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PETITIONER:

GAJANAN KRISHNAJI BAPAT & ANR.

Vs.

RESPONDENT:

DATTAJI RAGHOBAJI MEGHE & ORS.

DATE OF JUDGMENT18/07/1995

BENCH:

ANAND, A.S. (J)

BENCH:

ANAND, A.S. (J)

MUKHERJEE M.K. (J)

CITATION:

1995 AIR 2284 1995 SCC (5) 347

JT 1995 (5) 410 1995 SCALE (4)469

ACT:

HEADNOTE:

JUDGMENT:

J U D G E M E N T

DR. ANAND. J.

This appeal under Section 116-A of the Representation

of People Act 1951 (hereinafter referred to as the Act). by

two electors is directed against the judgment and order of a

learned Single Judge of the Nagpur Bench of the High Court

of Judicature at Bombay dismissing the election petition.

The returned candidate has also filed cross-objections

challenging those findings which have gone against him. Both

shall be disposed of by this common judgment.

The appellants filed an election petition under Section

80 of the Act challenging the election of respondent No.1,

Dattaji Raghobaji Meghe, the returned candidate from 23

Nagpur Parliamentary Constituency in the elections held for

the Xth Lok Sabha and also sought a declaration to the

effect that respondent No.2 Shri Banwarilal Bhagwandas

Purohit be declared as the duly elected candidate from the

said Constituency after setting aside the election of the

returned candidate. The challenge to the election of

respondent No.1 was mainly based on the allegations of

commission of various corrupt practices by him and/or his

election agent detailed in the petition.

Appellant No.1 was at the relevant time the Vice

President of Bhartiya Janta Party (Nagpur City) Nagpur while

appellant No.2 was a worker of the Bhartiya Janta Party.

Respondent No.2, Shri Banwarilal Bhagwandas Purohit, the

defeated candidate had been sponsored as a candidate by the

Bhartiya Janta Party while respondent No.1 Datta Raghobaji

Meghe, the returned candidate, had been sponsored by

Congress (I). Besides respondents 1 and 2, the other

candidates, who had contested the election and had not

withdrawn their candidatures from the contest, numbering

more than forty two were also joined as respondents to the

election petition.

The main case of the appellants projected before the

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High Court and canvassed before us against the returned

candidate was that the expenditure incurred or authorised by

respondent No.1 or his election agent was much more than

what had been disclosed by him in the return of expenditure

lodged under Section 78 of the Act with the District

Election officer and that huge expenditure incurred by him

in connection with his election had been suppressed. It was

further alleged that though the expenditure incurred in

connection with the election of respondent No.1 was shown to

have been incurred by the political party, some other

sympathetic associations, organisations, individuals,

friends and well-wishers, the said expenditure in fact had

been incurred and/or authorised by respondent No.1 and/or

his election agent and the amount spent by those

organisations had been provided out of the funds made

available by respondent No.1 to those parties for making the

payment and their names were given only to conceal the truth

of the transactions so as to escape from the mischief of

Section 123 (6) of the Act. It was pleaded that some of the

organisations under whose names the advertisements had

appeared, were in fact non-existent and that the individuals

who were shown ostensibly to have incurred some expenditure

for furtherance of the prospects of the election of

respondent No.1, had actually no funds of their own to spend

and respondent No.1 had placed his own funds in their hands

to meet the expenditure. According to the appellants, the

expenditure incurred by respondent No.1 was far in excess of

the limit prescribed by Section 77 of the Act read with Rule

90 of the Conduct of Election Rules 1961 (hereinafter the

Rules') and the return of election expenditure did not

reflect the correct state of affairs. Since respondent No.1

had exceeded the prescribed limit of expense, he was guilty

of committing the corrupt practice under Section 123 (6) of

the Act and his election was, therfore, liable to be

declared void and respondent No.1 also disqualified for

committing the corrupt practice.

Respondent No.1 before filing his written statement

raised a preliminary objection, through Ex.16 and Ex.17, to

the effect that the allegations made in the petition were

vague and that material facts and particulars had not been

supplied and as such the vague pleadings were liable to be

struck off and the election petition rejected under Section

81(3) read with Section 86 of the Act. On 29.10.1991,

however, Ex.16 was rejected while application Ex.17 was

allowed to the extent that the allegations made in the

petition regarding the commission of corrupt practice under

Section 123(2) and (3A) were found to be vague and non-

specific and the pleadings in that connection were directed

to be struck off. Against the order of rejection of the

preliminary objection raised in Ex, 16, respondent No.1

preferred a special leave petition being SLP(c) No.19165-

66/91 in this Court which was dismissed on 20th December

1991 by the following order :

"The special leave petitionis -

dismissed. However,this order will not

prevent him from raising objections,

which are available to him according

to law, when the evidence is made

on the relevant allegations."

Subsequently, an application, Ex. 27, filed by the

appellants for leave to amend the election petition for

correcting certain inadvertant "errors, omissions and slips"

was allowed on 28.11.1991 and the necessary corrections were

carried out in the election petition. Again an application

Ex. 47/A filed by the appellants seeking further amendment

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of the verification clause of the petition was allowed by

the Court on 18.01.1992, after an earlier application, Ex.

44, filed by the appellants seeking amendment of the

election petition had been allowed on 18.12.1991.

A detailed written statement was thereafter filed by

respondent No.1 in which the charges levelled against him in

the election petition were vehemently denied. Respondent

No.1, in respect of certain items of expenditure, took a

specific stand that the expenditure on those items as

detailed by the appellants in the election petition, were

incurred by Nagpur City District Congress Committees and

Nagpur Gramin Congress Committee and not by him. Similarly,

in respect of some other items of expenditure, respondent

No.1 took the plea that the expenditure in respect of those

items was incurred by certain organisations, associations,

individuals, friends and well-wishers, without any authority

or consent of respondent No.1 or his election agent and

completely on their own volitions. In the written statement,

the names of some of the organisations and individuals as

well as the associations of persons and the political party

who had incurred the expenditure were furnished by

respondent No.1. It was maintained by respondent No.1 that

he had not incurred any expenditure besides the one

reflected in the return of election expense and had not

committed any corrupt practice. After the amendments were

carried out by the appellants, the returned candidate,

Respondent No.1 filed yet another application Ex.50 seeking

striking out of some other `vague and non-specific'

pleadings but the same was rejected, though the prayer of

Respondent No.1 to amend the written statement made through

application Ex.49 was allowed on 9.1.1992.

From the pleadings of the parties, the following issues

were framed on 21.1.1992:-

(1)Do the petitioners prove that they

were electors in the election held for

the Tenth Lok Sabha from 23, Nagpur

Parliamentary Constituency?

(2) (a) Do the petitioners prove that

a meeting was held in the office of

the Maharashtra State Handloom

Corporation on 17.5.91 during the

Tenth Lok Sabha Election from 23, Nagpur

Parliamentary Constituency?

(b) Do the petitioners further prove

that the said meeting was addressed by

the respondent No.1?

(c) Do the petitioners prove that in

the said meeting, respondent No.1 had

declared that labour charges for

handloom weavers would be increased by

0.35 paise per sq. metre from June 1991?

(d) Do the petitioners prove that the

said declaration of increase in the

labour charges was made by

respondentNo.1 to hold out promise of

gratification for inducing the weavers

numbering 1,50,000 to vote for the

respondent No.1?

(e) Do the petitioners prove that the

said declaration made by the respondent

No.1 amounts to commission of corrupt

practice within the meaning of

Section 123(1)(A) i.e. bribery?

(f) Do the petitioners further prove

that the said declaration made by

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respondent No.1 also amounts to

undueinfluence constituting commission

of corrupt practice under Section 123(2)

and further amounts to direct or

indirect interference or attempt to

interfere with the free exercise of

electoral rights of the handloom

weavers who were electors in the said

election?

(3) Do the petitioners prove that the

respondent No.1 has not maintained

correct and proper accounts as is

required to be maintained under Section

77 and has incurred expenses in excess

of the limit prescribed thereunder and

thereby committed corrupt practice

under Section 123(6) of the Act?

(4) Do the petitioners prove that the

respondent No.1 incurred more

expenditure than what is disclosed by

him in the return of expenditure

annexed as Annexure 7 to the

petition, on the following items as

alleged in paras 2, 4 to 2.10 of the

petition, on account of the (i)

payments made to Shri Devi Sharda Mangal

Karyalaya, Nagpur, by way of office

rent?

(ii) payments made to M/S Vishwa

Bharti Typing Institute, Nagpur.

(iii) payments made to M/S Prince

Travels, Nagpur, for hiring

autorickshaws and taxis.

(iv) payments made to M/S Pramod

Automobiles, Nagpur.

(v) payments made to M/S Raj

Automobiles, Nagpur.

(5) (a) Do the petitioners prove that

the respondent No.1 has authorised

and/or incurred expenditure on the

undermentioned items which has not

been disclosed in the return of

expenditure annexed as Annexure 7 to the

petition as alleged in paras mentioned

in the petition described against

each item hereunder?

(b)(i) Do the petitioners prove that

printing cards at Annexure 9 indicate

that the same have been published by

Nagpur City District Congress

Committee, Nagpur, but the expenditure

incurred on printing and distribution

of about 15 lacs voter-cards has been

made by respondent No.1 to the extent of

Rs.2,25,000/-. Do the petitioners

further prove that the respondent No.1

has got printed those cards at

Shakti Offset Works, Nagpur and the

said firm received a total amount of

Rs.2,25,000/- from respondent No.1?

(ii) Do the petitioners prove that

respondent 1 got printed 3,25000

posters of different sizes though

those posters show that they were

issued by President, Nagpur District

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Congress Committee and the entire

expenditure of these posters to the

tune of Rs.3,40,250/- was made by

respondent No.1?

(iii) Do the petitioners prove that the

respondent No.1 published his

candidature by large size cut-outs at

places mentioned in Annexure 11

alleged to be prepared by persons whose

names are given in Annexure 10? Do

the petitioners further prove that cost

of these cutouts comes out to

Rs.2,83000/- as given in Annexure 11

and was incurred by respondent No.1 by

paying the same to persons mentioned in

Annexure 10?

(iv) Do the petitioners prove that the

respondent No.1 advertised his

candidature by wall paintings at

different locations at Annexure 12

costing about Rs.88500/-? Do the

petitioners further prove that these

wall paintings work was got executed

by respondent No.1 through painters

and incurred expenditure of it by

payment of charges of painters?

(v) Do the petitioners prove that

about 12,40,830 lettrers such as those

at Annexure 13 $ 14 were got prepared by

the respondent No.1 and were sent to

voters and almost all the voters

received these letters? Do the

petitioners further prove that although

on this letter, it appears that the same

is being sent at the instance of

Sarva Dharma Sambhav Samajik Sanghatna,

trhe expenditure required in fact was

incurred by respondent No.1 to the

extent of Rs.12,40,830/-?

(vi) Do the petitioners prove that

advertisement in newspapers at Annexure

A at Sl. Nos.A2, A5, A7, A8, A10, A14 to

A19, A22 to A27, A28(b), A30(a)

(first part) A30 (b) (second part);

Annexure B at Sl. Nos. B4 to B9, B11 to

B14,B17 and B18, Annexure C at Sl.

Nos. C1, C2, C4, C5, C10,C12, C14 to

C18, C23 $ C24. Annexure D: at Sl. Nos.

D1, D2, D3, D5, D7, D8, D11, D13, and

D15: Annexure E at Sl. Nos. E1, E2, E9,

and E10; Annexure F, At Sl. Nos. F1, F2,

F3, F6, F10, F14 and F16; Annexure G

at Sl. Nos. G1, G2 and G3; Annexure H

at Sl. Nos. H11 to H14, H17, H8, H11

and H17, were published by respondent

No.1 himself in connection with the

election and he himself incurred the

expenditure?

(vii) Do the petitioners prove that the

advertisements appearing in newspapers

at- Annexure A: at S.Nos. A6, A9,

A11 to A13, A20, A21, A27(a), A28,

A30(b) (first part) and A31(b);

Annexure B: At S. Nos. B1, B2, B3,

B10, B15, B16 and B19.

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Annexure C: at S. Nos. C3, C6 to C9,

C11, C13, C19 to C22.

Annexure D: at Sl. Nos. D6, D9, D10,

D12, and D14.

Annexure E: At Sl. Nos. E3 to E8;

Annexure F: at S. Nos. F3, F5, F7 to

F9, F11 to F13 & F15;

Annexure G: at S. Nos. G4 to G8; are

published in connection with election

by the respondent No.1 and the

expenditure of which is incurred by

the respondent No.1 himself though in

the said advertisement the names of

publishers are shown as persons other

than the respondent No.1 as given in

Annexures.

(6) (a) Do the petitioners prove that

the respondent No.1 had employed M/S

Yugdharma Consultant and Commercial

Services, Nagpur to publicise his

candidature and incurred expenditure as

per the details shown in Annexures 17

and 18 alleged in para 2.13 of the

petition.

(b) Do the petitioners prove that

besides the above agency, the

respondent No.1 had employed two other

agencies, namely, Orange City

Advertising and Prasad Publicity for

publishing his candidature by

advertisements issued in the nesspapers

and thereby authorised and incurred

expenditure as per details shown in

Annexure 18A, 18B and 18C and

alleged in paras 2.23A to 2.23D of the

petition?

(c) Do the petitioners prove that

election agent of respondent No.1

incurred total expenditure to the tune

of Rs.39500/- on 14.6.91 and

17.6.91 for publication of

advertisement in connection with the

election?

(7) Do the petitioner prove that the

respondent No.47 did not properly

scrutinise the nomination of the

respondent No.3 and he was allowed to

represent himself as such, althoough

a wireless message dated 26.4.91 to

the contrary was received by the

Returning Officer prior to the

acceptance of the nomination papers from

the Chief Electoral Officer of the

Maharashtra ?

(8) Do the petitioners prove that by

allowing the respondent No.3 to

represent himself as the official

candidate of R.P.I.(k), the result of

the election of the respondent No.1 has

been materially affected?

(9) Are the petitioners entitled to

have inspection of the ballot papers on

the basis of the allegations made in

paras 3.1 to 3.11 of the petition and

the allegations made in paras 1 to 13 of

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Ex.28?

(10) Do the petitioners prove that the

election of the respondent No.1 to the

Tenth Lok Sabha from 23, Nagpur

Parliamentary Constituency is void

on accunt of the commission of

corrupt practices under Section

123(1A) & Section 123(2) and Section

123(6) of the Act?

(11) Do the petitioners prove that the

respondent No.2 has secured majority of

valid votes to entitle him to be

declared as duly elected from 23,

Nagpur Parliamentary Constituency to

the Tenth Lok Sabha?

(12) Do the petitioners prove that

but for the votes obtained by

respondent No.1 by alleged corrupt

practices, the respondent No.2 would

have obtained majority of valid votes

to entitle him to be declared duly

elected ?

(13) whether respondent No.2 can be

declared as duly elected to the Tenth

Lok Sabha from 23, Nagpur Parliamentary

Constituency, Nagpur ?

(14) What order?

After the evidence of some of the witnesses was

recorded on behalf of the appellants, Election Petitioner

No.1 filed an application, Ex. 701 on 27.5.1992, once again

for amending the election petition in the light of the

evidence recorded. Respondent No.1 filed his objections to

the said application through Ex. 834 on 15.6.1992. The

learned Single Judge, allowed the application permitting the

election petitioner to amend the election petition once

again and being of the view that no new issue was required

to be framed on the basis of the proposed amendments

directed that the Respondent No.1 could apply for recalling

any of the petitioners' witnesses for further cross-

examination On 17.6.1992, Respondent No.1 filed an

application Ex. 835 for leave to amend the written statement

which was also allowed. We shall advert to the proceedings

concerning various amendments in the latter part of this

judgment.

The learned Single Judge after conclusion of the

evidence and after hearing learned counsel for the parties

held that the appellants (election petitioners) had proved

that respondent No.1 had not maintained a correct and proper

account of the election expenditure as is required to be

maintained under Section 77 of the Act. It was also found

that respondent No.1 had not shown in his return an

expenditure to the extent of Rs.58220/- apart from the

expenditure shown by him in the return of election

expenditure but since the addition of the said amount, to

the amount of expenditure shown by respondent No.1 in his

return of election expenses, did not exceed the permissible

limit of Rs.1,50,000/-, the returned candidate, respondent

No.1, did not commit any corrupt practice as envisaged by

Section 123(6) and dismissed the election petition but

without any order as to costs in favour of Respondent No.1.

Since, in this appeal learned counsel for the

appellants Dr. Ghatate has confined his case to issues 3,

4(V), 5(b) (i) (ii) (v) (vi) (vii); issue No.6 (a) (b) (c);

and partly Issue No.10, we are, as such, relieved of the

necessity of dealing with the other issues. We confirm the

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findings of the High Court in respect of those issues of

which correctness has not been disputed before us.

The right to elect and the right to be elected are

statutory rights. These rights do not inhere in a citizen as

such and in order to exercise the right certain formalities

as provided by the Act and the Rules made thereunder are

required to be strictly complied with. The statutory

requirements of election law are to be strictly observed

because the election contest is not an action at law or a

suit in equity but it is a purely statutory proceeding

unknown to the common law. The Act is a complete code in

itself for challenging an election and an election must be

challenged only in the manner provided for by the Act. In

Jyoti Basu Vs. Debi Ghosal (1982 (3) SCR 318), this Court

observed:

"A right to elect, fundamental

though it is to democracy, is,

anomalously enough, neither a

fundamental right nor a Common Law

Right. It is pure and simple, a

statutory right. So is the right to

be elected. So is the right to dispute

an election. Outside of statute, there

is no right to elect, no right to be

elected and no right to dispute an

election. Statutory creations they

are, and therefore, subject to

statutory limitation. An Election

petition is not an action at Common

Law, nor in equity. It is a statutory

proceeding to which neither the Common

Law nor the principles of Equity apply

but only those rules which the

statute makes and applies. It is a

special jurisdiction, and a special

jurisdiction has always to be exercised

in accordance with the statute

creating it. Concepts familiar to

Common Law and Equity must remain

strangers to Election Law unless

statutorily embodied. A Court has no

right to resort to them on

considerations of alleged policy

because policy in such matters as

those, relating to the trial of

election disputes, is what the

statute lays down, In the trial of

election disputes, Court is put in a

straight jacket."

Though the election of a successful candidate is not to

be interfered with lightly and the verdict of the electorate

upset, this Court has emphasised in more than one case that

one of the essentials of the election law is to safeguard

the purity of the election process and to see that people do

not get elected by flagrant breaches of the law or by

committing corrupt practices. It must be remembered that an

election petition is not a matter in which the only persons

interested are the candidates who fought the election

against each other. The public is also substantially

interested in it and it is so because election is an

essential part of a democratic process. It is equally well

settled by this Court and necessary to bear in mind that a

charge of corrupt practice is in the nature of a quasi

criminal charge, as its consequence is not only to render

the election of the returned candidate void but in some

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cases even to impose upon him a disqualification for

contesting even the next election. The evidence led in

support of the corrupt practice must therefore, not only be

cogent and definite but if the election petitioner has to

succeed, he must establish definitely and to the

satisfaction of the court the charge of corrupt practice

which he levels against the returned candidate. The onus

lies heavily on the election petitioner to establish the

charge of corrupt practice and in case of doubt the benefit

goes to the returned candidate. In the case of an election

petition, base on allegations of commission of corrupt

practice, the standard of proof is generally speaking that

of criminal trials, which requires strict proof of the

charge beyond a reasonable doubt and the burden of proof is

on the petitioner and that burden does not shift. (See with

advantage : Nihal Singh Vs. Rao Birendra Singh & Anr (1970

(3) SCC, 239); Om Prabha Jain Vs. Charan Das & Anr. (1975

(Supp) SCR, 107); Daulat Ram Chauhan Vs. Anand Sharma (1984

(2) SCR, 419) and Quamarul Islam Vs. S.K. Kanta And Others

(1994 Supp (3) SCC, 5).

By this proposition, however, we should not be

understood to mean or imply that the returned candidate is

absolved from his liability to bring forth evidence on the

record to rebut the case of the petitioner and to

particularly prove such facts which are within his special

knowledge (Section 106 Evidence Act). Though, the nature of

allegations in cases alleging corrupt practices are quasi-

criminal and the burden is heavy on him who assails an

election but unlike in a criminal trial, where an accused

has the liberty to keep silent, during the trial of an

election petition the returned candidate has to place before

the Court his version and to satisfy the Court that he had

not committed the corrupt practice as alleged in the

petition and wherever necessary by adducing evidence besides

giving his sworn testimony denying the allegations. However,

this stage reaches if and when the election petitioner leads

cogent and reliable evidence to prove the charges levelled

against the returned candidate as, only then, can it be said

that the former has discharged his burden. That necessarily

means, that if the election petitioner fails to adduce such

evidence which may persuade the Court to draw a presumption

in his favour the returned candidate will not be required to

discharge his burden by adducing evidence in rebuttal. While

on this point it will be also pertinent to mention that the

election petitioner has stablish the charge by proof beyond

reasonable doubt and not merely by preponderance of

probabilities as in civil action. In Surendra Singh Vs.

Hardayal Singh [AIR 1985 SC 89], this Court held it as

"very well settled and uniformally

accepted that charges of corrupt

practices are to be equated with

criminal charges and proof thereof

would be not preponderance of

probabilities, as in civil action,

but proof beyond reasonable doubt and

if after balancing the evidence adduced

there still remains little doubt in

proving the charge its benefit must go

to the returned candidate.' Various

tests have been laid down by the High

Courts and by this Court to determine

the extent of proof required to

establish a corrupt practice. The most

well accepted test however is that

the charge must be established

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fully to the satisfaction of the

Court. While insisting upon the standard

of strict proof beyond a reasonable

doubt, the courts are not required to

extend or stretch the doctrine to such

an extreme extent as to make it well

neigh impossible to prove any allegation

of corrupt practice and as was said

in Harcharan Singh Vs. Sajjan Singh

[AIR 1985 SC 236] "such an approach

would defeat and frustrate the very

laudable and sacrosanct object of the

Act in maintaining purity of the

electoral process".

We are in respectful agreement with the above view.

Some times direct evidence about the commission of corrupt

practice may not be forthcoming or available and in that

case, the charge may be proved by producing circumstantial

evidence but the courts, in such cases insist, that each of

the circumstances must be proved individually and all the

circumstances put together must point unerringly only to the

hypothesis of the commission of the corrupt practice by the

returned candidate and must not be capable of any other

hypothesis consistent with the innocence of the returned

candidate. (See : Quamarul Islam Vs. S.K. Kanta And Others

(supra); Raj Narain Vs. Indira Gandhi (1976 (2) SCR, 347);

Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others (1975

(4) SCC, 769).

The election law insists that to unseat a returned

candidate, the corrupt practice must be specifically

alleged and strictly proved to have been committed by the

returned candidate himself or by his election agent or by

any other person with the consent of the returned candidate

or by his election agent. Suspicion, howsoever, strong

cannot take the place of proof, whether the allegations are

sought to be established by direct evidence or by

circumstantial evidence. Since, pleadings play an important

role in an election petition, the legislature has provided

that the allegations of corrupt practice must be properly

alleged and both the material facts and particulars provided

in the petition itself so as to disclose a complete cause of

action.

Section 83 of the Act provides that the election

petition must contain a concise statement of the material

facts on which the petitioner relies and further that he

must set forth full particulars of the corrupt practice that

he alleges including as full a statement as possible of the

name of the parties alleged to have committed such corrupt

practices and the date and place of the commission of each

of such corrupt practice. This Section has been held to be

mandatory and requires first a concise statement of material

facts and then the full particulars of the alleged corrupt

practice. So as to present a full picture of the cause of

action.

A petition levelling a charge of corrupt practice is

required, by law, to be supported by an affidavit and the

election petitioner is also obliged to disclose his source

of information in respect of the commission of the corrupt

practice. This becomes necessary to bind the election

petitioner to the charge levelled by him and to prevent any

fishing or roving enquiry and to prevent the returned

candidate from being taken by a surprise. (See: Samant N.

Balakrishna Vs. George Fernandez and others (AIR 1969 SC,

1201).

The jurisdiction to try an election petition has been

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vested in the High Courts. Election petitions are generally

speaking tried by experienced Judges of the High Courts.

Those learned Judges have the benefit of observing the

witnesses when they give evidence. Therefore, the

appreciation of evidence by the High Court is entitled to

great weight. Generally speaking this Court accepts the

findings of fact arrived at by the High Court after

appreciation of evidence. (See Sheodan Singh Vs Mohan Lal

Gautam (AIR 1969 SC 1024). Being the court of First Appeal,

however, this court has no inhibition in reversing such a

finding, of fact or law, which has been recorded on a

misreading or wrong appreciation of the evidence or the law,

but ordinarily and generally speaking this court does not,

as it ought not to, interfere with the findings of fact

recorded by the learned trial Judge of the High Court,

unless there are compelling reasons to do so. It is in the

light of the above settled principles, that we shall

consider the materials on the record and the findings of the

High Court in respect of which challenge has been made

before us.

As already noticed, the appellants confined their

challenge to the findings in respect of some of the issues

only which relate to the commission of corrupt practice of

incurring or authorising expenditure in excess of the

prescribed limits within the meaning of Section 123(6) of

the Act. It would, therefore, be appropriate to consider the

parameters of the alleged corrupt practice before we examine

the findings and the arguments in respect of the relevant

issues.

Section 77 of the Act provides that 'every candidate at

an election shall either by himself or by his election agent

keep a separate and correct account of all expenditure in

connection with the election incurred or authorised by him

or by his election agent between the date of publication of

the notification calling the election and the date of

declaration of the result thereof, both days inclusive,

Explanation (1) which was introduced by the Amendment Act of

1974 declares that any expenditure incurred or authorised in

connection with the election of a candidate by a political

party or by any other association or body of persons or by

any individual, (other than the candidate or his election

agent) shall not be deemed to have been, expenditure in

connection with the election incurred or authorised by the

candidate or by his election agent for the purposes of sub-

section (1) of Section 77. Sub-section (2) of Section 77

provides that the account of election expenses shall contain

such particulars as may be prescribed and sub-section (3)

lays down that the total of the said expenditure shall not

exceed such amount as may be prescribed. Vide Section 78 of

the Act the account of election expenses is required to be

lodged with District Election Officer by every candidate at

an election within thirty days from the date of election of

the returned candidate. The maximum amount of election

expenditure which may be incurred by the candidates for the

parliamentary and Assembly Constituencies has been

prescribed in Rule 90 of the Conduct of Election Rules 1961.

In so far as the Parliamentary Elections are concerned, the

said limit is Rs.1,50,000/-. Under Section 123(6) of the

Act, the incurring or authorising of expenditure in

contravention of Section 77 of the Act amounts to commission

of a corrupt practice. However, every contravention of

Section 77 of the Act does not fall within the mischief of

Section 123(6) of the Act. Neither the violation of sub-

section (1) of Section 77 nor the violation of sub-section

(2) of Section 77 amounts to the commission of the corrupt

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practice under Section 123(6) of the Act. However, Section

77(3) mandates that the total of the expenditure in

connection with the election shall not exceed the prescribed

limit and therefore the provisions of Section 123(6) of the

Act are related only to Section 77(3) of the Act. If a

candidate incurs or authorises expenditure in excess of the

prescribed limits, he commits the corrupt practice under

Section 123(6) of the Act and his election is liable to be

set aside and he also incurs the disqualification of being

debarred from contesting the next election. From a plain

reading of Section 123(6) and 77 including Explanation I to

the Section 77 of the Act, it is therefore clear that in

order to be a corrupt practice, the excessive expenditure

must be incurred or authorised by the candidate or his

election agent. An expenditure incurred by a third person,

which is not authorised by the candidate or his election

agent is not a corrupt practice. In Magh Raj Patodia Vs R.K.

Birla, [AIR 1971 SC 1295] after referring to a catena of

authorities even before the inclusion of Explanation I to

Section 77 of the Act by the Amendment Act 58 of 1974, it

was emphasised that to prove the corrupt practice of

incurring or authorising expenditure beyond the prescribed

limit, it is not sufficient for the petitioner to merely

prove that the expenditure beyond the prescribed limit had

been incurred in connection with the election of the

returned candidate, but he must go further and prove that

the excess expenditure was authorised or incurred with the

consent of the returned candidate or his election agent. In

Raj Narain Vs. Indira Gandhi (1976 (2) SCR 347) this Court

reaffirmed the above view and taking note of the Amendment

Act 58 of 1974, opined that voluntary expenditure incurred

by friends, relations, or sympathisers of the candidate or

the candidates' political party are not required to be

included in the candidate's return of expenses, unless the

expenses were incurred in the circumstances from which it

could be positively inferred that the successful candidate

had undertaken that he would reimburse the party or the

person who incurred the expense. It is not enough to prove

that some advantage accrued to the returned candidate or

even that the expenditure was incurred for the benefit of

the returned candidate or that it was within the knowledge

of the returned candidate and he did not prevent it, to

clothe the returned candidate with the liability of

committing the alleged corrupt practice. Noticing that

during an election, the sponsoring or supporting political

parties as well as friends, sympathisers and well-wishers do

sometimes inour expenditure not only without the consent of

the concerned candidate but even without his knowledge this

court opined that the successful candidate cannot be clothed

with all such expenses to suffer the disqualification.

In P.Nalla Thampy Vs. Union of India [AIR 1958 SC

1133], a Constitution Bench of this Court examined the

validity of Explanation (1) to Section 77 (1) of the Act

(introduced in 1974) and Chandrachud CJ (as he then was)

while upholding its constitutionality, observed:

"In any democratic system of

Government, political parties occupy a

distinct and unique place. They are

looked upon as guardian angles by

their members., though, occasionally,

they fail to discharge the benign

role of guardian, leave alone the

angelic part of it. It is through them

that the generality of the people

attempt to voice or ventilate their

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grievances. Considering, also the

power which they wield in the

administration of Governmental

affairs, a special conferment of

benefits on them in the matter of

mobilities governing the election

process cannot be regarded as

unreasonable or arbitrary."

The Constitution Bench thus emphatically laid down that

unless the expenditure is in fact incurred or authorised by

the candidate or his election agent, he cannot be saddled

with that expenditure. Of course a candidate cannot be

permitted to place his own funds in the power or possession

of a political party, an association, or some other persons

or individuals for being spent on his behalf and then plead

for the protection under Explanation (1) to Section 77 of

the Act. Where the election petitioner successfully

establishes that the funds were provided by the returned

candidate, it would be immaterial as to who actually made

the payments, which ought to have been included in the

return of election expense. It is not "whose hand it is that

spends the money". The essence of the matter is "whose money

it is" that has been spent. In order that explanation (1) to

Section 77 of the Act may apply, therefore, it must be

proved that the source of the expenditure incurred was not

out of the money of the candidate or his election agent.

Respondent No. 1 lodged the account of his election

expenses with the District Election Officer on 12th July,

1991, supported by 45 vouchers disclosing the total

expenditure of Rs. 72,421.85. The appellants in the election

petition pleaded that Respondent No. 1 had not kept a true

and correct account of the expenditure incurred and/or

authorised by him or by his election agent in relation to

the elections held on 12th June, 1991 and had exceeded the

prescribed limit and thereby committed the corrupt practice

under Section 123(6) of the Act. The appellants alleged that

a huge amount of expenditure incurred in connection with the

election of Respondent No. 1 was falsely shown to have been

incurred by the political party and other associations,

persons or individuals, though in fact the expenditure had

been incurred and/or authorised by Respondent No. 1 himself

or by his election agent. It was asserted that Respondent

No. 1 had placed his own funds in the power and possession

of the political party, organisations and individuals for

being spent in connection with his election in order to

circumvent the law and escape from the consequence of

incurring and authorising expenditure beyond the prescribed

limits. It was alleged that Respondent No. 1 had incurred an

expenditure for the purpose of his election during the

period 25.4.1991 to 16.6.1991 to the tune of Rs.

38,30,375.50, as against the permissible limit of Rs.

1,50,000.00. The statement showing the expenditure allegedly

incurred and authorised by Respondent No. 1 was given in

para 2.24 of the election petition. At the trial, however,

items No. 2, 8, 9 and 14 out of that statement were not

pressed. The High Court, however, in para 200 of the

judgment found that besides the expenditure disclosed in the

return of expenses filed by Respondent No. 1, he had also

incurred the following expenses, which had been suppressed:

Rs. 17,900.00 for the amount paid to Raj Automobiles;

Rs. 1,320.00 for the advertisement in the Tarun Bharat

dated 28.4.1991.

Rs. 7,000.00 for the advertisement in Tarun Bharat -

Election Special.

Rs. 9,100.00 for the advertisement in Lokmat Dt.

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12.5.1991 (Sharad Pawar Mitra Mandal)

Rs. 22,900.00 in view of the findings recorded on issue

No. 5(b) (vi) & (vii).

---------------------

Total : Rs. 58,220.00

---------------------

and adding the amount of expenditure suppressed i.e. Rs.

58,220.00, to the declared expenses, the High Court found

that the return of expenditure filed by Respondent No. 1

should have been for a sum of Rs. 1,30,641.85. However,

since even that amount fell short of the permissible

expenditure of Rs. 1,50,000.00, it was found that Respondent

No. 1 had not committed the corrupt practice within the

meaning of Section 123 (6) of the Act. Whereas the

appellants have challenged the findings of the High Court on

some of the issues, as already noticed, the returned

candidate, Respondent No. 1, has also filed cross objections

challenging the finding of the High Court in respect of the

addition of Rs. 58,220.00.

ISSUE NO. 4 (V) :

Though issue No. 4 concerns five items, it is only item

No. (v) which has been pressed before us by the learned

counsel for appellants. The findings of the High Court on

items (i) to (iv) of Issue No. 4, which have been decided

against the appellants have not been challenged before us

and therefore, we confirm the findings of the High Court

regarding those items. So far as Item No. (v) is concerned,

it relates to the payments made by respondent No. 1 to M/S

Raj Automobiles for purchase of fuel etc.

According to the appellants, Respondent No. 1 in his

return of expenditure submitted to the District Election

Officer had, under Items 31 to 34, shown the expenditure

incurred by him on account of purchases of petrol etc. from

M/s. Raj Automobiles, Civil Lines, Nagpur under bills No.

401 to 404 for the period 1.5.1991 to 12.6.1991 but had

failed to include the cost of 1180 litres of petrol also

allegedly purchased by the returned candidate from Raj

Automobiles over and above the quantity of petrol shown to

have been purchased by Respondent No. 1 under bill Nos. 401,

402 and 403, as disclosed in the return of expenses filed by

him for the period 1.5.1991 to 12.6.1991. The appellants

specifically pleaded that petrol which had been shown to

have been purchased by respondent No. 1 was for three

vehicles : (i) MH-31-G-1722; (ii) MH-02-2200; and (iii) 7069

but the cost of purchase of 1180 litres of petrol had been

suppressed. In his written statement, Respondent No. 1,

admitted that under items 31 to 34 in his return of

expenditure, he had shown the expenditure incurred by him on

account of the purchase of petrol from M/s. Raj Automobiles

during 1.5.1991 to 12.6.1991 but denied that Raj

Automobiles, Civil Lines, Nagpur had sold 1180 litres of

petrol over and above the quantity of petrol shown to have

been purchased by him under bill No. 401, 402, 403 filed

alongwith the statement of account. It was pleaded that the

allegation was vague and based on speculation and that no

particulars had been given of the basis on which it was

alleged that he had purchased 1180 litres of petrol at the

cost of Rs.17900/- in addition to what had been disclosed by

him.

The appellants examined PW 36, Shankar Rao Gadge, who

was working as an Accountant with Raj Automobiles at the

relevant time. He deposed that a credit account had been

started for Respondent No. 1 at the instance of Mrs. Shalini

Bai Meghe (wife of respondent No. 1 and proprietor of Raj

Automobiles) and credit slip books had been issued to

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Respondent No. 1. That whenever petrol or oil was purchased

by or for respondent No.1, a copy of the credit slip used to

be given to M/s. Raj Automobiles and its counterfoil was

retained by the customer. The original credit slips were

lateron returned to the first respondent alongwith the bill.

The witness after referring to the record deposed that fuel

had been supplied to respondent No. 1 for car Nos. MH-31-

1722, MH-02-2200, MK-1/1022 besides vehicle No. 1422 and

7069 during 1.5.91 to 16.6.91. He also proved a cash memo

dated 16.6.1991 for bill No. 2503 (Ex. 681) for sale of 10

liters of petrol sold to respondent No.1. The witness

admitted that receipt No. 843 dated 12.7.1991 (Ex. 680) was

in respect of bill Nos. 401 to 405 for the consolidated

amount of Rs. 12,152.40 and went on to say that the payments

had been made by a cheque by respondent No.1. According to

the witness, except the petrol which was sold under the cash

memo Ex.680 all other petrol and oil sold to Datta Meghe was

worth Rs. 12152.40 p. All these transactions are carried

over and entered in their accounts. "We did not sell either

oil or petrol besides these to Datta Meghe" was the

categorical statement made by PW36 Gadge.

The appellants also examined Shri Prakash Baidya PW33.

This witness earlier used to be a partner in M/S Raj

Automobiles till 1991 where after he ceased to have any

concern with Raj Automobiles. During the parliamentary

elections, he was the General Secretary of the East Nagpur

Assembly Constituency for BJP, the party to which both the

appellants as well as respondent No. 2 belonged and was in

charge of that area. He deposed that it is necessary to put

one litre of oil if the consumption of petrol is 100 to 125

liters and that in one litre of oil, the run of the vehicle

would be about 1000 kms. on an average consumption at the

rate of 10 kms per litre of petrol. During the cross-

examination, he admitted that he had deposed about the ratio

of consumption of petrol and oil from his experience and not

from any book and also conceded that if an engine is old it

would consume more oil as well as more petrol and that the

oil-petrol ratio varies according to the horse power of the

engine and its model and that if the chamber of the vehicle

leaks, the consumption of oil would be more because of

leakage and not on account of the consumption. He admitted

that he is not an automobile engineer.

Respondent No. 1, the returned candidate in his

statement admitted that his wife owns Raj Automobiles and

that petrol and oil were bought by him on credit from Raj

Automobiles, except for one cash transaction on 16.6.1992

for Rs. 147.40 (Ex. 681). He went on to add that he did not

buy petrol from any other petrol station except Raj

Automobiles during the election period and that the credit

slips which used to be issued to Raj Automobiles were

received back by him with the bill from Raj Automobiles and

after the bills were paid, the credit slips were destroyed.

During his cross-examination, he stated that he had three

diesel and four petrol cars with him for his election and

that he had hired some motor cars and auto-rickshaw on 19,

20 and 21 May and 8, 9, 10 June, 1991 through Prince

Travels. He disclosed the names of the parties from whom he

had procured those vehicles and asserted that besides Car No

7069 which he had procured from Nagar Yuvak Sanstha, he used

the cars of the workers who used to come and see him.

According to him vehicle No.7069 is NE and the model was 3/4

years old.

For coming to the conclusion that the returned candidate had

purchased more fuel than the one shown by him in his return

of expenditure,the High Court relied upon the petrol-oil

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ratio as deposed to by pw Baidya. It was found that the

amount of oil admittedly purchased by the returned candidate

as per bill No.404 when considered in the light of the total

fuel purchased would show that, much more fuel would have

been purchased to consume the quantity of oil purchased as

per bill No.404. It was found by the High Court on the basis

of the calculations made that the returned candidate had

suppressed an expenditure to the tune of Rs.18,277.60 but

since the appenllants had asserted that there had been

suppression of the use of 1180 litres of petrol worth

Rs.17900/-only,therefore only that much of expenditure could

be added to the disclosed expenses of the returned

candidate. The High Court while entering into the

calculations did not base itself on the oil-petrol ratio but

multiplied the consumption of petrol for one of the cars

(MH-31G-1727), which was admittedly used by respondent No.1

by 3 and drew an inference that for the other 3 cars also.

the same amount of petrol would have been consumed and thus

found that the returned candidate would have purchased more

petrol worth atleast Rs.18277.60.

In the election petition a specific allegation had been

made to the effect that the returned candidate had purchased

1180 litres of petrol in addition to what had been disclosed

by him from Raj Automobiles. In the verification of the

election petition,the appellants had disclosed the source of

information with regard to the contents of para 2.10 as

based on the information received from Shri Baidya PW. In

the affidavit filed in support of the allegations of the

said corrupt practice, the source of information was also

disclosed to be Shri Baidya PW. However, PW53, Shri Prakash

Baidya, in his deposition in court did not state that he had

conveyed any information to the election petitioners about

the alleged excess purchase of 1180 litres of petrol by

Respondent No.1 from M/s. Raj Automobiles apart from the

quantity of fuel purchased by him as disclosed in the return

of election expenditure. In his statement, he only

speculated about the excess purchase of petrol on the basis

of oil-petrol ratio, based on his experience even though

admittedly he is not an expert,not even an automobile

engineer. In the election petition nothing was said about

the petrol-oil ratio as the basis from which the appellants

had inferred that 1180 litres of petrol had been purchased

by the returned candidate in addition to the quantity of

fuel shown to have been purchased by him from Raj

Automobiles. Except for giving same figure of '1180' litres

of petrol alleged to have been purchased by respondent No.1,

the appellants did not give any other facts or particulars

in the election petition for alleging purchase of 1180

litres of excess petrol and left the matter totally vague.

Even in his own statement,appellant No.1, did not disclose

the basis for arriving at the figure of '1180'. An attempt

was apparently made to get sustenance from the testimony of

Baidya PW53, admittedly a partyman of the appellants and

respondent No.2, to support the allegations made in the

petition on the basis of oil-petrol ratio. Even in that

behalf we find that no evidence was led by the appellants to

show as to what were the models of the vehicles which were

used by the returned candidate and the extent to which all

those vehicles had been used during the elections. The

returned candidate, R1W1, was not even asked a single

question regarding the extent of the use of the different

vehicles to determine the mileage- run in respect of each

one of those vehicles. No explanation was even sought from

him regarding the oil-petrol ratio or as to why so much of

oil had been purchased for so little fuel. In this

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connection,it is also relevant to note that PW33 Shri Vijay

Rathi, the Accountant of Raj Automobiles, had been summoned

by the appellants alongwith the record presumably to prove

the excess sale of 1180 litres of petrol, apart from the

fuel shown in bill Nos. 401, 402, 403 and 404 but the record

was never got exhibited and there is , thus, force in the

submission of Mr Manohar, learned counsel for the returned

candidate that a presumption should be drawn against the

appellants to the effect that the summoned record being

inconvenient was not got exhibited by the appellants. The

observation of the High Court, under the circumstances, to

the effect that Raj Automobiles had suppressed the record

does not appear to be well founded as the summoned record

had been brought by PW33 to the court but the party chose

not to get the same exhibited and no fault can be found with

Raj Automobiles

The High Court, as already noticed, found the

suppression of Rs.18,277.60 on the calculation based on the

quantity of petrol purchased for vehicle No.

MH-31-G-1722. The total petrol purchased for that vehicle

was shown as 470 litres and the amount of oil purchased for

that was shown to be 22 litres.

Obviously, the ratio of oil-petrol as deposed to by Shri

Baidya PW53, does not appear to have any relation to the

petrol-oil ratio for the said vehicle. On the basis of the

ratio as deposed to by PW53, more than 50 litres of oil

should have been consumed for this vehicle. The High Court,

as already observed, calculated the cost of 470 litres of

petrol as Rs.6927.80 and than multiplied it by 3 and arrived

at the figure of Rs.20,783.40 and deducting an amount of

Rs.2505.80, which had been shown to be cost of the petrol

used for the two other vehicles used by the returned

candidate, determined the suppression at Rs.18277.60, but

since the election petitioners had alleged suppression of

the use of 1180 litres of petrol worth Rs.17,900/- only, the

High Court fastened the liability on the first respondent

not for the amount of Rs.18277.60 but Rs.17900/- only

In our opinion, the approach of the High Court was

wrong and it fell into a complete error in making these

calculations which are not even based on guess work but are

totally conjectural in nature. The type of exercise done by

the High Court had neither any factual foundation in the

election petition nor even in the evidence. The High Court

made out a new case neither the one pleaded by the election

petitioners nor the one pleaded by the returned candidate.

It was not a permissible course for the High Court to adopt

while dealing with the allegation of commission of a corrupt

practice in an election petition. Since, no evidence was led

by the election petitioner about the alleged purchase of

excess of 1180 litres of petrol, the High Court ought to

have found the issue against the appellants. The finding of

the High Court is, not on any evidence. Except PW1 who made

a vague statement to the effect that he had seen the

vehicles pleaded in the election petition, on the roads

throughout during the election, without indicating when,

where and which vehicle, on other evidence was produced to

show the extent to which the other vehicles in question had

been used during the election by Respondent No.1 or his

election agent or by any other person with the consent of

respondent No.1 or his election agent. The election

petitioner could have examined withnesses from different

segments of the constituency to depose, if they had seen the

returned candidate or his election agent in that area in any

particular vehicle and then number of occasions when the

returned candidate had been so seen in different localities

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in the same or different vehicles to show the extent of run

of those vehicles by bringing out the total distance likely

to have been covered. No such evidence was led, though the

production of such evidence was not an utter impossibility.

That vehicle No.1722 (which was made the basis for

calculation of total run by the High Court) was more

extensively used, than the other vehicles is a reasonble

possibility which cannot be ignored. It was incumbent upon

the appellants to prove the sale of 1180 litres of petrol in

favour of Respondent No.1 by Raj Automobiles as alleged by

them in the election petition, by leading cogent and

satisfactory evidence and they miserably failed to prove the

said charge, let alone beyond a reasonable doubt. Even the

mathematical calculation made by the High Court also appears

to be incorect but we need not detain ourselves to point out

the same because of the infirmities pointed out by us in the

approach of the High Court. The finding of the High Court on

Issue No.4 (V), therefore, cannot be sustained and we set

aside that finding and hold that the appellants have failed

to prove Issue No.4 (V) and consequently the addition of

Rs.17,900.00 in the return of expenditure of respondent No.1

was not justified and the said amount shall have to be

excluded. The cross-objection to that extent succeeds and is

allowed.

ISSUE NO.5 (b) (i) & (ii)

The allegations of the election petitioners which led

to the framing of Issue No.5 (b) (i) and (ii) are contained

in paragraphs 2.11 to 2.14 of the election petition and

concern the issuance of voter cards to 1243382 voters in the

constituency by the returned candidate after getting the

same printed at a cost of Rs.2,25,000/- from Shakti Offset

Works, appealing to the electorate to vote for the returned

candidate. Besides, Respondent No.1 is also alleged to have

got printed posters of different sizes, namely, one lakh

posters of 20"x30"; one lakh fifty thousand posters of

18"x23" and seventy five thousand posters of 15"x20"

propogating his candidature and these posters of different

sizes, on an average of about 300 posters were exhibited at

each of the 1250 polling booths in the constituency. It was

alleged that in all 3,25,000 posters were got printed by

the returned candidate between 25.4.91 and 21.5.91 after

incurring an expense of Rs.3,40,250.00 for the printing of

the said posters and the first respondent did not include in

the return of his election expenses either the amount of

Rs.2,25,000/- being the cost of the voters cards or

Rs.3,40,250/- being the cost of the posters. In the written

statement, while admitting that the appeal made in the voter

cards was to cast votes in favour of the first respondent

and that the posters were also published for the furtherance

of the prospects of the election of the first respondent,

the returned candidate denied to have incurred any

expenditure at all on printing and distribution of either

the voter cards or the posters. According to the first

respondent, he learnt about the printing of about four lakh

voter cards by the Nagpur City District Congress Committee

at its own expense and also came to know that some posters

had been got printed and published by Nagpur City District

Congress Committee while some more posters had been supplied

by Congress (I) through its sub-organisations,at various

levels, as per the past practice and as per the practice

being followed by the other parties also for distribution

and that he had neither authorised nor incurred any expense

for the said cards and posters and that the same had been

published and distributed without his knowledge let alone

his consent.

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The appellant Bapat PW1 in his statement deposed that

voter cards had been issued about eight days prior to the

poll to every voter as mentioned in the voters list Ex.74

and according to his estimation the cost of printing of the

voter cards would be Rs.2,25,000/-. In the course of his

statement he,

however, admitted that in the case of respondent No.2, Shri

B. L. Purohit voter cards had also been issued to the voters

but went on to say that the same had been got printed by the

BJP at its own expense and were distributed by the workers

of the B.J.P. without any expense being incurred or borne by

respondent No.2 himself. With regard to the publication of

the posters, he deposed that the posters had been used by

the returned candidate extensively. Specimen of some of the

posters were produced as Ex.75 to Ex.78. PW1, asserted that

the expenditure for the printing of voter cards and the

posters in the case of the returned candidate was borne by

the first respondent himself and not by anyone else.

The appellants in support of their case examined PW41

Suresh Deotale President of Nagpur Gramin Congress, PW42

Baliram Dakhne Cashier, PW43 Baburao Zade, Secretary of the

Gramin Congress and PW46 Marotrao Kumbhalkar, Treasurer of

the Nagpur District Congress Committee. The evidence of all

these withnesses however reveals that the Congress Committee

had incurred the expenditure for publication of

advertisements, voters cards, posters etc. In connection

with the election of the returned candidate. These

witnesses, however, admitted that the Congress party did not

maintain any account in respect of election expenses either

for the local bodies, Legislative Assemblies, or Parliament.

That the work regarding the election propaganda and

incurring of election expenses used to be entrusted to one

or the other of the office bearers by the Party. In the case

of the election of Datta Meghe, the witnesses deposed that

the job had been entrusted to PW43 Baburao Zade. These

witnesses further deposed that money for undertaking

election expenses was collected by the Congress Party in the

form of collection coupons. That a part of the election

coupons were supplied by the All India Congress Committee in

the demonination of Rs.2/- and Rs.5/- while the rest were

printed at the local levels. No account was, however,

maintained of those coupons. The posters were also supplied

by All India Congress Committee and the Provincial Congress

Committee. PW43, Baburao Zade stated that Shakti Offset was

one of the printers who had undertaken the printing job and

that the orders for printing work had been placed by him on

Shakti Offset through Shri Parshonikar. He admitted that he

was a sitting MLA at the time of the election. He however

was not aware if Parshonikar was the Secretary of Nagpur

Shahr Zila Congress Committee. From The testimony of PW41

President of Nagpur Gramin Congress it emerges that the

manner of collection of funds for election purposes was

through sale of coupons. The witness denied that not

maintaining of any accounts of those coupons, was a practice

devised only for the present election but asserted that it

was a practice which used to be followed in all earlier

elections also. He went on to add and that when Shri

Purohit, respondent No.2, was a Congress Candidate in the

Parliamentary elections of 1984 and 1989, the expense for

his election propaganda had been incurred by the Congress

Committee also by raising funds through sale of coupons and

that no account had been kept either of the coupons or even

of the total expense incurred during those elections. He was

emphatic that the Congress Committee did not maintain any

account in respect of the expenditure incurred by the party

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in connection with the elections to the local bodies,

Legislative Assembly or Parliamentary elections. The

evidence of PW42 is almost on the same lines as that of PW41

and PW43 in all material particulars. This witness further

deposed that he had learnt from PW43 Baburao Zade that an

amount of Rs. 40000/- had been paid to Parshionikar towards

the election expenses and that some posters had been issued

by the All India Congress Committee also. The pass book of

the Gramin Congress which was produced by the witness,

revealed that after the withdrawal of an amount of Rs.250/-

on 26.9.90, the next withdrawal was only on 10.4.92 of

Rs.3500/- and that no other amount had either been deposited

or withdrawn by the party from the Bank. The evidence of the

witnesses to the effect that funds for election expenses

were collected by sale of coupons and donations and no

account was maintained of the receipt and expenses, thus,

receives corroboration from the Bank Pass Book of the Gramin

Congress. The testimony of PW43 which supports the testimony

of PW41 reveals that about 30000 to 40000 voter cards

besides some handbills worth Rs.2000/- to 3000/- had been

got printed by the Party through Shakti Offset Works.

Explaining the reason for not maintaining any account of

receipt and expense, the witnesses stated that since persons

who bought the coupons or gave donations were mostly

businessmen, who generally paid the amount by cash, and did

not want any record of the payment made by them to be kept,

the accounts were not maintained. PW44 Vishnu Dutt Misra,

Vice-President of the Nagpur Nagar Zila congress and PW45

Awari, President of Nagpur Nagar Congress Comittee deposed

on the same lines as PW41 to PW43. PW46 Marotrao Kumbhalkar,

the Treasurer of the Party, further stated that the

responsibility for the election propaganda of the returned

candidate in the present case had been placed on Shri

Parshonikar, who was made the Secretary Incharge of the

elections of Respondent No.1 by the Party. According to

PW46. an amount of about Rs.14 lakhs had been collected

through donations and sale of coupons, out of which Nagar

Congress Committee had also got coupons worth about Rs.7

lakhs printed and the remaining coupons worth Rs.7 lakhs had

been received from the All India Congress Committee. The job

for giving advertisement to the newspapers etc. on behalf of

various Congress Committees and organisations had been

entrusted to Shri Parshionikar. He admitted that even in

1989 when respondent No.2, Banwarilal Purohit, had contested

the election as a Congress candidate, an amount of about

Rs.12 lakhs to Rs.14 lakhs had been collected through sale

of coupons and donations and the same had been spent by the

Party for the furtherance of the election of Respondent

No.2, Banwarilal Purohit, without maintaining any account of

receipt and expense.

Ashok Thakre PW54, the Manager of Shakti Offset Works

deposed that none of the candidates had approached him

personally for placing orders for printing work. He

disclosed the names of the persons who had aproached him on

behalf of different candidates to place orders in connection

with the printing of posters of different sizes, as

reflected in Ex.75 to Ex.78 and asserted that orders had

been placed for the same by Shri Parshonikar and the posters

had been got printed by Gramin Congress for which purpose

PW43 had also approached him. He went on to state that Shri

Parshionikar had approached him on behalf of Nagar Zila

Shehar Congress and that the printing work was got done by

Shri Pande on behalf of the Yuvak Congress. PW54 gave

details of the various posters printed by him and by

reference to ledger Ex.738/9, stated that an amount of

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Rs.50000/- has been shown to have been credited to the

account by the President Nagar Shehr Congress Committee on

13.5.91 under five different receipts, Ex.744 to 748, for

Rs.10000/- each, totally Rs.50,000/- He then deposed that a

further sum of Rs.50000/- had been received by the press

from Nagpur Zila Congress Committee, Gramin-Vibhag and that

a sum of Rs.50000/- had also been received from Zila

Congress Committee (Yuvak) on 6.6.91 and 23.10.91. An amount

of Rs.10000/- was received from Nagpur Zila Congress

Committee (I) Gramin also. That all these amounts were spent

for the printing work entrusted by various Congress

Committees and organisation of the propaganda material for

the election of the returned candidate. The returned

candidate in his deposition denied to have authorised or

incurred any expense as alleged by the election petitioner

in connection aither with the printing of voter cards or the

posters etc. and maintained that he had not even taken the

responsibility to reimburse the expenditure on behalf of any

one and that no expenditure in that behalf had been incurred

by any one with his consent either.

After considering the evidence in its totality in the

light of the pleadings in the election petition, we find

that the election petitioner has not adduced any cogent,

satisfactory or reliable evidence to establish that the

expenditure of Rs.2,25,000/- and Rs.3,40,250/- as alleged in

the petition had been incurred and/or authorised by

respondent No.1 for the printing of voter cards and the

posters. On the other hand it emerges, that the entire

expenditure on that behalf was undertaken and borne by the

Congress Party and others and that it was so done as per the

past practice also.

The argument of Dr. Ghatate however is that Thakre

PW54, the Manager of Shakti Offset Works who denied the

receipt of any amount from the returned candidate could not

be relied upon because there has been some tampering with

the record, including the ledger, and therefore it should be

inferred that he was helping the returned candidate. It was

submitted by the learned counsel that even though PW54 was

produced and examined by the election petitioner, they were

not bound by his entire evidence and that once it was

established that the record had been tampered with, the onus

would shift to the returned candidate to show that he was

not responsible for the tampering or that the tampering had

not been done at his instance. This argument is fallacious

and does not impress us at all. There is no material brought

on the record to even suggest let alone establish that the

tampering had been done in the record at the instance of the

returned candidate. No sound foundation had been laid either

in the petition or in the evidence which may justify this

court to raise the inference, which the learned counsel

invites us to draw. A similar argument had been raised on

behalf of the appellants in the trial court also and the

learned trial Judge found that the allegation of the

tampering of the record by Shakti Offset Works at the

instance of the returned candidate had not at all been

proved, much less satisfactorily. The trial court rightly

found that the practice followed by all political parties

for printing of voter cards and posters had always been much

similar and the amounts for the said purpose used to be

spent by the political parties by sale of coupons and by

receiving donations and even when respondent No.2 had

contested the election as a Congress candidate the same

practice had been followed. The election petitioners have

failed to establish any link between the alleged expenses

and the returned candidate for printing and distribution of

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voters cards and posters and have not brought any

circumstance on the record to show that the returned

candidate had any hand in the tampering of record or even

that the tampering of the record was done for the benefit of

the returned candidate only.

We wish, however, to point out that though the practice

followed by political parties in not maintaining accounts of

receipts of the sale of coupons and donations as well as the

expenditure incurred in connection with the election of its

candidate appears to be a reality but it certainly is not a

good practice. It leaves a lot of scope for soiling the

purity of election by money influence. Even if the traders

and businessmen do not desire their names to be publicised

in view the explanation of the witnesses, nothing prevents

the political party and particularly a National party from

maintaining its own accounts to show total receipts and

expenditure incurred, so that there could be some

accountability. The practice being followed as per the

evidence introduces the possiblity of receipts of money from

the candidate himself or his election agent for being spent

for furtherance of his election, without getting directly

exposed, thereby defeating the real intention behind

Explanation I to Section 77 of the Act. It is, therefore,

appropriate for the Legislature or the Election Commission

to intervene and prescribe by Rules the requirements of

maintaining true and correct account of the receipt and

expenditure by the political parties by disclosing the

sources of receipts as well. Unless, this is done, the

possibility of purity of elections being soiled by money

influence cannot really be ruled out. The political parties

must disclose as to how much amount was collected by it and

from whom and the manner in which it was spent so that the

court is in a position to determine "whose money was

actually spent" through the hands of the Party. It is

equally necessary for an election petitioner to produce

better type of evidence to satisfy the court as to "whose

money it was" that was being spent through the party. Vague

allegations and discrepent evidence may only create a doubt

but then the charge of corrupt practice cannot be held to be

proved on mere lurking suspicion or doubts.

Howsoever, undesirable and objectionable the practice

might be, the fact remains that the evidence led by the

election petitioners in this case does not establish the

charge levelled by them at all. In the absence of any

cogent, reliable, satisfactory and trustworthy evidence to

show that the respondent No.1 or his election agent had

incurred or authorised the expenditure as alleged in the

petition, the trial court rightly found the issue against

the election petitioner and we find no reason to take a

different view. We therefore, confirm the findings of the

High Court on the said issue.

ISSUE 5 (B) (V)

In para 2.20 of the election petition it has been

pleaded that respondent No.1 had sent personal inland

letters to all the voters residing within the constituency

and the appellants had calculated the price of each such

letter as Rupee One, inclusive of printing and postage. Two

of such letters, Annexures 13 and 14, containing the

residential address of respondent No.1 allegedly received by

Vijay Shinde and Vinayak Gode PW49 were annexed with the

election petition. It was alleged that respondent No.1 had

made an appeal through the inland letters to the voters to

cast their vote in his favour on 12.6.91. It was further

stated that though the letters were shown to have been sent

by Sarva Dharma Samajik Sangathan, the expenditure for the

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same was in fact authorised and incurred by respondent No.1

himself. It was pleaded that there were 1240830 voters in

the constituency and, therefore, respondent No.1 was alleged

to have incurred an expenditure of Rs.12,40,830/- on the

inland letters and he had not shown the expenditure incurred

by him in that behalf in the return of expenditure filed by

him and if the said amount is included, it would show that

the returned candidate had incurred and authorised

expenditure beyond the prescribed limits and thus committed

the corrupt practice under Section 123 (6) of the Act. In

the written statement, the returned candidate denied the

allegations and styled the same as imaginary and baseless.

He denied to have sent any letter to Vijay Shinde and

Vinayak Gode, Annexure 13 and 14 respectively or to anyone

else in the constituency. The allegation that he had

incurred an expenditure of Rs.12,40,830/- was vehemently

denied. Respondent No.1 stated that according to the

information received by him after the election, the Sarva

Dharma Samajik Sangathan had got printed about two thousand

letters similar to Annexure 13 and 14 and issued the same

without his approval or consent and the entire expenditure

must have been borne by the Sangathan itself since it was

neither authorised nor incurred by him or by his election

agent. It was stated that the allegation in the paragraph

were vague and general in nature and lacked essential

ingredients and particulars and the assention that all the

voters in the constituency had received the letters from

respondent No.1 was based on speculation and conjectures and

not on facts.

In the original written statement filed by the returned

candidate in reply to para 2.20, it appears that while he

denied the "sending" of the inland letters identical to

Annexures 13 and 14, there was no specific denial made by

him regarding his signatures allegedly appearing on those

letters. In the amended written statement, a specific denial

was also incorporated stating that the respondent No.1 had

not signed those letters and that inadvertantly it had been

omitted to be mentioned in the earlier written statement,

while denying the sending of the inland letters. Thus, in

the amended written statement there was denial both, about

the signatures as well as the sending of the letters by the

first respondent to the voters. Respondent No.1 also denied

to have incurred or authorised any expenditure in connection

with the printing and postage of those inland letters.

Appellant No.1 Bapat, appearing as PW1 in his statement

asserted that each one of the voters in the constituency had

received such an inland letter from respondent No. 1 but

admitted during his cross examination that he had no idea

whether the letters had actually been signed by the first

respondent or by someone else. The petitioner also examined

Shri JD Kotwal PW56 as the Hand-writing Expert to identify

the signatures of Respondent No. 1 on Annexures 13 and 14

(Ex.79 and 80), and to compare the same with the admitted

signatures of the first respondent. The Hand-writing Expert

PW56, however, did not support the case of the election

petitioner and deposed that no opinion could be expressed

regarding the authorship or otherwise of the disputed

signatures on Ex.79 and 80 (Annexure 13 and 14). With the

denial by respondent No.1 that he had neither signed those

letters nor sent any such letters to the electorate and the

evidence of the Hand-writing Expert PW56, the appellants

must be held to have failed to prove that the letters like

Annexures 13 and 14 were signed by respondent No.1 or that

he was responsible for sending those letters to the

electorate. The argument of Dr. Ghatate that even if the

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letters had not been signed by respondent No.1, but since

the same had been sent as an appeal to vote for him, it

should be presumed that he was the author and sender of the

letters, does not appeal to us. The court can only decide

the case on the basis of the evidence led and not on what

ought to have been led. In the instant case, the election

petitioners have failed to examine any witness to show that

the letters (like Annexure 13 and 14) had in fact been sent

by respondent No.1 to the electorate. The letters were, on

the face of it, sent by the Sangathan. No evidence has been

led to show that the money spent by the Sangathan had been

provided by respondent No.1 either or that the Sangathan was

a non-existant body. The allegation has remained totally

unsubstantiated. It was certainly not obligatory for the

returned candidate under the circumstances, to have produced

any witness from the Sangathan to prove that Sangathan had

sent the letters on its own or that it had also incurred the

expenditure itself. Since, the case of the returned

candidate categorically had been that those letters were

neither signed by him nor sent by him nor did he incur any

expenditure in respect thereof, it was for the election

petitioners to establish the charge by leading reliable and

satisfactory evidence. The evidence of appellant Bapat PW1,

to the effect that he had made inquiry from the Charity

Commissioner and learnt that there was no such Sangathan

registered with the Charity Commissioner, to urge that the

Sangathan was a `fake' organisation and was not a genuine

society, ignores the fact that the registration of such a

Sangathan is not necessarily to be done only with the

Charity Commissioners. The petitioner admittedly made no

inquiry from any other quarter to find out whether or not

the Sangathan was in fact in existence or not. The intrinsic

evidence of the document shows that the letters were sent by

the Sangathan and keeping in view the evidence of the

handwriting expert, it appears that the letters bore the

name of `Datta Meghe' and not his signatures. The petitioner

could have produced some witness from the Sangathan to show

that no such letters had been sent by the Sangathan. The

petitioners did not even summon a witness from the Sangathan

alongwith the record. Had it been done and if the summons

could not be served because of the alleged non-existence of

such a Sangathan, it may have been possible for the

petitioner to argue that the Sangathan was a fake

organisation and that an inference may be drawn that the

letters had been sent by respondent No.1 at his expense but

no such inference can be drawn in favour of the appellants

in view of the facts and circumstances existing on the

record. Respondent No.1 had disclosed the name of Shri

Bhasme as one of the officers of the Sangathan in his

testimony and the appellants should have sought permission

of the Court to summon Shri Bhasme at that stage atleast but

they did not do so for reasons best known to them. We are

unable to agree with Dr. Ghatate, that the evidence should

have been led by the returned candidate to prove that

actually the letters had been sent by the Sangathan after

incurring the expenses itself and the petitioners should not

be expected to lead such evidence. The onus to prove the

charge was on the election petitioners and in the absence of

any satisfactory evidence adduced to discharge that onus,

the returned candidate was under no obligation to prove that

he was not responsible for committing the corrupt practice.

Again, it is not the case of the appellants that the

expenditure had been incurred by the Sangathan, with the

consent of the returned candidate or his election agent nor

is it their case that the returned candidate had undertaken

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to reimburse the expenditure incurred by the Sangathan. The

trial court, in our opinion, after properly considering and

appreciating the evidence rightly found that there was no

evidence on the record to support the plea that the first

respondent had spent the amount as alleged on the postage

and printing of the inland letters of the type, Annexure 13

and 14 (Ex.79 and 80) or that he had sent those letters to

every voter in the constitutency. From the material on the

record, there is no scope even to raise a strong suspicion

against the first respondent in that behalf. The appellants

appear to be labouring under the wrong impression that once

they make an allegation against the returned candidate,

their responsibility is over and it is for the returned

candidate to prove his innocence. It is against the

essential principles of election law. At the risk of

repetition it may be stated that where allegations of

corrupt practice are alleged, it is for the election

petitioners to prove the charge against the returned

candidate beyond a reasonable doubt to the satisfaction of

the court. The obligation of the returned candidate to rebut

the allegations by leading evidence arises only after the

election petitioners have led dependable evidence in support

of the charge of corrupt practice and not till then. The

appellants have in the present case failed to do so in

respect of the charge relating to issue No.5(b)(v) and

accordingly we agree with the High Court that the returned

candidate was not required to refute the charge by leading

evidence on this behalf. The issue is accordingly decided

against the appellants and we confirm the finding of the

High Court.

Issue No. 5(b) (vi) & (vii)

These two issues relate to the publication of certain

advertisements in various newspapers such as Nagpur Times,

Nagpur Patrika, Nav Bharat Times, Tarun Bharat among others.

There is some connection between these issues and issues

6(a), (b) and (c), which we shall deal with separately.

According to the election petitioners, the returned

candidate had opened an account with Nav Bharat Times,

Nagpur Times and Nagpur Patrika and had incurred an expense

of Rs. 4,89,424.00 for the publication of various

advertisements in connection with his election in those

newspapers but the said amount was not included in the

return of expenditure and that had the same been included,

the returned candidate would be shown to have incurred

expenses beyond the permissible limits. The break up of the

amount (Rs. 4,89,424.00) allegedly incurred or authorised by

the returned candidate as given by the appellants is as

follows:

(1) Nav Bharat Times = Rs. 2,61,274.00

(2) Nagpur Times & Nagpur

Patrika = Rs. 2,28,150.00

It was alleged in the election petition that the returned

candidate had an account, Code No. M-0042 (Ex. 441), with

the Newspaper Nav Bharat Times and though it was shown that

the expenses for the advertisements published in the

newspapers were borne by Nagpur District Congress Committee,

Gramin Congress Committee and some other organisations and

individuals, but in fact the payments had been made out of

the amounts provided for by Respondent No. 1 to the said

Committees, organisations and individuals. In the written

statement Respondent No. 1 denied that he had incurred or

authorised any expenditure himself or through his election

agent in respect of the various advertisements appearing in

Nav Bharat Times, Nagpur Times and Nagpur Patrika as alleged

in the election petition. It was also denied that the

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advertisements had been published at the instance of or with

the knowledge of Respondent No. 1 or that he had placed his

funds at the disposal of the party and others to discharge

the liability arising out of the publication of the

advertisements.

We shall first take up the publication of the

advertisements in Nav Bharat Times for which it is alleged

that an expenditure of Rs. 2,61,274.00 was incurred or

authorised by Respondent No. 1.

PW6 Narayan Gawalani, the Manager of Nav Bharat Times

while appearing as a witness for the election petitioner

deposed that the newspaper receives advertisements through

advertising agencies, organisations and individuals. The

agencies which had released advertisements during the

elections were Prasad Publicity, Yugdharma Consultants and

Commercial Services (Y.C.C.S). For Prasad Publicity and

Y.C.C.S. they had a running account while Congress had no

running account with Nav Bharat. He then explained how

various advertisements appearing in the paper came to be

published and disclosed the sources from which the same had

come and also identified the person or party who had made

payments in respect of those advertisements. He went on to

depose that whenever the advertisements were received, they

were entered in a register called the "RO Input Register"

but the same had not been preserved and had since been

destroyed. That there was no other proof pertaining to the

receipt and publication of advertisements. He produced the

ledger and proved various advertisements, release orders,

bills etc. During his cross-examination, he was confronted

with various receipts and he went on to say

"None of the advertisements of which

the total works out to Rs. 26690/- as

stated above were given by Datta

Meghe. The payment also was not made

by Datta Meghe for those

advertisements. nor did he take

responsibility for making these

payments."

While explaining the document Ex. 407 and the existence of

words "(Datta Meghe Election advertisements)" written in ink

in the copy of Ex. 407, he expressed ignorance as to when or

by whom those words were inserted in the office copy. He

admitted that in respect of Ex. 409A, the words "Datta Meghe

Account" did not appear in the original of the receipt but

could not say as to who had written those words in the copy.

The witness in response to the question regarding the

association of Respondent No. 2, with the partners of the

firm stated

"I know Ramgopal Maheshwari, Prakash

Maheshwari. They are the partners of

the firm which owns Nav Bharat. It is

true that on many common social formus

they and Respondent No. 2 Banwarilal

Purohit are together. I do not know if

they belong to the same community. It

is not true that our management has

forged the duplicates of receipt books

at the instance of Banwarilal Purohit

in order to boster his false claim in

the petition."

The witness categorically asserted that "M 00042" is

the code number of "Datta Meghe Election Advertisement

Account" and that all payments against the said code number

and account had been received from Nagpur Shahar District

Congress-I Committee and that no payment was received from

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Datta Meghe or from anyone else on behalf of Datta Meghe.

PW7, Shri Sapre, Manager, Accounts of Nav Bharat Times,

deposed that Manmohan Maheshwari is the Editor of Nav Bharat

Times. That receipt Ex. 406 was issued first in the name of

Datta Meghe but later on it was corrected to show the name

of the party as Congress Committee and it was done under his

instructions because it had been brought to his notice that

payment had not been made by Datta Meghe but by Nagpur

Shahar Indira Congress Committee. He went on to state that

the original receipt Ex. 406-A was signed by Kulkarni.

Explaining the difference in scoring of certain words in the

carbon copy Ex.406-A and its original Ex. 406-A, the witness

stated that he had scratched the original name and

substituted it with the name of Shahar Congress Committee.

He, however, could not state as to who did the scoring in

the original receipt Ex. 406-A, because the same had not

been done by him. When his attention was drawn to a number

of other receipts and their carbon copies and particularly

the entries thereon, with a view to point out the difference

between the entries in the originals and the copies, the

witness stated that since receipts had been issued by

different persons like Kulkarni, Prabhakar and others, he

could not explain the reason as to why the corrections had

been made but asserted that the corrections had not been

made only in the case of the receipts concerning Respondent

No. 1 but such corrections had been made also in respect of

the receipts issued in favour of some other candidates and

all such corrections were made in routine. The witness then

categorically admitted

"We do not have any personal account of

the respondent No. 1 Datta Meghe in

the account books. Except for the

`Datta Meghe Election Advertisement

Account' there is no other account in

Datta Meghe's name. The receipt Ex. 406

was fully written by Kulkarni when it

came to me, and it bore the two bill

numbers, and that was also the case

with original Ex. 406-A. I did not

check up in whose names the two bills

mentioned therein, stood. They had been

checked by the Advertisement

Department."

PW8 Pannalal Poddar was working as an Assistant in the

advertisement department of Nav Bharat Times at the relevant

time. He deposed that a subsidiary ledger was being

maintained in the advertisement department and that the

bills which were prepared by the advertisement department

were entered in the said ledger against the accounts of the

concerned parties and that he used to maintain that

register. He stated that at page 496 of the ledger, there

exists an account in the name of "Datta Meghe Election

Advertisement Account" and that the said account had been

written up to page 498 under the same title. He stated that

out of the writing "Datta Meghe Election Advertising

Account" Nagpur, the words "Datta Meghe, Nagpur" were in his

handwriting but the remaining words "Election Advertisement

Account" were not in his handwriting and he could not even

identify the author of the words "Election Advertisement

Account" in the above entry. He stated that entry regarding

bill No. 9101007 of May, 1991 for Rs. 10,000/- stood

originally in the name of Datta Meghe but that name was

scored out later on but he could not say as to who had

scored out the name and susbsituted the same by "Nagpur

Congress". That the scoring in the enteries had been done in

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Bill Nos. 9101007, 9101343, 9101439 and 9101940 also by

substituting the name of Datta Meghe with Nagpur Congress

and Nagpur Shahar Zila Congress-I. He, however, did not know

as to who had made the corrections or even the time when the

same had been made or the reason why they had been made.

During his cross-examination, he admitted that there were

neither any erasers nor corrections in the subsidiary

register in regard to the four bills (above noted) and that

the entries in that register had been made within 5 to 7

days of the issuing of the receipts. The witness

specifically admitted that it " is not possible to say by

referring to the account whether payment was received in

this account through any other organisation except the

Congress Committees."

Respondent No. 1 appearing as R1W1 deposed that

Parshionikar had been entrusted with the work of issuing

advertisements on behalf of the Congress Committee. That

Parshionikar was a man of his confidence. He denied that he

had himself entrusted any job of publication of the

advertisements in the newspapers to Parshionikar. He went on

to add that he had not asked Nav Bharat Times to open a

separate account for his election advertisements and denied

any knowledge whether Nav Bharat Times had opened any

account as "Datta Meghe Account". He denied the suggestion

that Account No. M-0042 had been opened by him initially in

the name of "Datta Meghe Account" but was lateron converted,

at his instance, to the name of "Data Meghe Election

Advertisements Account" to escape the rigours of law. He

went on to asert that he had not given any advertisement to

Nav Bharat Times nor had he paid any amount to the said

paper.

Dr. Ghatate, learned counsel appearing for the

appellants argued that since there was an account in the

name of Datta Meghe, being Account No. M-0042, and

admittedly the District Congress Committee had no account

with Nav Bharat Times, the inference was obvious that the

assertion of the returned candidate that neither he had

issued any advertisements in Nav Bharat Times nor did he

make any payment for the same or even agreed to reimburse

the expenses incurred for the publication of the

advertisements in the said paper was not correct. He

submitted that the interpolations made in the copy of the

receipt Ex. 406 and its original Ex. 406-A was a tell tale

example of the tampering of the record by Nav Bharat Times

with a view to help Respondent No. 1 to conceal the

incurring of expenditure by him and that an adverse

inference should be drawn that all the scoring etc. by the

employees of Nav Bharat Times only with a view to favour

Respondent No. 1, In support of the argument, learned

counsel pointed out that receipt Ex. 406 dated 17.5.1991 was

initially issued in the name of Datta Meghe and subsequently

in the original receipt Ex. 406A, where the name of the

party had been initially left blank, the name of Congress

Committee was written even though in the carbon copy, the

name of the party continued to be shown as Datta Meghe which

was also later on interpolated and substitued to read "Datta

Meghe Election Advertisement Account". Learned counsel

submitted that from the fact that the original receipt Ex.

406A, was produced during the cross-examination of the

witness by the counsel for Respondent No. 1 the only

explanation for the original receipt Ex. 406-A being found

in possession of Respondent No. 1, could be that he had made

the payment and kept the receipt, as otherwise there was no

occasion for the original receipt to be found with the

counsel for the returned candidate.

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Thus, wherever it was found that the involvement of

Datta Meghe could be proved, his name was scored off and

replaced by Congress Committee etc. by Nav Bharat Times.

According to Dr. Ghatate even if Datta Meghe himself had not

placed any order for issuance of any of to the newspaper, it

was out of the funds provided by him that the payments had

been made and therefore the returned candidate would be

deemed to have incurred the said expenditure. Though the

arguments of Dr. Ghatate appear on the first blush to be

attractive but they do not bear close scrutiny. Had receipt

Ex. 406-A, which is the original of receipt Ex. 406 been

with Respondent No. 1, containing a blank entry which was

later on filled up as District Congress Committee showing it

as the party making the payment, there was no reason why the

same entry could not appear in the carbon copy Ex. 406, if

the employees from Nav Bharat Times were out to oblige

Respondent No. 1. The explanation given by the witnesses

from Nav Bharat Times regarding the appearance of different

names in the original and the carbon copy, cannot be said to

be wholly unacceptable, particularly in view of the

attendant circumstances. The possibility that interpolation

was made in the copy of the receipt Ex. 406, to create

evidence against the returned candidate also cannot be ruled

out particularly in view of the association of respondent

No. 2 with the management of Nav Bharat Times. If the

original Ex. 406A contained the name of Congress Committee

and the entry in the carbon copy had been left blank, it

could have been filled up by adding the name of Datta Meghe

That apart, the receipts Ex. 406-A and its carbon copy Ex.

406 relate to payments made in respect of two bills based on

two distinct release order. Neither the correctness of the

release orders, admittedly not issued by Datta Meghe, nor

the authenticity of the relevant bills, which bills again

had not been drawn in the name of the returned candidate,

has been doubted by the appellants. Therefore, much capital

cannot be made out of the difference of the entrfes in the

original and the carbon copy of receipts Ex. 406-A and Ex.

406, when it is not disputed that Ex. 406 was actually

issued in the name of Nagpur Shahar Indira Congress

Committee. It is also pertinent to notice here that the

appellants have led no evidence whatsoever to show that any

order for advertisement had been placed by Respondent No. 1

himself or by his election agent with Nav Bharat Times in

respect of either of the two release orders or bills. Not a

single bill, out of the massive record produced by the

appellants, is in the name of the returned candidate. There

is not a single receipt of payment issued in the name of the

returned candidate either. The witnesses appearing on behalf

of the petitioners have categorically asserted with

reference to the record that no amount had been paid by

Respondent No. 1 for any of the advertisements published by

them in their newspapers. The learned Trial Judge has

elaborately considered various documents to which his

attention was drawn and the arguments raised on the basis of

the so-called interpolations etc. on some of the documents

and concluded that there had been some errors in the

mentioning of Code numbers in some receipts etc. But rightly

found that the first respondent could not be held

responsible for any of those interpolations. No evidence

direct or circumstantial has been led by the petitioners to

support the charges levelled against the returned candidate

to the effect that the returned candidate had provided funds

to the party and it was his money which was paid through the

hands of the party. The allegation has remained absolutely

unsubstantiated. As a matter of fact, the evidence led by

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the election petitioners instead of supporting their case,

has to a large extent, demolished the same in as much as

none of the witnesses have contradicted the assertion of the

returned candidate that he incurred no expense, other than

that which he had disclosed in the return of his election

expense. The Trial Court therefore, rightly held that the

expenses in respect of all the advertisements (subject

matter of the issues) which were published in Nav Bharat

Times could not be said to have been incurred or authorised

by the first respondent. We find that the conclusion arrived

at by the Trial Court is based on correct and proper

appreciation of the evidence and learned counsel for the

appellants has been unable to point out any flaw or error in

the reasoning of the learned Single Judge of the High Court.

We, accordingly uphold the finding of the High Court.

We shall now consider the allegations regarding the

expenditure allegedly incurred in connection with the

advertisements which appeared in different issues of Nagpur

Times and Nagpur Patrika for the election of the returned

candidate. It is not disputed that none of the

advertisements were issued by the returned candidate himself

nor any bill was drawn against him nor any payment was

received from him. These advertisements appeared under

different names. For example, the advertisements, Ex. 84/13

and 84/15 appeared in the name of a "Well Wisher". The bill

for those advertisements, Ex. 474, was drawn by the Nagpur

Times /Nagpur Patrika combined in the name of "Nitin

Furnitures" and the receipt of payment, Ex. 475 was also

drawn in the name of "Nitin Furnitures", Nagpur. Similarly,

two advertisements dated 8.6.1991 published in Nagpur Times

being Ex. 84/14 and 85/15, were published by "Punjab

Woodcrafts". The bills in respect of the same were drawn in

the name of `Punjab Woodcrafts' for Rs. 15,000/- and the

receipt, Ex. 477 dated 14.9.1991, also shows the name of

M/s. Punjab Woodcrafts as the party who had made the

payment. The advertisement issued in the Nagpur Times, Ex.

84/15 and in Nagpur Patrika, Ex. 85/16 were again published

by a "Well Wisher" and the bill Ex. 478 dated 30th June,

1991 for the said advertisement was issued in the name of

"Ranjit Engineering Works" and the receipt, Ex. 479, for the

same was also issued in the name of Ranjit Engineering Works

(by mentioning its Code No. ICR-0436). Again, for the

advertisements published in Nagpur Times and Nagpur Patrika

dated 10.6.1991, by a "Well Wisher", the bill was prepared

in the name of "Talmale Bandhu" on 30th June 1991 and the

receipt in respect of the said bill dated 14.9.1991 was also

issued in favour of "Talmale Bandhu".

The appellants examined Shri Mahendra Bangarde PW 40

who was working as the Finance Manager with Nagpur Times

since 1983. He stated that Ms. Neelima used to work as the

Data Operator. She, however, was not the examined by the

appellant. He proved various entries in the ledgers, bills

and receipts concerning publication of advertisements in the

Nagpur Times. He did not state that any of those

advertisements had been published either by Respondent No. 1

or by his election agent or that any payment in respect

thereof had been made by Respondent No. 1 or his election

agent nor even that respondent NO. 1 or his election agent

had taken the responsibility for making the payment for the

concerned advertisements.

Santosh Sarode PW9 was working as the Manager General

(Coordination) with the Nagpur Times at the relevant time

and deposed that he knew about the advertisements which were

published in the Nagpur Times and Nagpur Patrika during the

last Lok Sabha elections. He deposed that various

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advertisements which had appeared in the Nagpur Times in

support of the election of the returned candidate had been

published at the instance of Shri Parshoinkar, who had taken

the responsibility for settling the bills in respect of

those advertisements. He went on to say that it was at the

asking of Shri Parshoinkar that bill Ex. 474 for Rs.

15,000/- dated 30.6.1991 was drawn in the name of 'Nitin

Furnitures'. The payment for the said bill was received on

14.9.1991 from Nitin Furnitures. He admitted that the Punjab

Woodcrafts had an account with the Newspaper and that it was

their represntative who had requested them for the

publication of an advertisement for which also Shri

Parshoinkar had taken the responsibility for making payment

and that later on Shri Parshoinkar had brought the amount

and paid the same on behalf of Punjab Woodcrafts. The

witness stated that according to his knowledge, Shri

Parshoinkar was an office bearer of the Congress Committee

and admitted that payments for some other bills also were

made by Shri Parshoinkar on behalf of various parties as

well as on behalf of the Congress Committee. Referring to

the corrections made in the Code numbers appearing in

certain bills, the witness stated that he had no knowledge

as to who had made those corrections or overwritings and

when the same were made but categorically asserted that all

the payments had been made only by Shri Parshoinkar. The

witness admitted that there was an account styled as "Datta

Meghe Election Advertisement Account" with his newspaper and

that the Nagpur Shahar District Congress Committee also had

a separate account with his paper. Explaining the

corrections made in respect of recipts No. 779, 825, 1026,

1356 which had been first shown credited in the account of

"Datta Meghe Election Advertisement Account", the witness

stated that it was the Nagpur Shahar District Congress

Committee, who had asked the newspaper to publish the

advertisements and had also undertaken the responsibility to

make the payment for the same and since the said Congress

Committee had also an account with them directly, they had

transferred the "amounts" from "Datta Meghe Election

Advertisement Account" to the account of Nagpur Shahar

District Congress Committee, as the advertisements had

actually emanated from the Congress Committee and payments

had also been made by the Congress Committee. The witness

explained that initially in their records all the amounts

which were being received from Nagpur Shahar District

Congress Committee as well as from Nagpur Gramin Committee

were being credited in the Account of 'Datta Meghe Election

Advertisement Account' but lateron the same were corrected

to accord with the actualities and credited in the

appropriate Account of the party responsible for the

advertisement and payments. The witness stated that since

Shri Parshoinkar had brought the payments for the

advertisements from the Nagpur Shahar District

CongressCommittee, Nagpur Gramin Congress Committee, Nitin

Furnitures, Punjab Woodcrafts, Ranjit Engineering Works and

Talmals Bandhu there had been some confusion about the

mentioning of the Code Numbers in various receipts. During

his, cross-examination, the witness categorically asserted

that no payments were made by Datta Meghe for the

advertisements which were released by Prasad publicity nor

had Datta Meghe taken the responsibility for making payments

in respect of those advertisements. Thus, we find that

according to the witnesses examined by the petitioners,

neither Datta Meghe had issued any advertisement for

publication nor had he made any payments in respect of the

advertisements issued at the instance of different parties

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in the newspapers.

Respondent No. 1 during the course of his examination

asserted:

"I had not asked any of the news

papers to open an account in my name

in respect of the advertisements, during

the election period. Neither did I ask

my election agent or any one else to

open such an account on my behalf. I

have no account in my name as Datta

Meghe with any of the news papers,

because I never asked such account to

be opened. I learnt yesterday that an

account had been opened in my name by

Janvad, only yesterday. I do not

know whether that account had been

opened during the election period. It

is not true that I had opened personal

accounts in my name with Nav Bharat,

Nagpur Times and Nagpur Patrika in

relation to the advertisements during

the election. It is not true that I had

asked the entries which stood in my

name to be transferred in the name

of the Congress Committees. It is not

true that I supplied the funds for

publishing these advertisements to

the Congress Committees, or the

institutions or individuals who made the

payments."

The assertion of the returned candidate finds support

from the witnesses produced by the petitioners concerning

the advertisements published in Nagpur Times and Nagpur

Patrika.

The argument raised by Dr. Ghatate in respect of the

advertisements published in Nagpur Times and Nagpur Patrika

was only a repetition of the arguments raised on behalf of

the election petitiones in the Trial court. The learned

Single Judge, after examining minutely various bills,

receipts, advertisements and entries in the ledgers etc. as

also analysing the oral evidence, came to the conclusion

that the election petitioners had failed to establish the

charge levelled against Respondent No. 1 to the effect that

he was responsible for the publication of any of the

advertisements or that he had incurred or authorised any

expenditure himself or through his election agent or even

that the funds allegedly provided by him had been utilised

to discharge the liabilities. The High Court found that the

returned candidate could not be connected with any of the

interpolations or tampering with the record of the newspaper

either and observed :

"The question, however, is

whatever may be the reasons for the

manipulation, can the liability for

manipulation be fastened on the first

respondent. Merely because there was a

change in the names in the bills and

there was every good reason for the

name of the first respondent, if it

had appeared in the original

document being suppressed and there

was a Datta Meghe Advertising Account

0056 in the book of Nav Samaj Ltd.,

it cannot be said that the first

respondent's name had appeared in the

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original bill and that, that was

removed and new names were substituted.

The mater cannot rest merely on

surmises. The persons, who had actually

accepted the advertisements, were not

examined. Though Sarode's version,

when it comes to be against the

interest of the respondent No. 2. would

have to be considered with more care

and caution for disbelieving the

version that the first respondent was

not concerned with the advertisements

some positive evidence was necessary. On

the other hand, the positive evidence

is that the first respondent had not

given these advertisements and had not

accepted the responsibility for these

advertisements. None from Talmale

Bandu, Punjab Wood Craft, Ranjit

Engineering Works and Nitin Furniture

was called as a witness to show that

they had not given the advertisements.

If such evidence were led, then an

inference could have legitimately been

raised that since they had not given

these advertisements, they must have

been given by the first respondent,

because he would be the person who

would be really interested in advancing

his own cause. on their own, may come

forward for giving the advertisements,

without any apparent motive, in the

circumstances, though there is no

reason to doubt the evidence that the

names in the bills and the receipts

issued by Nav Samaj Ltd. had been

changed in order to conceal the real

advertiser, I find that that evidence

by itself is not sufficient to clothe

the first respondent with the

responsibility of giving the

advertisements."

(Emphasis added)

We find ourselves in complete agreement with the above

opinion of the High Court. Relevant witnesses were not

examined by the election petitioners for reasons best know

to them. The appellants have offerred no explanation, much

less a satisfactory one, as to why those witnesses who were

relevant and were likely to shed some light were withheld.

The evidence led by the appellants is not only insufficient

but also confusing, contradictory and often destructive of

the case set up by the petitioners. We are hesitant, in the

face of the evidence on the record, to take a view different

than the High Court. On the basis of the above discussion,

Issue 5(b) (vi)&(vii), except to the extent we shall refer

to certain items lateron, are held not to have been

established by the election petitioners and the same are

decided against them.

Issue No.6 (a).(b)&(c)

In para 2.23 A of the amended election petition, the

case projected by the election petitioners was that the

returned candidate, respondent No. 1, had got released

various advertisements through Yugdharma Consultants and

Commercial services for publication in the newspaper 'Tarun

Bharat'. A Statement, Annexure 18-A, indicating the bills in

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respect of the advertisements allegedly released by

respondent No. 1 in the said newspaper was filed and it was

alleged that an amount of Rs. 2090.00 had been received by

Tarun Bharat towards the advertisement expenses. It was

pleaded that though some of the bills had been been drawn in

the name of respondent No. 1 himself and he had been shown

to have settled those bills by making payments thereof, some

of the other bills were fictitiously shown under the names

of certain dummy organisations or individuals, though the

payment in respect of each one of those items of

advertisements was also made by respondent No. 1 himself

and/or by his election agent, Shri Sudhakar Deshmukh, during

the period 25.4.1991 to 16.6.1991 and all that expense was

suppressed from the return of election expenses. In para

2.23/B of the amended petition, it was pleaded that the

advertisement details where of were contained in Annexures

18-B and 18-C, had also been released for publication by

respondent No. 1 himself and/or by his election agent or by

the individuals/organisations and others under the authority

of Respondent No. 1 and or his election agent. to the daily

newspaper Hitvada, through Orange city Advertising, Nagpur

and prasad Publicity, Nagpur respectively and an amount of

Rs. 40,000/- and 23,520/- had been paid to Hitvada towards

the charges of those advertisements through orange city

Advertising and prasad Publicity respectively. That even

though the bills for the amount were drawn in the name of

certain organisations, and individuals actually the payments

in respect of each one of the bills, had been made by

Respondent No. 1 himself and/or his election agent, Shri

Sudhakar Deshmukh, but the returned candidate had failed to

include the said expenditure in the return of his election

expenses.

In Paragraph 2.23 C of the amended election petition,

by reference to the statement contained in Annexure 18-D,

detailing the advertisements released through Prasad

Publicity to Tarun Bharat, it was pleaded that those

advertisements had been issued by respondent No. 1 for

publication in Tarun Bharat and an amount of Rs. 71,440/-

had been paid to Tarun Bharat towards the publication of

said advertisements and even though some of the bills were

drawn in the name of Respondent No.1 himself and he made the

payments thereof, the other bills had been fictitiously

drawn in the name of certain organisations or individuals,

though in fact the payment in respect of the same were made

either by Respondent No. 1 himself or by his election agent

shri Sudhikar Deshmukh and that an expenditure of Rs.

71.440/- in that behalf was not included by him in the

return of election expenses.

The returned candidate in his written statement, while

admitting the publication of some of the advertisements in

Tarun Bharat, the expenditure where of he had shown in the

return of election expenses, denied that he had made the

payments of Rs. 2090.00 to Tarun Bharat as alleged in

paragraph 2.23 A (Annexure 18A) or had even asked them to

publish the concerned advertisement. He also denied that he

had authorised or incurred an expenditure to the tune of

Rs.40,000.00 and 23,520.00 as alleged in para 2.23 B of the

amended election petition in respect of the items detailed

in Annexure 18 B and 18 C. In reply to para 2.23 C, the

returned candidate denied to have incurred any expenditure

himself or though his election agent or with his consent

through any other organisation, association or individual

for the advertisements, as itemised in Annexure 18-D, to the

election petition. He asserted that no expenditure with

regard to the publication of the alleged advertisements had

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been incurred or authorised by him and he categorically

denied to have suppressed any amount from the return of his

election expense.

We shall first take up for consideration Issue No. 6(c)

which concerns the publication of seven advertisements,

which according to the election petitioners were issued by

the election agent of Respondent No. 1, Shri Sudhakar

Deshmukh and Published on 18.6.1991 in Lok Mat, Lok Mat

Samachar, Hitavad, Nagpur Times, Nagpur Patrika, Nav Bharat

and Tarun Bharat. The said advertisements were "thanks

giving" advertisements. The total expenditure incurred in

respect of the same as alleged in the amended election

petition was Rs. 39,500/-. Some of the advertisements were

alleged to have been directly released to the newspapers by

the election agent of Respondent No. 1 while others were

alleged to have been released through prasad Publicity.

According to Mr. Manohar, the learned senior counsel

for the returned candidate the expenses involved in the

publication of all these advertisements, even if accepted as

true and assumed for the sake of argument to have been

incurred or authorised by the election agent of Respondent

No. 1, were not required to be included in the election

expenses, as the advertisements had been published after the

declaration of the result and were not published during the

crucial dates mentioned in Section 77 of the Act.According

to Dr. Ghatate, on the other hand, since the advertisements

had appeared in various newspapers on 18.6.1991, it would be

reasonable to presume that the advertisements had been

issued prior to mid-night between 17th June,1991 and 18th

June,1991 and therefore the expenditure involved in the

publication of these advertisements would be deemed to be an

expenditure incurred in connection with the election and was

required to be included in the return of election

expenditure.

As already noticed, Section 77(1) of the Act mandates

that a separate and correct account of all the expenditure

in connection with the election, incurred or authorised by

the returned candidate or by his election agent between the

dates on which he had been nominated and the date of

declaration of the results thereof, both dates inclusive,

shall be maintained. The High Court, after a detailed

discussion of the submissions made by learned counsel for

the parties, which have been reiterated before us also, came

to the conclusion that all the seven advertisements for

which the total expenditure of Rs. 39,500/- was alleged to

have been incurred or authorised by the election agent of

the returned candidate were "thanks giving" advertisements

and were published after the declaration of result and

therefore they did not fall within the prohibitory limits of

the time schedule prescribed in Sub- section (1) of section

77 of the Act and were as such not required to be taken into

account while computing the expenses incurred by the first

respondent.

We are in agreement with the view of the High Court

that the advertisements in question could not be said to

have been issued in connection with the election, even if

that expression is to be given a wide amplitude. What is it

that the Legislature intended to achieve by prescribing the

inner and the outer limits in Section 77 of the Act ?

Obviously, it was the elimination of money influence during

the elections and maintaining of purity of elections. The

expenditure incurred after the declaration of the result of

the election can possibly have no nexus with the purity of

the electoral process. The very fact that the advertisements

thanked the electorate for electing Datta Meghe would show

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that the same could only have been issued for publication

after the declaration of Datta Meghe as the returned

candidate. The expenditure incurred in that connection

therefore cannot be said to be an expenditure 'authorised'

or 'incurred' during the prohibited dates. Indeed, there may

be cases where some expenditure can be incurred or

authorised by a returned candidate in connection with his

election, even after the declaration of the result, but

unless that expenditure can be related to the process of

election, authorised or incurred during the prohibitory

limits set out in Section 77 (1) of the Act, it is not

required to be included in the return of expenses. The mere

fact that the advertisements appeared in the newspapers on

the very next day cannot lead to any presumption that the

expenditure in connection therewith had been incurred or

authorised by the returned candidate during the prescribed

prohibitory dates in anticipation of his being declared

elected. We, agree and uphold the finding of the High Court

that there was no nexus between the amount spent on thanks

giving advertisements with the election after the

declaration of the result of election and decide issue No.

6(c) against the election petitioners.

Issue No. 6(a) arises out of the allegations made in

para 2.13 of the election petition and the items contained

in Annexures 17 and 18 to the petition. It deals with the

advertisements allegedly issued by Respondent No. 1 through

M/s. Yugdharma Consultants and Commercial Services, Nagpur

(for short 'YCCS') to publicise his candidature. A chart

containing 27 items of expenditure incurred in respect of

various advertisements published on different dates in

different newspapers in connection with the election of the

first respondent were relied upon to urge that the

advertisements had been released through two advertising

agencies namely Yogdharma Consultants & Commercial Services

(YCCS) and Prasad Publicity. According to the election

petitioners Respondent No. 1 incurred an expenditure of

Rs.2,74,224/- on the advertisements released through YCCS

but the said expenditure has been suppressed by the returned

candidate and if included in the return of election expense,

would show that the returned candidate had committed the

corrupt practice as envisaged by Section 123 (b) of the Act.

That some of the advertisements had been published in

various newspapers and had been released through YCCS or

Prasad Publicity has not been disputed by learned counsel

for Respondent No. 1 before us. His argument, however, is

that neither Respondent No.1 had authorised the publication

of those advertisements through YCCS or Prasad Publicity nor

had Respondent No.1 or his election agent authorised or

incurred the alleged expenditure of Rs. 2,74,224/- in

respect of those advertisements. The main thrust of the

argument of Dr. Ghatate, appearing for the appellants, on

the other hand was that in the release orders which had been

issued by YCCS the name of "Datta Meghe" had been shown as

the client and, therefore, it was futile to urge that

respondent No.1 or his election agent had not incurred or

authorised the expenditure in connection with those

advertisements. Reliance was placed on the advertisements

which appeared in the issues of Lok Mat and Lok Mat Samachar

dated 1.5.1991, 2.5.91, 3.5.91, 5.5.91, 6.5.91 and 21.5.91,

being Ex. 83/2 to 83/6, 83/34, 83/35, and 83/91 to argue the

expenditure in respect of the same had been incurred or

authorised by respondent No.1. We, however, find that the

bills in respect of each of the aforesaid advertisements

were admittedly issued in the names of persons, other than

the first respondent. Those had been issued in the names of

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Sushila Bai Jadav; Nagpur Nagar Congress Committee; Yuvak

Congress Committee and Supersteel Furniture etc. Even in

respect of the advertisements which appeared in the issues

of Yugdharma dated 1.5.91, 3.5.91, 8.5.91 and 11.5.91, the

bills had admittedly been issued in the names of Nagpur

Nagar Zila Congress Committee. The election petitioners

sought to connect Respondent No.1 with the advertisements

issued through YCCS by pointing out that the name of Shri

Datta Meghe had been shown as the client in those bills and,

therefore, he alone must be presumed to have discharged the

liability arising out of those bills either directly or by

placing his funds in the hands of the parties in whose names

the bills had been drawn. Reliance has been placed on the

statement of Shri Madhukar Kishti, PW 55 by learned counsel

for the appellants in support of his submissions.

Shri Madhukar Kishti, PW 55 was at the relevant time

the Managing Director of Yugdharma Cooperative Society, the

parent company, which publishes the daily Yugdharma run by

Yugdharma Industrial Cooperative society. Yugdharma Workers

Newspapers Pvt. Ltd. used to run the daily Yugdharma prior

to it being taken over by the YCCS. It was Yugdharma Workers

Pvt. Ltd. who had constituted YCCS in March 1990 as the

sister concern for routing advertisements to different

newspapers. PW55 deposed that he used to do whatever work

was required to be done by the YCCS. He went on to state

that YCCS released advertisements for publication for Datta

Meghe's candidature for the Parliamentary Elections of 1991

to various newspapers and asserted that those advertisements

were received by them from Yuvak Congress Committee etc.

Explaining as to how the name of Datta Meghe had appeared in

certain release orders against the name of the client even

though Datta Meghe had not released any of the

advertisements, the witness stated that since the space had

to be booked in relation to the election of Datta Meghe in

various newspapers, the witness had, on his own mentioned

the name of Datta Meghe against the name of the client for

the sake of convenience, though Datta Meghe had not

entrusted any advertisement to YCCS for publication. The

witness added that he had not received any orders personally

on behalf of YCCS from any of the clients of YCCS and that

the orders used to be received by Shri Thakre Shri Prakash

Deshpande. In his cross-examination, the witness, however,

conceded that the name of Datta Meghe had been mentioned in

cerain release orders only because the name of the client

had not been disclosed by the party and the space was

required to be booked in the newspapaers in advance owing to

the rush of advertisements. Since, the advertisements were

required to be published in connection with the election of

Datta Meghe, he had shown his name against the name of the

client on his own accord. PW55, further, admitted that

neither any bill nor any receipt had been issued by the YCCS

in the name of Datta Meghe. Thus, we find that PW55 does not

advance the case of the election petitioners at all in so

far as the allegations concerning issue No. 6(a) are

concerned. Besides, this witness had no personal knowledge

of the nature of the transactions on the basis of which the

release orders came to be issued. The election petitioners

had summoned various release orders and other record from

this witness to connect the name of Datta Maghe but

curiously enough they were neither exhibited nor got proved.

The other witnesses, who could throw some light on the

nature of the transaction, like Shri Thakre and Shri Prakash

Deshpande, though summoned, were not examined on this aspect

for reasons best known to them. The submission of learned

counsel for the appellants that the explanation given by

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PW55 regarding the reason for the name of Datta Meghe

appearing in some of the release orders is not satisfactory

cannot help the appellants because there is no other

evidence or explanation offered by the election petitioner.

Even otherwise the explanation appears to be quite

plausible. It was for the election petitioners to adduce

better and cogent evidence, direct or circumstantial, to

show that the returned candidate had incurred or authorised

either himself or through his election agent the expenditure

in respect of the advertisements issued by YCCS, as alleged

in the petition, but no such evidence was produced and the

allegation has remained unsubstantiated.

Shri Prakash Despande, PW11, the Deputy General Manager

of Hitvada did prove the signatures of PW55 on release order

Ex. 586 dated 7.5.1991 but was silent about any transaction

between YCCS and the first respondent. Same position exists

in respect of other advertisements also. We need not,

therefore, detain ourselves to refer to all other

advertisements, their release orders, bills or receipts

because from the evidence of PW55 it stands established that

no payment for any of the advertisments issued by YCCS came

from the returned candidate, Respondent No. 1 deposed that

the advertisements had been issued by different parties,

associations and individuals and those parties had made the

necessary payments. The petitioners have led no evidence to

show that the advertisements which were issued under the

names of different parties, organisations and individuals

like Nagpur Nagar Congress Committee, Indira Brigade, Youth

Congress, Phartiva Sher Sangathana, Vidharbha Professors

Club etc. were in fact not issued by those parties,

organisations, institutions or individuals, by examining any

witness from such bodies and, therefore, the argument that

the advertisements, though shown to have been issued by

different parties and organistions etc., were in fact issued

at the instance of the first respondent or that it was his

money which they had paid to discharge the liabilities in

respect of these advertisements, has no basis let alone any

foundation. The election petitioners have totally failed to

bring any material on the record to connect Respondent No. 1

either with the publication of or expenditure incurred in

respect of the various advertisements as alleged in the

petition. Even though the names of the parties,

organisations, associations, institutions, and individuals

etc. had been mentioned in the advertisements as the

sponsors of the advertisements, the election petitioners did

not examine any one of them to elicit from them that they

had not issued or caused to be issued those advertisements

or that they had not incurred any expense in connection

therewith. We are not impressed with the submission of the

learned counsel for the petitioners that since identical

advertisements came to be issued simultaneously in different

newspapers on the same date or on different dates, an

inference should be raised that it was done only at the

instance of the first respondent, because he alone was the

beneficiary irrespective of different names of sponsors. The

argument has neither logic nor any basis. The election

petitioners led no evidence to even create a doubt about the

identity of the sponsors and merely because identical

advertisements appeared on the same date, it is not possible

to hold that the sponsors were fictitious persons or that

the actual sponsor was the returned candidate himself. It is

not unknown that during the elections, many sympathisers as

well as 'others' come forward to support the candidature of

a particular candidate and sponsor and pay for the

advertisements which they get published to further the

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prospects of that candidate's election. Moreover, apart from

the returned candidate, the party which sponsors him as its

candidate is equally interested in the furtherance of the

prospects of his election and may approach different

organisations, associations or individuals to sponsor and

publish the advertisements at their expense in favour of the

candidate and even to suggest to them that the same could be

done by availing of the services of YCCS which was engaged

in the propoganda cannot be ruled out. The burden of proving

the issue was heavy on the election petitioners but they

have miserably failed to discharge the burden. No evidence,

direct or circumstantial has been led even to show that it

was the money of the returned candidate which had been used

by the party, other associations, institutions or persons,

for the publication of the advertisements in various

newspapers. The evidence on the record does not lead to any

inference that it was the first respondent's money which was

used for publication of advertisements and in the absence of

such an evidence, no responsibility can be fastened on the

first respondent in respect of the expenditure incurred in

connection with those advertisements. The learned trial

Judge after a detailed discussion of various exhibits and

taking into consideration the law on the subject concluded

that :

........................................

" Datta Meghe's connection with the

advertisements released by YCCS has

not been established, and there is no

other evidence to show that Datta

Meghe either incurred or authorised the

expenses for the advertisements

released through YCCS, and all the

advertisements, which have been issued

through the agency of YCCS will have to

be left out, while considering the

expenses incurred or authorised by the

first respondent Datta Meghe."

We are in complete agreement with the

above conclusions and nothing has been

pointed out before us to persuade us to

take a different view. Issue No. 6(a) is, therefore, decided

against the election petitioners.

ISSUE NO. 6(b)

According to the allegations contained in para

2.23-A of the amended election petition, the returned

candidate had, besides releasing advertisements through YCCS

in various newspapers also utilised the services of Orange

City Advertising, Nagpur and Prasad Publicity, Nagpur for

publication of advertisements in connection with the

furtherance of his elections in various newspapers. The

details of the advertisements allegedly released by the

returned candidate to the newspaper daily Hitvada through

Orange City Advertising, Nagpur and Prasad Publicity Nagpur

were provided in Annexure 18B and C attached to the election

petition. The total amount alleged to have been spent by the

returned candidate in that behalf was stated to be

Rs.40,000/- and Rs.23,520/-. In para 2.23-B the election

petitioners averred that although, it appears from the

statements at Annex. 18B and 18C that the bills were issued

in the name of certain organisations, the payments in

respect of each one of the bills had in fact been made by

respondent No. 1 himself and/or his election agent, Shri

Sudhakar Deshmukh during the period from 25.4.91 to 16.6.91.

It was alleged that the orders for each of the items of

advertisements appearing in the statements at Anex. 18B 18C

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were also placed by respondent No. 1 himself and/or by his

election agent Shri Sudhakar Deshmukh or by the

organisations and individuals as indicated in the statements

at the instance and under the authority of respondent No. 1

or his election agent. Besides the election petitioners

alleged in para 2.23-C that some more advertisements had

been released by respondent No. 1 during 25.4.91 to 16.6.91

through Prasad Publicity in Tarun Bharat and an expenditure

of Rs.71440/- had been incurred therefor which was also not

disclosed by the returned candidate in the return of his

expense.

In the written statement, respondent No. 1

categorically denied that the advertisements detailed in

Annexures 18B and 18C had been published or issued by him

and asserted that no expenditure in that behalf had been

incurred or authorised by him or by his election agent. It

was denied that he had authorised and/or incurred an

expenditure of Rs.40000/- and Rs.23520/- as itemised in

Annexure 18B and 18C. Similarly, it was asserted by the

returned candidate that he had not placed orders for any of

the advertisements detailed in Annexure 18D either himself

or through his election agent nor had he authorised any of

the organisations or individuals mentioned in Annexure 18D

to get published the advertisements. It was maintained that

no expenditure whatsoever with regard to the advertisements

itemised in Annexure 18D were incurred or authorised by the

returned candidate or by his election agent and therefore

there was no question of disclosing the same in the return

of election expenses. With regard to The advertisements

allegedly released through Orange City Advertising, the

learned trial Judge has noticed:

"With regard to Issue No.6(b), the

learned counsel for the petitioners

stated that he would not be in a

position to urge that the expenditure

on the advertisements introduced in the

expenditure incurred by the first

respondent. I have already found that

no respondent. I have already found that

no other item of expenditure

incurred through prasad Publicity,

except what has been included in issue

no. 5(b) (vi) & (vii) can be included,

and issue No. 6 (b) is answered

accordingly."

Learned counsel for the appellants has not disputed the

above finding before us and as such we have no reason to

take a view different than the one taken by the High Court.

We have dealt with in the earlier part of the judgment,

the allegations relating to the expenditure incurred by the

returned candidate through Prasad Publicity, while dealing

with issues 5(b) (vi) and (vii). We shall now advert to the

findings with regard to certain amounts which have been

found to have been suppressed by the returned candidate from

the return of elections expenses.

The election petitioners relied upon the testimony of

Shri Anant Shastri PW50, who used to carry on the work of

advertising agency in the name of prasad Publicity. The

witness deposed that he knew respondent No.1 and that he had

received advertisements for publication in the newspapers

from several institutions with which respondent No.1 was

connected. Those institutions included Radhika Bai Meghe

Memorial Trust; Nagar Yuvak Shikshan Sanstha; Polytechnic;

Engineering College; Dental College; Pharmacy and Medical

College, being run by those institutions. That he had been

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releasing the advertisements on behalf of those institutions

since 1984. He went on to add that payments had been

received for the publication of the advertisements from

various organisations as also from Nagpur Shahr Zila

Congress Committee and entered in a ledger which, however,

had been destroyed by him in the last week of March 1992. He

stated that the account ledger had been destroyed by him

before he had received the summons to appear in the court as

a witness in the election petition. According to PW50 he did

not himself write the account books and that the same were

written by his accountant Shri Dhale. After referring to the

counter foil book, PW50 deposed that ledger folio No. 226

pertained to the account of Yashwantrao Chauhan Social Forum

and that counterfoil No.003363 from the same counterfoil

book also bore ledger folio No. 226 and was issued in the

name of Datta Meghe Mitra Mandal. The word "staff" which had

been written below "Datta Meghe Mitra Mandal" in the copy

had, however, been scored out later on. The witness went on

to say that counter foil No.003364 also bore ledger folio

No. 226 and and was issued in the name of Nagpur Zila

Congress Committee. Counterfoil No. 003365 which also bore

ledger folio No. 226 was issued in the name of Narayan Ahuja

while counterfoil No. 003366 with the same ledger folio No.

was issued in the name of Rajiv Sena. The witness explained

as to how the same ledger folio No. (226) appeared against

various counterfoils and stated that various organisations

which had come forward to support the candidature of Datta

Meghe and were releasing advertisements in his favour had

been clubbed together under one and the same ledger folio

No. 226. He denied the suggestion that the account against

ledger folio No. 226 was of Datta Meghe and not of the

organisations clubbed together.

The High Court after considering the evidence of Anant

Shastri PW50 in great details opined that the witness was

enjoying the patronage of the returned candidate and of

various institutions with which the returned candidate was

connected and that the witness had destroyed the ledger, a

material document, "probably because those documents, if

retained, would not have been favourable to the first

respondent". The High Court did not accept the explanation

offered by Anant Shastri PW50 regarding the time and reason

for the destruction of the ledger. The High Court repelled

the argument of learned counsel for the returned candidate

that the release order of prasad Publicity Ex. 225 relating

to advertisement Ex. 88/1 was suspicious because the date

28.4.91 did not appear on the carbon copy Ex.712, which had

been produced by Anant Shastri PW50 presumably because the

High Court felt that the witness was favouring the returned

candidate. Similarly, the High Court did not accept the

criticism made by learned counsel for the respondent in

respect of release order No. 5031 dated 28.4.91 in which the

name of Datta Meghe had appeared in the carbon copy, as the

client, though there was no mention of the date 28.4.91 on

it. The High Court noticed that though below the name of

Datta Meghe, the word "Karyalaya" had been initially

mentioned in Ex. 711, the manner in which that word had been

written would show that the word "Karyalaya" might not have

been written on 28.4.91 but on some other date. According to

Shri Anant Shastri PW50 the advertisement dated 28.4.91 had

been given to him by Shri Vasant Parshonikar on behalf of

Nagpur Nagar Zila Congress and it was for publication of the

programmes arranged by Nagpur Nagar Zila Congress Committee.

That he had given identical advertisements to four

newspapers including Nagpur Patrika and Lokmat. According to

the witness, the word "Karyalaya" had been omitted from

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Ex.325 inadvertently as he forgot to mention it. The

witness, however, stated that Datta Meghe was not his client

for the said advertisement and the words 'Datta Meghe' were

used only as a caption and the actual bill was issued in the

name of the real client, Nagpur Nagar Zila Congress

Comittee.

According to Shri Padmakar PaunikarPW3, bill Ex. 156

was issued to the party on 29.4.91 itself. It was signed by

Bhojraj PW12 and the receipt Ex.157 was also signed by

Bhojraj PW12. He admitted that both the bills EX.227 were

prepared on two different type-writers and both bore the

signatures of PW12. he Conceded that the three bills dated

29.4.91 were issued on three different formats. EX.156 was

issued on the format Nar kesari Prakashan and disclosed

Datta Meghe as the client and that advertisement had been

released by prasad Publicity; EX.227 was on the format of

Tarun Bharat and showed Yashwantrao Chauhan Forum as the

party Concerned; and EX. 603 was again on the format of

Tarun Bharat and showed Datta Meghe as the name of the

client. According to PW12, the name of Yashwantrao Chauhan

Forum was shown as client in Ex. 227 because they had asked

for the bill in the name of Yashwantrao Forum when bill Ex.

227 was issued. The witness admitted that all the three

bills were identical. The High Court dealt with this issue

relating to the advertisement Ex.88/1 which had appeared in

Tarun Bharat for a sum of Rs. 1320/- and observed:

"If one were to go only by the

different formats on which the bills

were issued and different names

which appeared on the bills, it would

appear that there was a good deal of

confusion and on the basis of the bills

themselves, no inference could be

raised as to who was the real client. If

regard is to be had to the fact that the

original release orders mentioned the

name of Datta Meghe as client, there

was no reason for Tarun Bharat to

depart from normal practice of

issuing the bills in the name of

Prasad Publicity by showing Datta

Meghe as the client, and that seems to

have been done with the bill

Ex.156) issued purportedly on 29.4.91

on the format of Narkeshri Prakashan. By

that time, the forms of Narkesari

Prakashan were being used. It would be

only when a bill witha different name

would be required that the change in

the name would appear, and the only

person, who was interested in having a

bill in the name different from the

one used in the release order, would be

Prasad Publicity which was represented

by Anant Shastri. To the extent that

Datta Meghe's name appeared in the

original release order, there is no

demur even by Anant Shastri who was a

party to the transaction. If his version

that the name of Datta Meghe was

mentioned merely as a caption was

true, there was no difficulty for him

to allow the name of Datta Meghe to

continue in the original bills which

were issued. Coupled with the

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position that all the original documents

issued by Tarun Bharat are said to have

been handed over by Anant Shastri to

a person about whose identity he was

not clear, it is difficult to accept

the position that the name of Datta

Meghe in the release orders issued to

Tarun Bharat appeared merely as a

caption."

The High Court then opined:

"In view of the above factum, there

can be no doubt, though there was a

deliberate attempt to disguise the

transaction, that the amount of

Rs.1320/- under the bill Ex.156 for

the advertisement published in Tarun

Bharat dated 21.4.91 (Ex.88/1) on the

basis of which the release order

(Ex.225), was paid bythe first

respondent under receipt Ex.157, on

29.4.91."

After hearing learned counsel for the returned

candidate at length and going through the record, in our

opinion the finding recorded by the High Court is quite

sound. The explanation for appearance of the name of Datta

Meghe in the release orders does not appeal to common sense.

Anant Shastri did not handover the documents to a 'stranger'

whose identity he could not recollect and admittedly he did

not handover the same to Shri Parshoinikar. Thus, in the

facts and circumstances on the record, the High Court was

was right in concluding that the expense for bill No. 156 in

respect of advertisement EX. 88/1 had been authorised or

incurred by the returned candidate. Even the challenge to

the said finding by learned counsel for the returned

candidate before us was only half_hearted. We thus agree

with the finding of the High Court and hold that the

returned candidate did incur an expenditure of Rs. 1320/-

for Bill EX.156 in respect of the advertisement published in

Tarun Bharat Ex.88/1 but failed to include the same in the

return of his election expenses. The High Court rightly

included that amount to the amount disclosed in the return

of election expenditure.

Coming now to the advertisement which appeared in the

Election Special Issue of Tarun Bharat dated 21.5.91 and for

which an expenditure of Rs.7000/- was alleged to have been

incurred by the returned candidate, we find that the plea

with regard to this advertisement was not raised by the

appellants in the original election petition and was not

even included in the first amended election petition but was

introduced for the first time by an amendment dated

18.12.91. In the verification to the election petition, the

contents of the relevant paragraphs were verified as 'partly

based on personal knowledge and partly on information

rceived from ......Tarun Bharat.....In the affidavit filed

in support of the allegations of corrupt practice, again the

contents of para 2.23 were verified as based partly on

personal knowledge and partly on information received from

the official record of Tarun Bharat. The election

petitioner, however, did not in his deposition disclose the

basis of his 'personal knowlege' for making the allegation.

In the pleadings a wide latitude was left by the election

petitioners to lead evidence on any of the various

'possibilities' detailed in the election petition. The

'vagueness' of the pleadings even after amendment shows that

the election petitioners were out on a wild goose chase and

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trying to fish for evidence so as to be able to fasten some

liability on the returned candidate or his election agent at

least in some case. PW39 Laxman Trimbakrao Joshi, the Chief

Editor of Tarun Bharat was, examined by the election

petitioners in support of the allegations made in the

petition regarding publication of the advertisement in

Election Special Issue of Tarun Bharat. He deposed that

Tarun Bharat had decided to issue an Election Special Issue

after the elections were announced and that he had

personally contacted Datta Meghe about 8 to 10 days before

the publication of the issue on telephone and had a talk

with Datta Meghe personally and had requested him for the

issuance of an advertisement, as he was a contesting

candidate. Datta Meghe, according to the witness, had told

him that he would think about the matter and admittedly,

thereafter, did not get in touch with him. The witness went

on to state that an advertisement in support of respondent

No. 1 was published in Tarun Bharat dated 21.5.91. It had

been received through Prasad Advertising Agency (Prasad

Publicity) who had also supplied the material for

publication. The witness, however, did not know whether the

bill for the advertisement had been prepared in the name of

Prasad Publicity or someone else nor did he know nor as to

who had paid the bill. He did not even know as to who had

instructed Prasad Publicity to give the advertisement or who

made the payment for the same to the Prasad Publicity. This

advertisement Ex.221 is the subject matter of three bill Ex.

192 bearing No.4167 (shown as Duplicate); Ex.234 No.4178 and

Ex.605, No.4167 (written after scoring out 4178). All the

bills are dated 21.5.91. Where as in Ex.192, which was on

the format of Narkeshari Prakashan the bill was addressed to

Prasad Publicity, showing Datta Meghe's name as the party

releasing the advertisement, Ex.234 was on the format of

Tarun Bharat and again addressed to Prasad Publicity but

showing NSUI as the client while Ex.605 was issued on the

format of Tarun Bharat and was addressed to prasad Publicity

and showed Datta Meghe as the client. The High Court after

considering the evidence of PW3, Paunikar (who had deposed

that Prasad Publicity had not placed the order); PW39 Laxman

Joshi, (who had deposed that the advertisement was received

from the Prasad Publicity that the bill had been settled by

Prasad Publicity); PW50 Anant Shastri and PW12 Bhojraj, held

that the advertisement had been issued by respondent No. 1

and that Anant Shastri PW50 had manipulated the bills and

the record to help the returned candidate.

We have carefully perused paragraphs 154 to 157 of the

judgment of the learned trial Judge dealing with the

question of the expenditure of Rs.7000/- in connection with

the advertisement Ex.221 in the Election Special Issue and

the evidence on record. Keeping in view the difference in

the three bills relating to the same advertisement and the

use of these different formats by Tarun Bharat, we find it

difficult to agree with the High Court that the election

petitioners have established that respondent No.1 had

incurred the expenditure of Rs.7000/- in respect of

publication of Ex.221. The findings appear to be rather

laboured ones and if Tarun Bharat advertising office was not

"very careful about giving the particulars to the bills

which they issued and that the bills were not issued from

bound book" as observed by the High Court, no

adverse.inference could be drawn against the returned

candidate. Indeed neither Shri Paunikar PW3 nor Bhojraj PW12

had any talk with Datta Meghe in respect of any of the

advertisement and from the testimony of PW39 Laxman Joshi,

it is not possible to hold that pursuant to the talk he had

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with the returned candidate, the advertisement in question

had been published by the returned candidate himself and not

by or on behalf of NSUI in whose favour the bill had been

drawn. As already noticed neither in the verification of the

petition nor in the affidavit, PW39 had been disclosed as

the source of information. The appellants have not explained

the basis for making the said allegtions. The findings of

the High Court in our opinion are based on surmises and

conjectures and we agree with Mr. Manohar, learned senior

counsel for the returned candidate that in the face of the

vague pleadings and inconclusive evidence led by the

election petitioner coupled with the discrepent evidence of

PW39, who admittedly was not shown as the source of

information for the said allegation, it is not possible to

hold that the advertisement in question, Ex.221, had been

released by and paid for by Datta Meghe himself. It is also

relevant in this connection to note that no release order

had been got produced by the election petitioners in respect

of this advertisement which could disclose who the real

client was. We, are therefore, of the opinion that the

material on the record was not sufficient to fasten the

liability for the publication of the advertisement in the

Election Special Issue of Tarun Bharat Ex. 221 for Rs.7000/-

on the returned candidate. We, accordingly, set aside the

finding of the High Court and hold that Rs.7000/- was not

spent by the returned candidate for the publication of

Ex.221.

The High Court also found that an amount of Rs.9900/-

in respect of Ex.258 had been suppressed by the returned

candidate from the return of his election expenses. The

receipt Ex.258 shows that an amount of Rs.9900/- was paid on

20.5.91 by Sharad Pawar Mitra Mandal for the publications of

the advertisement. A consolidated bill had been issued in

the name of Sharad Pawar Mitra Mandal as the publisher.

According to PW4, Ashok Jain, the advertisements which

appeared in Lokmat and Lokmat Samachar Ex.83/18 and 83/19

dated 12.5.91 against bill No.257 had been given for

publication by Narayan Ahuja and Sharad Pawar Mitra Mandal.

The witness admitted that in the bill, the name of Narayan

Ahuja was not mentioned and that the payment for the bill

had been made by Sharad Pawar Mitra Mandal. From a careful

consideration of the observations of the High Court in paras

183 to 187, the pleadings and the evidence in that behalf,

we find that recourse has been taken by the learned trial

Judge to surmises and conjectures to hold that the

expenditure had in fact been incurred by respondent No.1 in

respect of the said advertisement. There is not even an iota

of evidence on the record to show that the first respondent

had incurred the expenditure of Rs.9100/- as alleged by the

election petitioners in their evidence, though not

specifically pleaded in their election petition both

original and amended. The election petitioners had learnt

about the role being played by Narayan Ahuja even before

they filed the election petition. It was for them to have

examined Narayan Ahuja to elicit from him as to whose funds

he was utilising for making payments for publication of

various advertisements. The petitioners chose not to examine

him for reasons best known to them. We do not think that

there was any obligation on the part of the returned

candidate to have examined Narayan Ahuja and lead negative

evidence to the effect that no funds had been provided to

him by the returned candidate and that the payments had been

made by the parties who were responsible for the publication

of various advertisements through him. The observations of

the High Court that Narayan Ahuja was a person "who had no

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financial or political background for representing

organisations", is clearly based on conjectures because the

evidence on the record does show that Narayan Ahuja had been

working for the political parties and without there being

any pleading or evidence on the record, it was to say the

least rather unfair for the High Court to conclude that

Narayan Ahuja had "neither any financial status nor any

political background". We do not find it possible to agree

with the High Court that the returned candidate had

suppressed the amount of Rs.9100/- in respect of Ex.221

(receipt Ex.258) and accordingly set aside the said finding

of the High Court, which is not based on any satisfactory

material on the record.

The finding of the High Court in respect of some of the

items as detailed in Annexures 8 to 15, involving an

expenditure of Rs.22900/-, in our opinion are equally

fallacious and conjectural. The same are not based even on

correct appreciation of evidence. Recourse has been taken to

surmises and imagination to return these findings. We find

it difficult to subscribe to the view of the learned trial

Judge which is not supported by any material on the record.

The positive evidence led by the election petitioners is

that the returned candidate had not himself or through his

election agent given any of the advertisements for

publication and had not accepted any responsibility for

making payment in respect of any of those advertisement,

even though the advertisement were issued for the

furtherance of his election prospects. There is no direct or

circumstantial evidence led by the election petitioners to

show that the amount paid in the name of Sharad Pawar Mitra

Mandal had been placed at the disposal of the said Mandal by

the returned candidate or his election agent. There is no

evidence even to suggest that respondent No.1 had undertaken

the responsibility of making the payments in connection with

the expenses incurred by Sharad Pawar Mitra Mandal. The

election petitioners, for reasons best known to them, chose

not to examine any witness from Talmale Bandhu, Punjab

Woodcraft, Ranjit Engineering Works, Nitin Furniture, Sharad

Pawar Mitra Mandal, D.M.M. Mandal and various other

organisations under whose names either the advertisements

had been published or who had according to the evidence made

payments for those advertisements as per the bills and

receipts on the record. If any evidence was led to the

effect that none of the persons, parties or organisations

had in fact issued the advertisements or they or anyone of

them had denied the making of any payment, it may have been

possible to argue that those advertisements may have been

got published by the first respondent himself or through his

election agent or through some other persons with his

consent or with the consent of his election agent and in

that event the onus may have shifted to the returned

candidate to explain the source of the expenditure and in

the absence of any satisfactory explanation it may have been

possible to draw an inference that it was the money of the

returned candidate. Since no such evidence was led and no

proof was submitted in support of the alleged charge, the

question of shifting of onus on the returned candidate to

prove his non-liability did not arise. The High Court,

therefore, was not justified in saddling the returned

candidate with any expense other than Rs.1320/- in addition

to the expenses disclosed by him in the return of his

election expense.

Thus, on the settled principles extracted in an earlier

part of this judgment, we find that the election petitioners

have miserably failed to discharge the onus of proving

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various charges levelled by them against the returned

candidate regarding the commission of corrupt practice under

Section 123 (6) of the Act. The High Court was, justified in

holding that the returned candidate had not committed any

corrupt practice as envisaged by Section 123 (6) of the Act

and in dismissing the election petition. However, the High

Court fell in error in holding that certain items of

expenditure totalling Rs.58,2220/- had been suppressed by

the returned candidate and deserved to be included in the

return of his election expense. Except to the extent of

Rs.1320/-, no other liability can be fastened on the

returned candidate in respect of the other items of the

alleged expenditure on publication of advertisements etc.

The election appeal consequently fails and is dismissed with

costs. The cross-objections to the extent indicated above

succeed and are allowed. The costs are assessed at

Rs.10000/-.

Before parting with the judgment we would, however,

like to express our disapproval of the manner in which

amendments of the election petition were allowed on

occasions more than once and how evidence was allowed to be

brought on the record against the pleadings and settled

legal principles.

Section 86(5) of the Act deals with the amendment of an

Election Petition. It lays down that the High Court may upon

such terms as to costs or otherwise, as it deems fit, allow

amendment in respect of particulars but there is a complete

prohibition against any amendment being allowed which may

have the effect of introducing either material facts not

already pleaded or of introducing particulars of a corrupt

practice not previously alleged in the petition. The first

part of Section 86(5) of the Act, therefore, is an enabling

provision while the second part creates a positive bar. Of

course, the power of amendment given in the Code of Civil

Procedure can be invoked by the High Court because Section

86 of the Act itself makes the procedure applicable, as

nearly as may be, to the trial of election petition, but it

must not be ignored that some of the Rules framed under the

Act itself over-ride certain provisions of the Civil

Procedure Code and thus, the general power of amendment

drawn from the Code of Civil Procedure must be construed in

the light of the provisions of the election law and applied

with such restraints as are inherent in an election

petition. It appears to us that the High Court did not

properly consider the provisions of the election law while

repeatedly allowing amendments of the election petition in

the present case. The High Court allowed an application

Ex.27 filed by the election petitioner for permission to

amend the petition on 28.11.91. Yet another application for

amendment of the election petition, Ex.44 was again allowed

by the High Court on 18.12.91. The petitioner filed still

another application, Ex.47A, to again amend the election

petition and the High Court allowed the same on 18.1.92.

Even after the pleadings were completed and the issues

framed on 21st of January 1992 and a part of evidence had

been led by the parties, the High Court allowed one more

application filed by the election petitioner No.1, Ex.701,

and permitted an amendment of the election petition,

apparently to bring the evidence in conformity with the

pleadings. In the first place, the High Court ought not to

have allowed evidence to be led by the election petitioners

which was beyond the pleadings of the parties for no amount

of evidence can cure a defect in the pleadings but it was

all the more improper for the trial court to have allowed

the pleadings to be amended so as to be brought in

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conformity with the evidence already led in the case. To say

the least, it was not a desirable or a proper course to be

adopted in an election petition where, as pointed out by

this Court in Jagannath Vs. Jaswant Singh (1954 SCR 892),

the statutory requirements of the law of election must be

strictly observed. Of course, since evidence was allowed to

be led, though beyond the pleadings without any objections

from the opposite side, the court could have evaluated and

analysed the same to determine the worth of that evidence,

which in the facts and circumstances of the case came under

a cloud but to allow the amendment of the pleadings with a

view to confer a `legal status' on the evidence already led

was to say the least improper. The reasons given by the

learned trial judge to allow the election petition to be

amended repeatedly ignores the sanctity which is attached to

the pleadings and the affidavit filed in support of an

election petition, which under law is required to be filed

within a prescribed time and those reasons do not impress

us. We need say no more on this aspect of the case.