PW9 was  working as the Manager General
\n(Coordination) with  the Nagpur\t Times at  the relevant time
\nand deposed that he knew about the advertisements which were
\npublished in  the Nagpur Times and Nagpur Patrika during the
\nlast  Lok   Sabha  elections.\tHe  deposed   that   various
\nadvertisements which  had appeared  in the  Nagpur Times  in
\nsupport of  the election  of the returned candidate had been
\npublished at the instance of Shri Parshoinkar, who had taken
\nthe responsibility  for settling  the bills  in\t respect  of
\nthose\tadvertisements. He went on to say that it was at the
\nasking of  Shri\t Parshoinkar  that  bill  Ex.  474  for\t Rs.
\n15,000\/- dated\t30.6.1991 was  drawn in\t the name  of ‘Nitin
\nFurnitures’. The  payment for  the said bill was received on
\n14.9.1991 from Nitin Furnitures. He admitted that the Punjab
\nWoodcrafts had an account with the Newspaper and that it was
\ntheir represntative  who had\t    requested them  for\t the
\npublication  of\t  an  advertisement   for  which  also\tShri
\nParshoinkar had\t taken the responsibility for making payment
\nand that  later on  Shri Parshoinkar  had brought the amount
\nand paid  the same  on\tbehalf\tof  Punjab  Woodcrafts.\t The
\nwitness\t stated\t  that\taccording  to  his  knowledge,\tShri
\nParshoinkar was\t an office  bearer of the Congress Committee
\nand admitted  that payments  for some  other bills also were
\nmade by\t Shri Parshoinkar  on behalf  of various  parties as
\nwell as\t on behalf  of the  Congress Committee. Referring to
\nthe corrections\t made  in  the\tCode  numbers  appearing  in
\ncertain bills,\tthe witness  stated that he had no knowledge
\nas to  who had\tmade those  corrections or  overwritings and
\nwhen the  same were made but categorically asserted that all
\nthe payments  had been\tmade only  by Shri  Parshoinkar. The
\nwitness admitted  that there was an account styled as “Datta
\nMeghe Election Advertisement Account” with his newspaper and
\nthat the  Nagpur Shahar District Congress Committee also had
\na  separate   account  with   his  paper.   Explaining\t the
\ncorrections made  in respect  of recipts No. 779, 825, 1026,
\n1356 which  had been  first shown credited in the account of
\n“Datta Meghe  Election Advertisement  Account”, the  witness
\nstated that  it was  the  Nagpur  Shahar  District  Congress
\nCommittee, who\thad  asked  the\t newspaper  to\tpublish\t the
\nadvertisements and had also undertaken the responsibility to
\nmake the  payment for  the same\t and since the said Congress
\nCommittee had  also an\taccount with them directly, they had
\ntransferred  the   “amounts”  from   “Datta  Meghe  Election
\nAdvertisement Account”\tto  the\t account  of  Nagpur  Shahar
\nDistrict  Congress  Committee,\tas  the\t advertisements\t had
\nactually emanated  from the  Congress Committee and payments
\nhad also  been made  by the  Congress Committee. The witness
\nexplained that\tinitially in  their records  all the amounts
\nwhich  were  being  received  from  Nagpur  Shahar  District
\nCongress Committee  as well  as from Nagpur Gramin Committee
\nwere being  credited in the Account of ‘Datta Meghe Election
\nAdvertisement Account’\tbut lateron  the same were corrected
\nto  accord   with  the\t actualities  and  credited  in\t the
\nappropriate  Account   of  the\tparty  responsible  for\t the
\nadvertisement and  payments. The  witness stated  that since
\nShri  Parshoinkar   had\t brought   the\tpayments   for\t the
\nadvertisements\t from\t the\tNagpur\t  Shahar    District
\nCongressCommittee, Nagpur  Gramin Congress  Committee, Nitin
\nFurnitures, Punjab  Woodcrafts, Ranjit Engineering Works and
\nTalmals Bandhu\tthere had  been\t some  confusion  about\t the
\nmentioning of  the Code\t Numbers in various receipts. During
\nhis, cross-examination,\t the witness  categorically asserted
\nthat  no   payments  were   made  by  Datta  Meghe  for\t the
\nadvertisements which  were released  by Prasad publicity nor
\nhad Datta Meghe taken the responsibility for making payments
\nin respect  of those  advertisements.  Thus,  we  find\tthat
\naccording to  the witnesses  examined  by  the\tpetitioners,
\nneither\t Datta\t Meghe\thad  issued  any  advertisement\t for
\npublication nor\t had he\t made any payments in respect of the
\nadvertisements issued  at the  instance of different parties
\nin the newspapers.\n<\/p>\n
     Respondent No.  1 during  the course of his examination
\nasserted:\n<\/p>\n
       “I  had\t not asked   any of  the news
\n     papers to\t open  an account in  my name
\n     in respect of the advertisements, during
\n     the election   period. Neither did I ask
\n     my election  agent or  any one  else  to
\n     open such\tan account  on my  behalf.  I
\n     have no  account in   my  name  as Datta
\n     Meghe with\t  any  of   the\t news papers,
\n     because   I never\tasked such account to
\n     be opened.\t I learnt  yesterday  that an
\n     account had  been opened  in my  name by
\n     Janvad,   only yesterday.\t I   do\t  not
\n     know   whether   that account  had\t been
\n     opened   during the  election period. It
\n     is not  true that\tI had opened personal
\n     accounts in  my name  with\t Nav  Bharat,
\n     Nagpur Times    and  Nagpur  Patrika  in
\n     relation to  the advertisements   during
\n     the election.  It is not true that I had
\n     asked the\t entries which\tstood  in  my
\n     name   to\t be transferred\t in  the name
\n     of the   Congress\tCommittees. It is not
\n     true   that I   supplied  the  funds for
\n     publishing\t  these\t advertisements\t   to
\n     the    Congress   Committees,   or\t  the
\n     institutions or individuals who made the
\n     payments.”<\/p><\/blockquote>\n
     The assertion  of the  returned candidate finds support
\nfrom the  witnesses produced  by the  petitioners concerning
\nthe advertisements  published in  Nagpur  Times\t and  Nagpur
\nPatrika.\n<\/p>\n
     The argument  raised by  Dr. Ghatate  in respect of the
\nadvertisements published  in Nagpur Times and Nagpur Patrika
\nwas only  a repetition\tof the arguments raised on behalf of
\nthe election  petitiones in  the Trial\tcourt.\tThe  learned
\nSingle\tJudge,\t after\texamining  minutely  various  bills,
\nreceipts, advertisements  and entries in the ledgers etc. as
\nalso analysing\tthe oral  evidence, came  to the  conclusion
\nthat the  election petitioners\thad failed  to establish the
\ncharge levelled\t against Respondent No. 1 to the effect that
\nhe was\tresponsible  for  the  publication  of\tany  of\t the
\nadvertisements or  that he  had incurred  or authorised\t any
\nexpenditure himself  or through\t his election  agent or even
\nthat the  funds allegedly  provided by him had been utilised
\nto discharge  the liabilities. The High Court found that the
\nreturned candidate  could not  be connected  with any of the
\ninterpolations or tampering with the record of the newspaper
\neither and observed :\n<\/p>\n
\t       “The question,\t however,  is
\n     whatever may  be  the reasons  for\t  the
\n     manipulation,   can  the  liability  for
\n     manipulation be   fastened on  the first
\n     respondent.  Merely because there\twas a
\n     change in\t the  names  in the bills and
\n     there was\t every\tgood  reason for  the
\n     name   of\tthe  first respondent, if  it
\n     had     appeared  in     the    original
\n     document being  suppressed\t   and\tthere
\n     was a   Datta Meghe  Advertising Account
\n     0056   in the  book of  Nav Samaj\tLtd.,
\n     it\t cannot\t be  said  that\t   the\tfirst
\n     respondent’s name\t had  appeared in the
\n     original  bill\tand  that,  that  was
\n     removed and  new names were substituted.\n<\/p><\/blockquote>\n
     The    mater  cannot    rest  merely  on
\n     surmises. The persons, who\t had actually
\n     accepted the  advertisements,  were  not
\n     examined.\t Though\t Sarode’s    version,
\n     when  it\tcomes  to   be\tagainst\t  the
\n     interest of  the respondent No. 2. would
\n     have to  be considered   with more\t care
\n     and     caution  for   disbelieving  the
\n     version that  the first  respondent  was
\n     not concerned  with  the  advertisements
\n     some positive evidence was necessary. On
\n     the other\t hand, the  positive evidence
\n     is that   the  first respondent had  not
\n     given  these advertisements  and had not
\n     accepted the   responsibility for\tthese
\n     advertisements.   None    from   Talmale
\n     Bandu,  Punjab    Wood  Craft,    Ranjit
\n     Engineering Works\tand   Nitin Furniture
\n     was called\t  as  a witness\t to show that
\n     they had  not given  the advertisements.\n<\/p><\/blockquote>\n
     If such  evidence were  led,    then  an
\n     inference could  have legitimately\t been
\n     raised that   since  they\thad not given
\n     these advertisements,  they must\t have
\n     been   given by  the  first  respondent,
\n     because he\t would\t be the\t  person  who
\n     would be  really interested in advancing
\n     his   own cause.  on their own, may come
\n     forward for  giving the  advertisements,
\n     without   any apparent  motive,  in  the
\n     circumstances,   though  there    is  no
\n     reason to\tdoubt the  evidence that  the
\n     names in  the  bills  and\tthe  receipts
\n     issued by\tNav   Samaj Ltd.    had\t been
\n     changed in\t order to  conceal  the\t real
\n     advertiser,   I find  that that evidence
\n     by itself is not sufficient  to   clothe
\n     the    first   respondent\t   with\t  the
\n     responsibility\tof     giving\t  the
\n     advertisements.”<\/p><\/blockquote>\n
\t\t\t\t\t    (Emphasis added)
\n     We find  ourselves in complete agreement with the above
\nopinion of  the High  Court.  Relevant\twitnesses  were\t not
\nexamined by  the election  petitioners for reasons best know
\nto them.  The appellants  have offerred no explanation, much
\nless a\tsatisfactory one, as to why those witnesses who were
\nrelevant and  were likely  to shed some light were withheld.
\nThe evidence  led by the appellants is not only insufficient
\nbut also  confusing, contradictory  and often destructive of
\nthe case  set up by the petitioners. We are hesitant, in the
\nface of the evidence on the record, to take a view different
\nthan the  High Court.  On the basis of the above discussion,
\nIssue 5(b)  (vi)&(vii), except\tto the extent we shall refer
\nto  certain  items  lateron,  are  held\t not  to  have\tbeen
\nestablished by\tthe election  petitioners and  the same\t are
\ndecided against them.\n<\/p>\n
Issue No.6 (a).(b)&(c)
\n     In para  2.23 A  of the  amended election petition, the
\ncase projected\tby the\telection petitioners  was  that\t the
\nreturned candidate,  respondent\t No.  1,  had  got  released
\nvarious advertisements\tthrough\t Yugdharma  Consultants\t and
\nCommercial services  for publication in the newspaper ‘Tarun
\nBharat’. A Statement, Annexure 18-A, indicating the bills in
\nrespect\t of   the  advertisements   allegedly  released\t  by
\nrespondent No.\t1 in the said newspaper was filed and it was
\nalleged that  an amount\t of Rs. 2090.00 had been received by
\nTarun Bharat  towards the  advertisement  expenses.  It\t was
\npleaded that though some of the bills had been been drawn in
\nthe name  of respondent\t No. 1 himself and he had been shown
\nto have settled those bills by making payments thereof, some
\nof the\tother bills  were fictitiously shown under the names
\nof certain  dummy organisations\t or individuals,  though the
\npayment\t in   respect  of   each  one\tof  those  items  of
\nadvertisements was  also made  by respondent  No. 1  himself
\nand\/or by his election agent, Shri Sudhakar Deshmukh, during
\nthe period  25.4.1991 to  16.6.1991 and all that expense was
\nsuppressed from\t the return  of election  expenses. In\tpara
\n2.23\/B of  the amended\tpetition, it  was pleaded  that\t the
\nadvertisement details  where of\t were contained in Annexures
\n18-B and  18-C, had  also been\treleased for  publication by
\nrespondent No.\t1 himself and\/or by his election agent or by
\nthe individuals\/organisations and others under the authority
\nof Respondent  No. 1 and or his election agent. to the daily
\nnewspaper Hitvada,  through Orange  city Advertising, Nagpur
\nand prasad  Publicity, Nagpur  respectively and an amount of
\nRs. 40,000\/-  and 23,520\/-  had been paid to Hitvada towards
\nthe charges  of those  advertisements  through\torange\tcity
\nAdvertising and\t prasad Publicity  respectively.  That\teven
\nthough the  bills for  the amount  were drawn in the name of
\ncertain organisations, and individuals actually the payments
\nin respect  of each  one of  the bills,\t had  been  made  by
\nRespondent No.\t1 himself  and\/or his  election agent,\tShri
\nSudhakar Deshmukh,  but the returned candidate had failed to
\ninclude the  said expenditure  in the return of his election
\nexpenses.\n<\/p>\n
     In Paragraph  2.23 C  of the amended election petition,
\nby reference  to the  statement contained  in Annexure 18-D,
\ndetailing  the\t advertisements\t released   through   Prasad
\nPublicity  to  Tarun  Bharat,  it  was\tpleaded\t that  those
\nadvertisements had  been issued\t by  respondent\t No.  1\t for
\npublication in\tTarun Bharat  and an  amount of Rs. 71,440\/-
\nhad been  paid to  Tarun Bharat\t towards the  publication of
\nsaid advertisements  and even  though some of the bills were
\ndrawn in the name of Respondent No.1 himself and he made the
\npayments thereof,  the other  bills  had  been\tfictitiously
\ndrawn in  the name  of certain organisations or individuals,
\nthough in  fact the payment in respect of the same were made
\neither by  Respondent No. 1 himself or by his election agent
\nshri Sudhikar  Deshmukh\t and  that  an\texpenditure  of\t Rs.
\n71.440\/- in  that behalf  was not  included by\thim  in\t the
\nreturn of election expenses.\n<\/p>\n
     The returned  candidate in his written statement, while
\nadmitting the  publication of  some of the advertisements in
\nTarun Bharat,  the expenditure\twhere of he had shown in the
\nreturn of  election expenses,  denied that  he had  made the
\npayments of  Rs. 2090.00  to  Tarun  Bharat  as\t alleged  in
\nparagraph 2.23\tA (Annexure  18A) or  had even asked them to
\npublish the  concerned advertisement. He also denied that he
\nhad authorised\tor incurred  an expenditure  to the  tune of
\nRs.40,000.00 and  23,520.00 as alleged in para 2.23 B of the
\namended election  petition in  respect of the items detailed
\nin Annexure  18 B  and 18  C. In  reply to  para 2.23 C, the
\nreturned candidate  denied to  have incurred any expenditure
\nhimself or  though his\telection agent\tor with\t his consent
\nthrough any  other organisation,  association or  individual
\nfor the advertisements, as itemised in Annexure 18-D, to the
\nelection petition.  He asserted\t that  no  expenditure\twith
\nregard to  the publication of the alleged advertisements had
\nbeen incurred  or authorised  by him  and  he  categorically
\ndenied to  have suppressed any amount from the return of his
\nelection expense.\n<\/p>\n
     We shall first take up for consideration Issue No. 6(c)
\nwhich concerns\tthe  publication  of  seven  advertisements,
\nwhich according\t to the\t election petitioners were issued by
\nthe election  agent  of\t Respondent  No.  1,  Shri  Sudhakar
\nDeshmukh and  Published on  18.6.1991 in  Lok Mat,  Lok\t Mat
\nSamachar, Hitavad,  Nagpur Times, Nagpur Patrika, Nav Bharat
\nand Tarun  Bharat.  The\t said  advertisements  were  “thanks
\ngiving” advertisements.\t The total  expenditure incurred  in
\nrespect of  the same  as alleged  in  the  amended  election
\npetition was  Rs. 39,500\/-.  Some of the advertisements were
\nalleged to  have been directly released to the newspapers by
\nthe election  agent of\tRespondent No.\t1 while\t others were
\nalleged to have been released through prasad Publicity.\n<\/p>\n
     According to  Mr. Manohar,\t the learned  senior counsel
\nfor the\t returned candidate  the expenses  involved  in\t the
\npublication of all these advertisements, even if accepted as
\ntrue and  assumed for  the sake\t of argument  to  have\tbeen
\nincurred or  authorised by  the election agent of Respondent
\nNo. 1,\twere not  required to  be included  in the  election
\nexpenses, as the advertisements had been published after the
\ndeclaration of\tthe result and were not published during the
\ncrucial dates  mentioned in  Section 77 of the Act.According
\nto Dr.\tGhatate, on the other hand, since the advertisements
\nhad appeared in various newspapers on 18.6.1991, it would be
\nreasonable to  presume\tthat  the  advertisements  had\tbeen
\nissued prior  to mid-night  between 17th  June,1991 and 18th
\nJune,1991 and  therefore the  expenditure  involved  in\t the
\npublication of these advertisements would be deemed to be an
\nexpenditure incurred in connection with the election and was
\nrequired  to   be  included   in  the\treturn\tof  election
\nexpenditure.\n<\/p>\n
     As already\t noticed, Section  77(1)<\/a> of the Act mandates
\nthat a\tseparate and  correct account of all the expenditure
\nin connection  with the\t election, incurred or authorised by
\nthe returned  candidate or by his election agent between the
\ndates on  which he  had\t been  nominated  and  the  date  of
\ndeclaration of\tthe results  thereof, both  dates inclusive,
\nshall be  maintained.  The  High  Court,  after\t a  detailed
\ndiscussion of  the submissions\tmade by\t learned counsel for
\nthe parties, which have been reiterated before us also, came
\nto the\tconclusion that\t all the  seven\t advertisements\t for
\nwhich the  total expenditure  of Rs. 39,500\/- was alleged to
\nhave been  incurred or\tauthorised by  the election agent of
\nthe returned  candidate were  “thanks giving” advertisements
\nand were  published after  the\tdeclaration  of\t result\t and
\ntherefore they did not fall within the prohibitory limits of
\nthe time  schedule prescribed in Sub- section (1) of section
\n77<\/a> of the Act and were as such not required to be taken into
\naccount while  computing the  expenses incurred by the first
\nrespondent.\n<\/p>\n
     We are  in agreement  with the  view of  the High Court
\nthat the  advertisements in  question could  not be  said to
\nhave been  issued in  connection with  the election, even if
\nthat expression\t is to be given a wide amplitude. What is it
\nthat the  Legislature intended to achieve by prescribing the
\ninner and  the outer  limits in\t Section 77<\/a>  of\t the  Act  ?
\nObviously, it  was the elimination of money influence during
\nthe elections  and maintaining\tof purity  of elections. The
\nexpenditure incurred  after the declaration of the result of
\nthe election  can possibly  have no nexus with the purity of
\nthe electoral process. The very fact that the advertisements
\nthanked the  electorate for  electing Datta Meghe would show
\nthat the  same could  only have\t been issued for publication
\nafter  the  declaration\t of  Datta  Meghe  as  the  returned
\ncandidate.  The\t expenditure  incurred\tin  that  connection
\ntherefore cannot  be said  to be an expenditure ‘authorised’
\nor ‘incurred’ during the prohibited dates. Indeed, there may
\nbe  cases   where  some\t  expenditure  can  be\tincurred  or
\nauthorised by  a returned  candidate in\t connection with his
\nelection, even\tafter the  declaration\t of the\t result, but
\nunless that  expenditure can  be related  to the  process of
\nelection, authorised  or  incurred  during  the\t prohibitory
\nlimits set  out in  Section 77<\/a>\t(1) of\tthe Act,  it is\t not
\nrequired to  be included in the return of expenses. The mere
\nfact that  the advertisements  appeared in the newspapers on
\nthe very  next day  cannot lead\t to any presumption that the
\nexpenditure in\tconnection therewith  had been\tincurred  or
\nauthorised by  the returned  candidate during the prescribed
\nprohibitory dates  in anticipation  of\this  being  declared
\nelected. We,  agree and uphold the finding of the High Court
\nthat there  was no  nexus between the amount spent on thanks
\ngiving\tadvertisements\t with\tthe   election\t after\t the
\ndeclaration of\tthe result  of election and decide issue No.
\n6(c) against the election petitioners.\n<\/p>\n
     Issue No.\t6(a) arises  out of  the allegations made in
\npara 2.13  of the  election petition and the items contained
\nin Annexures  17 and  18 to  the petition. It deals with the
\nadvertisements allegedly  issued by Respondent No. 1 through
\nM\/s. Yugdharma\tConsultants and\t Commercial Services, Nagpur
\n(for short  ‘YCCS’) to\tpublicise his  candidature. A  chart
\ncontaining 27  items of\t expenditure incurred  in respect of
\nvarious\t advertisements\t published  on\tdifferent  dates  in
\ndifferent newspapers  in connection with the election of the
\nfirst  respondent   were  relied   upon\t to  urge  that\t the
\nadvertisements had  been released  through  two\t advertising
\nagencies namely\t Yogdharma Consultants & Commercial Services
\n(YCCS) and  Prasad  Publicity.\tAccording  to  the  election
\npetitioners Respondent\tNo. 1  incurred\t an  expenditure  of
\nRs.2,74,224\/- on  the advertisements  released through\tYCCS
\nbut the said expenditure has been suppressed by the returned
\ncandidate and if included in the return of election expense,
\nwould show  that the  returned candidate  had committed\t the
\ncorrupt practice as envisaged by Section 123<\/a> (b) of the Act.\n<\/p>\n
     That some\tof the\tadvertisements had been published in
\nvarious newspapers  and had  been released  through YCCS  or
\nPrasad Publicity  has not  been disputed  by learned counsel
\nfor Respondent\tNo. 1  before us.  His argument, however, is
\nthat neither  Respondent No.1 had authorised the publication
\nof those advertisements through YCCS or Prasad Publicity nor
\nhad Respondent\tNo.1 or\t his election  agent  authorised  or
\nincurred  the  alleged\texpenditure  of\t Rs.  2,74,224\/-  in
\nrespect of  those advertisements.  The main  thrust  of\t the
\nargument of  Dr. Ghatate,  appearing for  the appellants, on
\nthe other hand was that in the release orders which had been
\nissued by  YCCS the  name of “Datta Meghe” had been shown as
\nthe client  and, therefore,  it\t was  futile  to  urge\tthat
\nrespondent No.1\t or his\t election agent\t had not incurred or
\nauthorised  the\t  expenditure  in   connection\twith   those
\nadvertisements. Reliance  was placed  on the  advertisements
\nwhich appeared in the issues of Lok Mat and Lok Mat Samachar
\ndated 1.5.1991,\t 2.5.91, 3.5.91, 5.5.91, 6.5.91 and 21.5.91,
\nbeing Ex. 83\/2 to 83\/6, 83\/34, 83\/35, and 83\/91 to argue the
\nexpenditure in\trespect of  the same  had been\tincurred  or
\nauthorised by  respondent No.1.\t We, however,  find that the
\nbills in  respect of  each of  the aforesaid  advertisements
\nwere admittedly\t issued in  the names of persons, other than
\nthe first  respondent. Those had been issued in the names of
\nSushila Bai  Jadav; Nagpur  Nagar Congress  Committee; Yuvak
\nCongress Committee  and Supersteel  Furniture etc.  Even  in
\nrespect of  the advertisements\twhich appeared in the issues
\nof Yugdharma  dated 1.5.91,  3.5.91, 8.5.91 and 11.5.91, the
\nbills had  admittedly been  issued in  the names  of  Nagpur
\nNagar Zila  Congress  Committee.  The  election\t petitioners
\nsought to  connect Respondent  No.1 with  the advertisements
\nissued through\tYCCS by\t pointing out  that the name of Shri
\nDatta Meghe had been shown as the client in those bills and,
\ntherefore, he  alone must be presumed to have discharged the
\nliability arising  out of  those bills either directly or by
\nplacing his funds in the hands of the parties in whose names
\nthe bills  had been  drawn. Reliance  has been placed on the
\nstatement of  Shri Madhukar Kishti, PW 55 by learned counsel
\nfor the appellants in support of his submissions.\n<\/p>\n
     Shri Madhukar  Kishti, PW\t55 was\tat the relevant time
\nthe Managing  Director of Yugdharma Cooperative Society, the
\nparent company,\t which publishes  the daily Yugdharma run by
\nYugdharma Industrial  Cooperative society. Yugdharma Workers
\nNewspapers Pvt.\t Ltd. used  to run the daily Yugdharma prior
\nto it being taken over by the YCCS. It was Yugdharma Workers
\nPvt. Ltd.  who had  constituted YCCS  in March\t1990 as\t the
\nsister\tconcern\t for  routing  advertisements  to  different
\nnewspapers. PW55  deposed that\the used\t to do whatever work
\nwas required  to be  done by  the YCCS.\t He went on to state
\nthat YCCS  released advertisements for publication for Datta
\nMeghe’s candidature  for the Parliamentary Elections of 1991
\nto various newspapers and asserted that those advertisements
\nwere received  by them\tfrom Yuvak  Congress Committee\tetc.
\nExplaining as to how the name of Datta Meghe had appeared in
\ncertain release\t orders against\t the name of the client even
\nthough\tDatta\tMeghe  had   not   released   any   of\t the
\nadvertisements, the  witness stated that since the space had
\nto be  booked in  relation to the election of Datta Meghe in
\nvarious newspapers,  the witness  had, on  his own mentioned
\nthe name  of Datta  Meghe against the name of the client for
\nthe  sake   of\tconvenience,  though  Datta  Meghe  had\t not
\nentrusted any  advertisement to\t YCCS for  publication.\t The
\nwitness added that he had not received any orders personally
\non behalf  of YCCS  from any of the clients of YCCS and that
\nthe orders  used to  be received by Shri Thakre Shri Prakash
\nDeshpande. In  his cross-examination,  the witness, however,
\nconceded that  the name of Datta Meghe had been mentioned in
\ncerain release\torders only  because the  name of the client
\nhad not\t been disclosed\t by the\t party\tand  the  space\t was
\nrequired to be booked in the newspapaers in advance owing to
\nthe rush  of advertisements.  Since, the advertisements were
\nrequired to  be published in connection with the election of
\nDatta Meghe,  he had  shown his name against the name of the
\nclient on  his own  accord.  PW55,  further,  admitted\tthat
\nneither any bill nor any receipt had been issued by the YCCS
\nin the name of Datta Meghe. Thus, we find that PW55 does not
\nadvance the  case of  the election  petitioners at all in so
\nfar  as\t the  allegations  concerning  issue  No.  6(a)\t are
\nconcerned. Besides,  this witness  had no personal knowledge
\nof the\tnature of the transactions on the basis of which the
\nrelease orders\tcame to\t be issued. The election petitioners
\nhad summoned  various release  orders and  other record from
\nthis  witness  to  connect  the\t name  of  Datta  Maghe\t but
\ncuriously enough they were neither exhibited nor got proved.
\nThe other  witnesses, who  could throw\tsome  light  on\t the
\nnature of the transaction, like Shri Thakre and Shri Prakash
\nDeshpande, though summoned, were not examined on this aspect
\nfor reasons  best known\t to them.  The submission of learned
\ncounsel for  the appellants  that the  explanation given  by
\nPW55 regarding\tthe reason  for\t the  name  of\tDatta  Meghe
\nappearing in  some of the release orders is not satisfactory
\ncannot\thelp  the  appellants  because\tthere  is  no  other
\nevidence or  explanation offered by the election petitioner.
\nEven  otherwise\t  the  explanation   appears  to   be  quite
\nplausible. It  was for\tthe election  petitioners to  adduce
\nbetter and  cogent evidence,  direct or\t circumstantial,  to
\nshow that  the returned candidate had incurred or authorised
\neither himself or through his election agent the expenditure
\nin respect  of the advertisements issued by YCCS, as alleged
\nin the\tpetition, but  no such evidence was produced and the
\nallegation has remained unsubstantiated.\n<\/p>\n
     Shri Prakash Despande, PW11, the Deputy General Manager
\nof Hitvada did prove the signatures of PW55 on release order
\nEx. 586\t dated 7.5.1991 but was silent about any transaction
\nbetween YCCS  and the first respondent. Same position exists
\nin respect  of\tother  advertisements  also.  We  need\tnot,
\ntherefore,  detain   ourselves\tto   refer  to\t all   other
\nadvertisements, their  release\torders,\t bills\tor  receipts
\nbecause from the evidence of PW55 it stands established that
\nno payment  for any of the advertisments issued by YCCS came
\nfrom the  returned candidate,  Respondent No. 1 deposed that
\nthe advertisements  had been  issued by\t different  parties,
\nassociations and  individuals and those parties had made the
\nnecessary payments.  The petitioners have led no evidence to
\nshow that  the advertisements  which were  issued under\t the
\nnames of  different parties,  organisations and\t individuals
\nlike Nagpur  Nagar Congress Committee, Indira Brigade, Youth
\nCongress, Phartiva  Sher  Sangathana,  Vidharbha  Professors
\nClub  etc.  were  in  fact  not\t issued\t by  those  parties,
\norganisations, institutions or individuals, by examining any
\nwitness from  such bodies  and, therefore, the argument that
\nthe advertisements,  though shown  to have  been  issued  by
\ndifferent parties and organistions etc., were in fact issued
\nat the\tinstance of  the first respondent or that it was his
\nmoney which  they had  paid to\tdischarge the liabilities in
\nrespect of  these advertisements, has no basis let alone any
\nfoundation. The\t election petitioners have totally failed to
\nbring any material on the record to connect Respondent No. 1
\neither with  the publication  of or  expenditure incurred in
\nrespect of  the various\t advertisements as  alleged  in\t the
\npetition.  Even\t  though   the\t names\t of   the   parties,
\norganisations, associations,  institutions, and\t individuals
\netc.  had  been\t mentioned  in\tthe  advertisements  as\t the
\nsponsors of the advertisements, the election petitioners did
\nnot examine  any one  of them  to elicit from them that they
\nhad not\t issued or  caused to be issued those advertisements
\nor that\t they had  not incurred\t any expense  in  connection
\ntherewith. We  are not\timpressed with the submission of the
\nlearned counsel\t for the  petitioners that  since  identical
\nadvertisements came to be issued simultaneously in different
\nnewspapers on  the same\t date  or  on  different  dates,  an
\ninference should  be raised  that it  was done\tonly at\t the
\ninstance of  the first\trespondent, because he alone was the
\nbeneficiary irrespective of different names of sponsors. The
\nargument has  neither logic  nor  any  basis.  The  election
\npetitioners led no evidence to even create a doubt about the
\nidentity  of  the  sponsors  and  merely  because  identical
\nadvertisements appeared on the same date, it is not possible
\nto hold\t that the  sponsors were  fictitious persons or that
\nthe actual sponsor was the returned candidate himself. It is
\nnot unknown  that during the elections, many sympathisers as
\nwell as\t ‘others’ come forward to support the candidature of
\na  particular\tcandidate  and\t sponsor  and  pay  for\t the
\nadvertisements which  they  get\t published  to\tfurther\t the
\nprospects of that candidate’s election. Moreover, apart from
\nthe returned  candidate, the party which sponsors him as its
\ncandidate is  equally interested  in the  furtherance of the
\nprospects  of\this  election  and  may\t approach  different
\norganisations, associations  or individuals  to sponsor\t and
\npublish the advertisements at their expense in favour of the
\ncandidate and even to suggest to them that the same could be
\ndone by\t availing of  the services of YCCS which was engaged
\nin the propoganda cannot be ruled out. The burden of proving
\nthe issue  was heavy  on the  election petitioners  but they
\nhave miserably\tfailed to discharge the burden. No evidence,
\ndirect or  circumstantial has  been led even to show that it
\nwas the\t money of the returned candidate which had been used
\nby the\tparty, other  associations, institutions or persons,
\nfor  the   publication\tof  the\t advertisements\t in  various
\nnewspapers. The\t evidence on the record does not lead to any
\ninference that it was the first respondent’s money which was
\nused for publication of advertisements and in the absence of
\nsuch an\t evidence, no  responsibility can be fastened on the
\nfirst respondent  in respect  of the expenditure incurred in
\nconnection with\t those\tadvertisements.\t The  learned  trial
\nJudge after  a detailed\t discussion of\tvarious exhibits and
\ntaking into  consideration the\tlaw on the subject concluded
\nthat :\n<\/p>\n
     ………………………………….<\/p>\n
      ” Datta  Meghe’s\tconnection  with  the
\n     advertisements released  by    YCCS  has
\n     not been  established, and\t there is  no
\n     other evidence   to  show\t  that\tDatta
\n     Meghe either  incurred or authorised the
\n     expenses\t for\tthe    advertisements
\n     released through  YCCS,   and all\t  the
\n     advertisements,   which have been issued
\n     through  the agency of YCCS will have to
\n     be\t left\tout,  while  considering  the
\n     expenses incurred\tor authorised  by the
\n     first respondent Datta Meghe.”<\/p><\/blockquote>\n
\tWe are in complete agreement with the
\n     above conclusions\tand nothing  has been
\n     pointed out before us to persuade us to
\ntake a different view. Issue No. 6(a) is, therefore, decided
\nagainst the election petitioners.\n<\/p>\n
ISSUE NO. 6(b)
\n\t  According to\tthe allegations\t contained  in\tpara
\n2.23-A\tof  the\t amended  election  petition,  the  returned
\ncandidate had, besides releasing advertisements through YCCS
\nin various  newspapers also  utilised the services of Orange
\nCity Advertising,  Nagpur and  Prasad Publicity,  Nagpur for
\npublication  of\t  advertisements  in   connection  with\t the
\nfurtherance of\this elections  in  various  newspapers.\t The
\ndetails of  the advertisements\tallegedly  released  by\t the
\nreturned candidate  to the  newspaper daily  Hitvada through
\nOrange City  Advertising, Nagpur and Prasad Publicity Nagpur
\nwere provided in Annexure 18B and C attached to the election
\npetition. The total amount alleged to have been spent by the
\nreturned  candidate   in  that\t behalf\t was  stated  to  be
\nRs.40,000\/- and\t Rs.23,520\/-. In  para 2.23-B  the  election
\npetitioners averred  that  although,  it  appears  from\t the
\nstatements at  Annex. 18B and 18C that the bills were issued
\nin the\tname  of  certain  organisations,  the\tpayments  in
\nrespect of  each one  of the  bills had in fact been made by
\nrespondent No.\t1 himself  and\/or his  election agent,\tShri
\nSudhakar Deshmukh during the period from 25.4.91 to 16.6.91.
\nIt was\talleged that  the orders  for each  of the  items of
\nadvertisements appearing  in the statements at Anex. 18B 18C
\nwere also  placed by  respondent No. 1 himself and\/or by his
\nelection  agent\t  Shri\t Sudhakar   Deshmukh   or   by\t the
\norganisations and individuals as indicated in the statements
\nat the\tinstance and under the authority of respondent No. 1
\nor his\telection agent.\t Besides  the  election\t petitioners
\nalleged in  para 2.23-C\t that some  more advertisements\t had
\nbeen released  by respondent No. 1 during 25.4.91 to 16.6.91
\nthrough Prasad\tPublicity in Tarun Bharat and an expenditure
\nof Rs.71440\/-  had been incurred therefor which was also not
\ndisclosed by  the returned  candidate in  the return  of his
\nexpense.\n<\/p>\n
     In\t  the\t written   statement,\trespondent   No.   1<\/span><\/p>\n
categorically denied  that the\tadvertisements\tdetailed  in
\nAnnexures 18B  and 18C\thad been  published or issued by him
\nand asserted  that no  expenditure in  that behalf  had been
\nincurred or  authorised by  him or by his election agent. It
\nwas  denied  that  he  had  authorised\tand\/or\tincurred  an
\nexpenditure of\tRs.40000\/- and\tRs.23520\/-  as\titemised  in
\nAnnexure 18B  and 18C.\tSimilarly, it  was asserted  by\t the
\nreturned candidate  that he had not placed orders for any of
\nthe advertisements  detailed in\t Annexure 18D either himself
\nor through  his election  agent nor had he authorised any of
\nthe organisations  or individuals  mentioned in Annexure 18D
\nto get\tpublished the advertisements. It was maintained that
\nno expenditure\twhatsoever with regard to the advertisements
\nitemised in  Annexure 18D were incurred or authorised by the
\nreturned candidate  or by  his election\t agent and therefore
\nthere was  no question\tof disclosing the same in the return
\nof election  expenses.\t  With\tregard to The advertisements
\nallegedly released  through  Orange  City  Advertising,\t the
\nlearned trial Judge has noticed:\n<\/p>\n
       “With  regard   to Issue\t No.6(b), the
\n     learned  counsel\tfor  the  petitioners
\n     stated  that   he\twould  not  be\tin  a
\n     position to  urge that   the expenditure
\n     on the  advertisements introduced in the
\n     expenditure  incurred   by\t  the\tfirst
\n     respondent. I  have already  found\t that
\n     no respondent. I have already found that
\n     no\t  other\t    item    of\t  expenditure
\n     incurred\tthrough\t   prasad  Publicity,
\n     except  what has  been included in issue
\n     no. 5(b) (vi) &  (vii) can\t be included,
\n     and   issue   No.\t 6   (b)  is answered
\n     accordingly.”<\/p><\/blockquote>\n
     Learned counsel for the appellants has not disputed the
\nabove finding  before us  and as  such we  have no reason to
\ntake a view different than the one taken by the High Court.\n<\/p>\n
     We have dealt with in the earlier part of the judgment,
\nthe allegations\t relating to the expenditure incurred by the
\nreturned candidate  through Prasad  Publicity, while dealing
\nwith issues  5(b) (vi) and (vii). We shall now advert to the
\nfindings with  regard to  certain amounts  which  have\tbeen
\nfound to have been suppressed by the returned candidate from
\nthe return of elections expenses.\n<\/p>\n
     The election  petitioners relied  upon the testimony of
\nShri Anant  Shastri PW50,  who used  to carry on the work of
\nadvertising agency  in the  name of  prasad  Publicity.\t The
\nwitness deposed that he knew respondent No.1 and that he had
\nreceived advertisements\t for publication  in the  newspapers
\nfrom several  institutions with\t which respondent  No.1\t was
\nconnected. Those  institutions included\t Radhika  Bai  Meghe
\nMemorial Trust;\t Nagar Yuvak  Shikshan Sanstha; Polytechnic;
\nEngineering College;  Dental College;  Pharmacy and  Medical
\nCollege, being\trun by\tthose institutions. That he had been
\nreleasing the advertisements on behalf of those institutions
\nsince 1984.  He went  on  to  add  that\t payments  had\tbeen
\nreceived for  the publication  of  the\tadvertisements\tfrom
\nvarious\t organisations\t as  also  from\t Nagpur\t Shahr\tZila
\nCongress Committee  and entered\t in a ledger which, however,
\nhad been destroyed by him in the last week of March 1992. He
\nstated that  the account  ledger had  been destroyed  by him
\nbefore he had received the summons to appear in the court as
\na witness in the election petition. According to PW50 he did
\nnot himself  write the\taccount books and that the same were
\nwritten by his accountant Shri Dhale. After referring to the
\ncounter foil  book, PW50  deposed that\tledger folio No. 226
\npertained to the account of Yashwantrao Chauhan Social Forum
\nand that  counterfoil No.003363\t from the  same\t counterfoil
\nbook also  bore ledger\tfolio No.  226 and was issued in the
\nname of Datta Meghe Mitra Mandal. The word “staff” which had
\nbeen written  below “Datta  Meghe Mitra\t Mandal” in the copy
\nhad, however,  been scored out later on. The witness went on
\nto say\tthat counter  foil No.003364  also bore ledger folio
\nNo. 226\t and and  was issued  in the  name  of\tNagpur\tZila
\nCongress Committee.  Counterfoil No.  003365 which also bore
\nledger folio No. 226 was issued in the name of Narayan Ahuja
\nwhile counterfoil  No. 003366 with the same ledger folio No.
\nwas issued  in the name of Rajiv Sena. The witness explained
\nas to  how the\tsame ledger folio No. (226) appeared against
\nvarious counterfoils  and stated  that various organisations
\nwhich had  come forward\t to support the candidature of Datta
\nMeghe and  were releasing  advertisements in  his favour had
\nbeen clubbed  together under  one and  the same ledger folio
\nNo. 226.  He denied  the suggestion that the account against
\nledger folio  No. 226  was of  Datta Meghe  and not  of\t the
\norganisations clubbed together.\n<\/p>\n
     The High  Court after considering the evidence of Anant
\nShastri PW50  in great\tdetails opined\tthat the witness was
\nenjoying the  patronage of  the returned  candidate  and  of
\nvarious institutions  with which  the returned candidate was
\nconnected and  that the\t witness had destroyed the ledger, a
\nmaterial document,  “probably because  those  documents,  if
\nretained, would\t not  have  been  favourable  to  the  first
\nrespondent”. The  High Court  did not accept the explanation
\noffered by  Anant Shastri PW50 regarding the time and reason
\nfor the\t destruction of\t the ledger. The High Court repelled
\nthe argument  of learned  counsel for the returned candidate
\nthat the  release order of prasad Publicity Ex. 225 relating
\nto advertisement  Ex. 88\/1  was suspicious  because the date
\n28.4.91 did  not appear on the carbon copy Ex.712, which had
\nbeen produced  by Anant\t Shastri PW50 presumably because the
\nHigh Court  felt that the witness was favouring the returned
\ncandidate. Similarly,  the High\t Court did  not\t accept\t the
\ncriticism made\tby learned  counsel for\t the  respondent  in
\nrespect of release order No. 5031 dated 28.4.91 in which the
\nname of\t Datta Meghe had appeared in the carbon copy, as the
\nclient, though\tthere was  no mention of the date 28.4.91 on
\nit. The\t High Court  noticed that  though below\t the name of
\nDatta  Meghe,\tthe  word  “Karyalaya”\thad  been  initially
\nmentioned in Ex. 711, the manner in which that word had been
\nwritten would  show that the word “Karyalaya” might not have
\nbeen written on 28.4.91 but on some other date. According to
\nShri Anant  Shastri PW50 the advertisement dated 28.4.91 had
\nbeen given  to him  by Shri  Vasant Parshonikar on behalf of
\nNagpur Nagar Zila Congress and it was for publication of the
\nprogrammes arranged by Nagpur Nagar Zila Congress Committee.
\nThat  he   had\tgiven\tidentical  advertisements   to\tfour
\nnewspapers including Nagpur Patrika and Lokmat. According to
\nthe witness,  the word\t“Karyalaya” had\t been  omitted\tfrom
\nEx.325\tinadvertently  as  he  forgot  to  mention  it.\t The
\nwitness, however, stated that Datta Meghe was not his client
\nfor the\t said advertisement and the words ‘Datta Meghe’ were
\nused only as a caption and the actual bill was issued in the
\nname  of   the\treal  client,  Nagpur  Nagar  Zila  Congress
\nComittee.\n<\/p>\n
     According to  Shri Padmakar  PaunikarPW3, bill  Ex. 156
\nwas issued  to the party on 29.4.91 itself. It was signed by
\nBhojraj PW12  and the  receipt Ex.157  was  also  signed  by
\nBhojraj PW12.  He admitted  that both  the bills EX.227 were
\nprepared on  two different  type-writers and  both bore\t the
\nsignatures of  PW12. he\t Conceded that the three bills dated
\n29.4.91 were  issued on\t three different formats. EX.156 was
\nissued on  the format  Nar kesari  Prakashan  and  disclosed
\nDatta Meghe  as the  client and\t that advertisement had been
\nreleased by  prasad Publicity;\tEX.227 was  on the format of
\nTarun Bharat  and showed  Yashwantrao Chauhan  Forum as\t the
\nparty Concerned;  and EX.  603 was  again on  the format  of
\nTarun Bharat  and showed  Datta Meghe  as the  name  of\t the
\nclient. According  to PW12,  the name of Yashwantrao Chauhan
\nForum was  shown as client in Ex. 227 because they had asked
\nfor the\t bill in the name of Yashwantrao Forum when bill Ex.
\n227 was\t issued. The  witness admitted\tthat all  the  three
\nbills were  identical. The  High Court dealt with this issue
\nrelating to  the advertisement Ex.88\/1 which had appeared in
\nTarun Bharat for a sum of Rs. 1320\/- and observed:\n<\/p>\n
       “If  one\t  were to   go\tonly   by the
\n     different formats\ton which  the\tbills
\n     were   issued   and   different\tnames
\n     which appeared  on the  bills, it\twould
\n     appear that  there was  a good  deal  of
\n     confusion and  on the basis of the bills
\n     themselves,  no   inference    could  be
\n     raised as to who was the real client. If
\n     regard is to be had to the fact that the
\n     original release  orders mentioned\t  the
\n     name   of Datta   Meghe as client, there
\n     was no   reason   for  Tarun  Bharat  to
\n     depart    from    normal  practice\t   of
\n     issuing   the   bills  in\tthe  name  of
\n     Prasad  Publicity\t by    showing\tDatta
\n     Meghe as  the client,  and that seems to
\n     have   been   done\t  with\t  the\t bill
\n     Ex.156)   issued purportedly  on 29.4.91
\n     on the format of Narkeshri Prakashan. By
\n     that   time, the\tforms  of   Narkesari
\n     Prakashan were  being used. It  would be
\n     only when\ta bill\twitha different\t name
\n     would be\trequired  that the  change in
\n     the name  would appear,  and the\t only
\n     person, who  was interested  in having a
\n     bill in  the name\t different  from  the
\n     one used  in the release order, would be
\n     Prasad Publicity  which was  represented
\n     by\t  Anant Shastri. To  the extent\t that
\n     Datta  Meghe’s   name  appeared  in  the
\n     original\trelease order,\tthere  is  no
\n     demur even\t by Anant  Shastri who\twas a
\n     party to the transaction. If his version
\n     that the\tname  of   Datta Meghe\t  was
\n     mentioned\t merely\t  as   a caption  was
\n     true, there   was\tno difficulty for him
\n     to allow  the name\t  of  Datta  Meghe to
\n     continue in  the  original\t bills\twhich
\n     were     issued.  Coupled\t   with\t  the
\n     position that all the original documents
\n     issued by\tTarun Bharat are said to have
\n     been handed   over by  Anant Shastri  to
\n     a person  about whose  identity he\t  was
\n     not   clear, it  is difficult  to accept
\n     the position  that\t  the name  of\tDatta
\n     Meghe in  the release  orders issued  to
\n     Tarun  Bharat   appeared  merely\tas  a
\n     caption.”\n<\/p><\/blockquote>\n
\t  The High Court then opined:<\/p><\/blockquote>\n
       “In view\t of the\t above factum,\tthere
\n     can be  no doubt,\tthough there   was  a
\n     deliberate\t  attempt   to\tdisguise  the
\n     transaction,  that\t    the\t amount\t   of
\n     Rs.1320\/-\t under the   bill  Ex.156 for
\n     the  advertisement\t published  in\tTarun
\n     Bharat dated  21.4.91 (Ex.88\/1)   on the
\n     basis  of\t   which  the  release\torder
\n     (Ex.225),\twas\tpaid   bythe\tfirst
\n     respondent\t  under\t  receipt Ex.157,  on
\n     29.4.91.”<\/p><\/blockquote>\n
     After  hearing   learned  counsel\t for  the   returned
\ncandidate at  length and  going through\t the record,  in our
\nopinion the  finding recorded  by the  High Court  is  quite
\nsound. The  explanation for  appearance of the name of Datta
\nMeghe in the release orders does not appeal to common sense.
\nAnant Shastri did not handover the documents to a ‘stranger’
\nwhose identity\the could not recollect and admittedly he did
\nnot handover  the same\tto Shri\t Parshoinikar. Thus,  in the
\nfacts and  circumstances on  the record,  the High Court was
\nwas right in concluding that the expense for bill No. 156 in
\nrespect of  advertisement EX.  88\/1 had\t been authorised  or
\nincurred by  the returned  candidate. Even  the challenge to
\nthe  said  finding  by\tlearned\t counsel  for  the  returned
\ncandidate before  us was  only half_hearted.  We thus  agree
\nwith the  finding of  the  High\t Court\tand  hold  that\t the
\nreturned candidate  did incur  an expenditure  of Rs. 1320\/-
\nfor Bill EX.156 in respect of the advertisement published in
\nTarun Bharat  Ex.88\/1 but  failed to include the same in the
\nreturn of  his election\t expenses. The\tHigh  Court  rightly
\nincluded that  amount to  the amount disclosed in the return
\nof election expenditure.\n<\/p>\n
     Coming now\t to the\t advertisement which appeared in the
\nElection Special Issue of Tarun Bharat dated 21.5.91 and for
\nwhich an  expenditure of  Rs.7000\/- was alleged to have been
\nincurred by  the returned  candidate, we  find that the plea
\nwith regard  to this  advertisement was\t not raised  by\t the
\nappellants in  the original  election petition\tand was\t not
\neven included in the first amended election petition but was
\nintroduced  for\t  the  first  time  by\tan  amendment  dated
\n18.12.91. In  the verification to the election petition, the
\ncontents of the relevant paragraphs were verified as ‘partly
\nbased  on  personal  knowledge\tand  partly  on\t information
\nrceived from  ……Tarun Bharat…..In\t the affidavit filed
\nin support of the allegations of corrupt practice, again the
\ncontents of  para 2.23\twere verified  as  based  partly  on
\npersonal knowledge  and partly\ton information received from
\nthe  official\trecord\tof   Tarun  Bharat.   The   election
\npetitioner, however,  did not in his deposition disclose the
\nbasis of  his ‘personal knowlege’ for making the allegation.
\nIn the\tpleadings a  wide latitude  was left by the election
\npetitioners  to\t  lead\tevidence   on  any  of\tthe  various
\n‘possibilities’\t detailed  in  the  election  petition.\t The
\n‘vagueness’ of the pleadings even after amendment shows that
\nthe election  petitioners were out on a wild goose chase and
\ntrying to  fish for evidence so as to be able to fasten some
\nliability on the returned candidate or his election agent at
\nleast in  some case. PW39 Laxman Trimbakrao Joshi, the Chief
\nEditor\tof  Tarun  Bharat  was,\t examined  by  the  election
\npetitioners in\tsupport\t of  the  allegations  made  in\t the
\npetition  regarding  publication  of  the  advertisement  in
\nElection Special  Issue of  Tarun Bharat.  He  deposed\tthat
\nTarun Bharat  had decided to issue an Election Special Issue
\nafter  the   elections\twere   announced  and  that  he\t had
\npersonally contacted  Datta Meghe  about 8 to 10 days before
\nthe publication\t of the\t issue on  telephone and  had a talk
\nwith Datta  Meghe personally  and had  requested him for the
\nissuance  of  an  advertisement,  as  he  was  a  contesting
\ncandidate. Datta  Meghe, according  to the witness, had told
\nhim that  he would  think about\t the matter  and admittedly,
\nthereafter, did\t not get in touch with him. The witness went
\non to  state that  an advertisement in support of respondent
\nNo. 1  was published  in Tarun\tBharat dated 21.5.91. It had
\nbeen received  through\tPrasad\tAdvertising  Agency  (Prasad
\nPublicity)  who\t  had  also   supplied\tthe   material\t for
\npublication. The  witness, however, did not know whether the
\nbill for  the advertisement had been prepared in the name of
\nPrasad Publicity  or someone  else nor did he know nor as to
\nwho had\t paid the  bill. He  did not even know as to who had
\ninstructed Prasad Publicity to give the advertisement or who
\nmade the  payment for the same to the Prasad Publicity. This
\nadvertisement Ex.221 is the subject matter of three bill Ex.
\n192 bearing No.4167 (shown as Duplicate); Ex.234 No.4178 and
\nEx.605, No.4167\t (written after\t scoring out  4178). All the
\nbills are  dated 21.5.91.  Where as  in Ex.192, which was on
\nthe format of Narkeshari Prakashan the bill was addressed to
\nPrasad Publicity,  showing Datta  Meghe’s name\tas the party
\nreleasing the  advertisement, Ex.234  was on  the format  of
\nTarun Bharat  and again\t addressed to  Prasad Publicity\t but
\nshowing NSUI  as the  client while  Ex.605 was issued on the
\nformat of Tarun Bharat and was addressed to prasad Publicity
\nand showed  Datta Meghe\t as the client. The High Court after
\nconsidering the\t evidence of  PW3, Paunikar (who had deposed
\nthat Prasad Publicity had not placed the order); PW39 Laxman
\nJoshi, (who  had deposed that the advertisement was received
\nfrom the  Prasad Publicity that the bill had been settled by
\nPrasad Publicity); PW50 Anant Shastri and PW12 Bhojraj, held
\nthat the  advertisement had  been issued by respondent No. 1
\nand that  Anant Shastri\t PW50 had  manipulated the bills and
\nthe record to help the returned candidate.\n<\/p>\n
     We have  carefully perused paragraphs 154 to 157 of the
\njudgment  of  the  learned  trial  Judge  dealing  with\t the
\nquestion of  the expenditure of Rs.7000\/- in connection with
\nthe advertisement  Ex.221 in  the Election Special Issue and
\nthe evidence  on record.  Keeping in  view the difference in
\nthe three  bills relating  to the same advertisement and the
\nuse of\tthese different\t formats by Tarun Bharat, we find it
\ndifficult to  agree with  the High  Court that\tthe election
\npetitioners  have   established\t that  respondent  No.1\t had
\nincurred  the\texpenditure  of\t  Rs.7000\/-  in\t respect  of
\npublication of\tEx.221. The  findings appear  to  be  rather
\nlaboured ones and if Tarun Bharat advertising office was not
\n“very careful  about giving  the particulars  to  the  bills
\nwhich they  issued and\tthat the  bills were not issued from
\nbound  book”   as   observed   by   the\t  High\t Court,\t  no
\nadverse.inference  could   be  drawn  against  the  returned
\ncandidate. Indeed neither Shri Paunikar PW3 nor Bhojraj PW12
\nhad any\t talk with  Datta Meghe\t in respect  of any  of\t the
\nadvertisement and  from the  testimony of PW39 Laxman Joshi,
\nit is  not possible to hold that pursuant to the talk he had
\nwith the  returned candidate,  the advertisement in question
\nhad been published by the returned candidate himself and not
\nby or  on behalf  of NSUI  in whose favour the bill had been
\ndrawn. As already noticed neither in the verification of the
\npetition nor  in the  affidavit, PW39  had been disclosed as
\nthe source of information. The appellants have not explained
\nthe basis  for making  the said\t allegtions. The findings of
\nthe High  Court in  our opinion\t are based  on surmises\t and
\nconjectures and\t we agree  with Mr.  Manohar, learned senior
\ncounsel for  the returned  candidate that in the face of the
\nvague  pleadings   and\tinconclusive  evidence\tled  by\t the
\nelection petitioner  coupled with the discrepent evidence of
\nPW39,  who  admittedly\twas  not  shown\t as  the  source  of
\ninformation for\t the said  allegation, it is not possible to
\nhold that  the advertisement  in question,  Ex.221, had been
\nreleased by  and paid for by Datta Meghe himself. It is also
\nrelevant in  this connection  to note  that no release order
\nhad been got produced by the election petitioners in respect
\nof this\t advertisement which  could disclose  who  the\treal
\nclient was.  We, are  therefore, of  the  opinion  that\t the
\nmaterial on  the record\t was not  sufficient to\t fasten\t the
\nliability for  the publication\tof the\tadvertisement in the
\nElection Special Issue of Tarun Bharat Ex. 221 for Rs.7000\/-
\non the\treturned candidate.  We, accordingly,  set aside the
\nfinding of  the High  Court and\t hold that Rs.7000\/- was not
\nspent by  the returned\tcandidate  for\tthe  publication  of
\nEx.221.\n<\/p>\n
     The High  Court also  found that an amount of Rs.9900\/-
\nin respect  of Ex.258  had been\t suppressed by\tthe returned
\ncandidate from\tthe return  of his  election  expenses.\t The
\nreceipt Ex.258 shows that an amount of Rs.9900\/- was paid on
\n20.5.91 by Sharad Pawar Mitra Mandal for the publications of
\nthe advertisement.  A consolidated  bill had  been issued in
\nthe name  of Sharad  Pawar Mitra  Mandal as  the  publisher.
\nAccording to  PW4,  Ashok  Jain,  the  advertisements  which
\nappeared in  Lokmat and\t Lokmat Samachar  Ex.83\/18 and 83\/19
\ndated  12.5.91\tagainst\t bill  No.257  had  been  given\t for
\npublication by\tNarayan Ahuja and Sharad Pawar Mitra Mandal.
\nThe witness  admitted that  in the bill, the name of Narayan
\nAhuja was  not mentioned  and that  the payment for the bill
\nhad been  made by  Sharad Pawar Mitra Mandal. From a careful
\nconsideration of the observations of the High Court in paras
\n183 to\t187, the  pleadings and the evidence in that behalf,
\nwe find\t that recourse\thas been  taken by the learned trial
\nJudge  to   surmises  and   conjectures\t to  hold  that\t the
\nexpenditure had\t in fact been incurred by respondent No.1 in
\nrespect of the said advertisement. There is not even an iota
\nof evidence  on the record to show that the first respondent
\nhad incurred  the expenditure of Rs.9100\/- as alleged by the
\nelection  petitioners\tin  their   evidence,\tthough\t not
\nspecifically  pleaded\tin  their   election  petition\tboth
\noriginal and  amended. The  election petitioners  had learnt
\nabout the  role being  played by  Narayan Ahuja\t even before
\nthey filed  the election  petition. It\twas for them to have
\nexamined Narayan  Ahuja to elicit from him as to whose funds
\nhe was\tutilising for  making payments\tfor  publication  of
\nvarious advertisements. The petitioners chose not to examine
\nhim for\t reasons best  known to\t them. We  do not think that
\nthere was  any\tobligation  on\tthe  part  of  the  returned
\ncandidate to  have examined  Narayan Ahuja and lead negative
\nevidence to  the effect\t that no  funds had been provided to
\nhim by the returned candidate and that the payments had been
\nmade by the parties who were responsible for the publication
\nof various  advertisements through  him. The observations of
\nthe High  Court that  Narayan Ahuja was a person “who had no
\nfinancial   or\t political   background\t  for\trepresenting
\norganisations”, is  clearly based on conjectures because the
\nevidence on the record does show that Narayan Ahuja had been
\nworking for  the political  parties and\t without there being
\nany pleading  or evidence  on the  record, it was to say the
\nleast rather  unfair for  the High  Court to  conclude\tthat
\nNarayan Ahuja  had “neither  any financial  status  nor\t any
\npolitical background”.\tWe do  not find it possible to agree
\nwith  the   High  Court\t that  the  returned  candidate\t had
\nsuppressed the\tamount of  Rs.9100\/- in\t respect  of  Ex.221
\n(receipt Ex.258)  and accordingly set aside the said finding
\nof the\tHigh Court,  which is  not based on any satisfactory
\nmaterial on the record.\n<\/p>\n
     The finding of the High Court in respect of some of the
\nitems as  detailed  in\tAnnexures  8  to  15,  involving  an
\nexpenditure  of\t Rs.22900\/-,  in  our  opinion\tare  equally
\nfallacious and\tconjectural. The  same are not based even on
\ncorrect appreciation of evidence. Recourse has been taken to
\nsurmises and  imagination to  return these findings. We find
\nit difficult  to subscribe  to the view of the learned trial
\nJudge which  is not supported by any material on the record.
\nThe positive  evidence led  by the  election petitioners  is
\nthat the  returned candidate  had not himself or through his
\nelection  agent\t  given\t any   of  the\t advertisements\t for
\npublication and\t had not  accepted  any\t responsibility\t for
\nmaking payment\tin respect  of any  of those  advertisement,
\neven  though   the  advertisement   were  issued   for\t the
\nfurtherance of his election prospects. There is no direct or
\ncircumstantial evidence\t led by\t the election petitioners to
\nshow that  the amount paid in the name of Sharad Pawar Mitra
\nMandal had been placed at the disposal of the said Mandal by
\nthe returned  candidate or  his election  agent. There is no
\nevidence even to suggest that respondent No.1 had undertaken
\nthe responsibility of making the payments in connection with
\nthe expenses  incurred by  Sharad Pawar\t Mitra\tMandal.\t The
\nelection petitioners,  for reasons best known to them, chose
\nnot to\texamine any  witness  from  Talmale  Bandhu,  Punjab
\nWoodcraft, Ranjit Engineering Works, Nitin Furniture, Sharad
\nPawar  Mitra   Mandal,\tD.M.M.\t Mandal\t and  various  other
\norganisations under  whose names  either the  advertisements
\nhad been published or who had according to the evidence made
\npayments for  those advertisements  as\tper  the  bills\t and
\nreceipts on  the record.  If any  evidence was\tled  to\t the
\neffect that  none of  the persons,  parties or organisations
\nhad in\tfact issued  the advertisements or they or anyone of
\nthem had  denied the making of any payment, it may have been
\npossible to  argue that\t those advertisements  may have been
\ngot published by the first respondent himself or through his
\nelection agent\tor  through  some  other  persons  with\t his
\nconsent or  with the  consent of  his election\tagent and in
\nthat event  the\t onus  may  have  shifted  to  the  returned
\ncandidate to  explain the  source of  the expenditure and in
\nthe absence of any satisfactory explanation it may have been
\npossible to  draw an  inference that it was the money of the
\nreturned candidate.  Since no  such evidence  was led and no
\nproof was  submitted in\t support of  the alleged charge, the
\nquestion of  shifting of  onus on  the returned candidate to
\nprove his  non-liability did  not  arise.  The\tHigh  Court,
\ntherefore,  was\t not  justified\t in  saddling  the  returned
\ncandidate with\tany expense other than Rs.1320\/- in addition
\nto the\texpenses disclosed  by him  in\tthe  return  of\t his
\nelection expense.\n<\/p>\n
     Thus, on the settled principles extracted in an earlier
\npart of this judgment, we find that the election petitioners
\nhave miserably\tfailed to  discharge  the  onus\t of  proving
\nvarious\t charges  levelled  by\tthem  against  the  returned
\ncandidate regarding the commission of corrupt practice under
\nSection 123<\/a> (6) of the Act. The High Court was, justified in
\nholding that  the returned  candidate had  not committed any
\ncorrupt practice  as envisaged by Section 123<\/a> (6) of the Act
\nand in\tdismissing the\telection petition. However, the High
\nCourt fell  in\terror  in  holding  that  certain  items  of
\nexpenditure totalling  Rs.58,2220\/- had\t been suppressed  by
\nthe returned  candidate and  deserved to  be included in the
\nreturn of  his election\t expense. Except  to the  extent  of
\nRs.1320\/-,  no\tother  liability  can  be  fastened  on\t the
\nreturned candidate  in respect\tof the\tother items  of\t the
\nalleged expenditure  on publication  of advertisements\tetc.
\nThe election appeal consequently fails and is dismissed with
\ncosts. The  cross-objections to\t the extent  indicated above
\nsucceed\t and   are  allowed.   The  costs  are\tassessed  at
\nRs.10000\/-.\n<\/p>\n
     Before parting  with the  judgment we  would,  however,
\nlike to\t express our  disapproval of  the  manner  in  which
\namendments  of\t the  election\t petition  were\t allowed  on
\noccasions more\tthan once and how evidence was allowed to be
\nbrought on  the record\tagainst the  pleadings\tand  settled
\nlegal principles.\n<\/p>\n
     Section 86(5)<\/a> of the Act deals with the amendment of an
\nElection Petition. It lays down that the High Court may upon
\nsuch terms  as to costs or otherwise, as it deems fit, allow
\namendment in  respect of particulars but there is a complete
\nprohibition against  any amendment  being allowed  which may
\nhave the  effect of  introducing either\t material facts\t not
\nalready pleaded\t or of\tintroducing particulars of a corrupt
\npractice not  previously alleged  in the petition. The first
\npart of\t Section 86(5)<\/a> of the Act, therefore, is an enabling
\nprovision while\t the second  part creates a positive bar. Of
\ncourse, the  power of  amendment given\tin the Code of Civil
\nProcedure can  be invoked  by the High Court because Section
\n86<\/a> of  the Act\titself makes  the procedure  applicable,  as
\nnearly as  may be, to the trial of election petition, but it
\nmust not  be ignored that some of the Rules framed under the
\nAct  itself   over-ride\t certain  provisions  of  the  Civil
\nProcedure Code\tand thus,  the general\tpower  of  amendment
\ndrawn from  the Code of Civil Procedure must be construed in
\nthe light  of the provisions of the election law and applied
\nwith  such   restraints\t as  are  inherent  in\tan  election
\npetition. It  appears to  us that  the High  Court  did\t not
\nproperly consider  the provisions  of the election law while
\nrepeatedly allowing  amendments of  the election petition in
\nthe present  case. The\tHigh Court  allowed  an\t application
\nEx.27 filed  by the  election petitioner  for permission  to
\namend the  petition on 28.11.91. Yet another application for
\namendment of  the election petition, Ex.44 was again allowed
\nby the\tHigh Court  on 18.12.91.  The petitioner filed still
\nanother application,  Ex.47A, to  again amend  the  election
\npetition and  the High\tCourt allowed  the same\t on 18.1.92.
\nEven after  the pleadings  were\t completed  and\t the  issues
\nframed on  21st of  January 1992  and a part of evidence had
\nbeen led  by the  parties, the\tHigh Court  allowed one more
\napplication filed  by the  election petitioner No.1, Ex.701,
\nand  permitted\t an  amendment\tof  the\t election  petition,
\napparently to  bring the  evidence in  conformity  with\t the
\npleadings. In  the first  place, the High Court ought not to
\nhave allowed  evidence to be led by the election petitioners
\nwhich was  beyond the pleadings of the parties for no amount
\nof evidence  can cure  a defect\t in the pleadings but it was
\nall the\t more improper\tfor the\t trial court to have allowed
\nthe  pleadings\tto  be\tamended\t so  as\t to  be\t brought  in
\nconformity with the evidence already led in the case. To say
\nthe least,  it was  not a desirable or a proper course to be
\nadopted in  an election\t petition where,  as pointed  out by
\nthis Court  in Jagannath  Vs. Jaswant  Singh (1954 SCR 892),
\nthe statutory  requirements of\tthe law\t of election must be
\nstrictly observed.  Of course, since evidence was allowed to
\nbe led,\t though beyond\tthe pleadings without any objections
\nfrom the  opposite side,  the court could have evaluated and
\nanalysed the  same to  determine the worth of that evidence,
\nwhich in  the facts and circumstances of the case came under
\na cloud\t but to\t allow the amendment of the pleadings with a
\nview to\t confer a `legal status’ on the evidence already led
\nwas to\tsay the\t least improper.  The reasons  given by\t the
\nlearned trial  judge to\t allow the  election petition  to be
\namended repeatedly ignores the sanctity which is attached to
\nthe pleadings  and the\taffidavit filed\t in  support  of  an
\nelection petition,  which under\t law is required to be filed
\nwithin a  prescribed time  and those  reasons do not impress
\nus. We need say no more on this aspect of the case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gajanan Krishnaji Bapat & Anr vs Dattaji Raghobaji Meghe & Ors on 18 July, 1995 Equivalent citations: 1995 AIR 2284, 1995 SCC (5) 347 Author: A Anand Bench: Anand, A.S. (J) PETITIONER: GAJANAN KRISHNAJI BAPAT & ANR. Vs. RESPONDENT: DATTAJI RAGHOBAJI MEGHE & ORS. DATE OF JUDGMENT18\/07\/1995 BENCH: ANAND, A.S. (J) […]<\/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-271875","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGajanan Krishnaji Bapat & Anr vs Dattaji Raghobaji Meghe & Ors on 18 July, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gajanan-krishnaji-bapat-anr-vs-dattaji-raghobaji-meghe-ors-on-18-july-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gajanan Krishnaji Bapat & Anr vs Dattaji Raghobaji Meghe & Ors on 18 July, 1995 - 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