Full Judgment Text
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PETITIONER:
OM PRABHA JAIN
Vs.
RESPONDENT:
CHARAN DAS & ANR
DATE OF JUDGMENT10/04/1975
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1975 AIR 1417 1975 SCR 107
1975 SCC (4) 849
CITATOR INFO :
R 1975 SC2299 (414)
R 1978 SC 351 (5)
ACT:
Representation of the People Act (43 of 1951) Ss. 77, 116-A
and 123(6)--Corrupt Practice-Standard of proof.
Practice and Procedure-Finging by High Court in election
disputes-Interference by Supreme Court.
HEADNOTE:
Section 77 of the Representation of the People Act, 1951,
provides that every candidate at an election shall keep an
account of expenditure incurred in connection with the
election and that the total expenditure shall not exceed the
amount prescribed.
The appellant and the first respondent contested the
election to the State Legislature and the first respondent
was successful. The appellant challenged the election on
the ground, inter alia, that the first respondent was guilty
of ,corrupt practice having incurred or authorised
expenditure in contravention of s. 77. The election
petition was dismissed by the High Court.
In appeal to this Court, it was contended that there was
evidence to show that the expenditure incurred by D, in
connection with the use of two jeeps during election was
authorised by the first respondent and if that expenditure
was added to the amount shown by the first respondent as his
expenditure, the total expenditure would exceed the
prescribed limit of Rs. 9000.
During the pendency of the appeal. s. 77 was amended by
inserting two Explanations in the section. Explanation 1
provides that the 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 be expenditure in connection
with the election, incurred or authorised by the candidate
or his election agent.
Dismissing the appeal,
HELD : (Per curiam) The allegation of corrupt practice
against the respondent has not been proved beyond reasonable
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doubt. [109H & 123F]
(Per M. H. Beg, J.)-If a charge of a corrupt practice is
held to have been established against a candidate, it may
have grave repercussions on his reputation and political
future; and, therefore, prudence requires that the stricter
standard of proof of a criminal charge should be applied.
[109F]
The High Court has held that as the precise connection of D
with the first respondent was not satisfactorily
established, the charge of corrupt practice against the
first respondent must fail. This Court will not, without a
,better reason than merely that another inference on the
evidence is possible, disturb such a finding even on a
statutory first appeal on facts. There is, if a bare
balance of probabilities could decide the case, sufficient
circumstantial evidence to connect the expenditure incurred
by D with the respondent who did not even produce any
account books, though the law requiem him to maintain
satisfactory accounts to support his return of expenses;
yet, if the rules of circumstantial evidence were applied
with the strictness with which they axe applicable in
criminal cases it must be held that the case against the
first respondent has not been proved beyond reasonable
doubt. [109D-E-F-G-H]
108
(Per Y. V. Chandrachud and A. C. Gupta, JJ.) : (1) The
appeal has to be decided in the light of the Explanation
added to s. 77.
(2)The findings of fact recorded by the High Court should
not be disturbed in an appeal under s. 116-A, unless there
was some serious error in the findings. In the present
case, the Judge who tried the petition, had recorded his
impression about the demeanour of the witnesses whenever he
thought necessary. The findings based solely on the
demeanour of the witnesses cannot be reversed in appeal, but
the conclusions of fact recorded upon a consideration of the
probabilities can be tested to see if they contain any
serious error [121H 122A]
(3)A charge of corrupt practice is quasi-criminal in
nature and must be proved beyond reasonable doubt. [122D]
(4)Before the High Court the parties proceeded on the
footing that the question raised related to both
allegations, namely, that the respondent incurred or
authorised the expenditure incurred on the two jeeps, and,
therefore, the scope of the inquiry in appeal cannot be
limited only to the question whether the respondent himself
incurred the expenditure. [121A]
(5) There is no evidence of the respondent incurring or any
direct evidence of his authorising the expenditure incurred
for the jeeps. [121D]
(6) From the fact that the respondent used the jeeps once
or twice, it could not be inferred that he paid for their
hire, because, it is well known that candidates at an
election very often use their supporters’ vehicles. [121D-E]
(7)There is also no reliable circumstantial evidence to
connect the respondent with the expenditure incurred by D.
[121H]
(8)The respondent did not produce his account of election
expenses-his case being that he had destroyed the papers
after preparing his return of election expenses. From the
fact of non-production of accounts no adverse inference can
be drawn against the respondent that the expenditure was
really incurred by the respondent himself. D who made the
payments gave evidence, and he denied that the respondent
authorised him to make the payments and this evidence was
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accepted by the High Court. [121 E-F]
D. P. Mishra v. Kamal Narain and Anr. [1971] 1 S.C.R. 9,
distinguished.
(9)The circumstances proved in the case are: (a) that D
worked for the respondent; (b) that D hired the two jeeps
and used them for the respondent’s election campaign; and
(c) that he sometimes operated from the respondent’s
election office. But these circumstances do not justify the
inference that the respondent put D in charge of his
transport arrangements. [122F-H]
(10)As regards the money spent by D it is not believable
that he spent his own money. But the only alternative
inference is not that it was the respondent’s money that was
spent and that the respondent authorised D to spend it,
especially when there is evidence to show that the
respondent’s election campaign received financial assistance
from other sources, such as the Jan Sangh Party. [123B-C]
(11)A note book put in evidence by the appellant seems to
suggest that a part of the money paid for the 2 jeeps was
taken from the respondent. But, the note book was not kept
in the regular course of business, it was not a reliable
document and there was no independent evidence proving the
correctness of the entries therein. Therefore, it is not
possible to rely on the entries in the note book and it must
be left out of consideration. [120E-121C-122H-123A]
(12)It may be difficult to get hold of evidence in an
election dispute to prove such a corrupt practice, but the
law requires proof beyond reasonable doubt. [123E-F]
109
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1551 of
1973.
From the judgment and order dated 31st August 1973 of the
Punjab & Haryana High Court in Election Petition No. 42 of
1972.
L. M. Singhvi, A, Gupta, S. L. Yadava, S. K.. Dhingra and
S. Swarup, and J. B. Dadachanji, for the appellant.
H. L. Sibal, S. S. Khanduja, Susnik Kumar Jain, Vishwanath
K. V. and Kapil Sibbal, for respondent No. 1.
The Judgment of the Court was delivered by
BEG, J.-I would like to point out that the High Court, in
the judgment under appeal, recorded the finding, after a
very comprehensive and detailed discussion of the whole
evidence "that the two jeeps in question actually worked in
support of the respondent’s election campaign right from
February 18, 1972 to March 11, 1972 under the charge and
direction of Duni Chand". Nevertheless, the High Court
finally held that, as the precise connection of Duni Chand
with the contesting respondent was not satisfactorily
established, the charge of corrupt practice against the
respondent must fail. It is the well established practice
of this Court (see e.g. B. B. Karemore & Ors. v. Govind &
Ors.) (1) that it will not, without a better reason than
merely that another inference, on evidence on record, is
possible, disturb such findings even on a statutory first
appeal which is not confined to questions of law.
We cannot forget that, if a charge or a corrupt practice, as
an electoral offence, is held to have been established
against a candidate, it may have grave repercussions on his
reputation and political future. Therefore, prudence
requires that we should apply the stricter standard of proof
of a criminal charge in such a case and not decide the case
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on a bare balance of probabilities.
It appears to me that, although there is, if a bare balance
of probabilities could decide the case, sufficient
circumstantial evidence to connect the expenditure incurred
by Duni Chand with the respondent, who did not even produce
any account books though the law requires him to maintain
satisfactory accounts to support his return of election
expenses, yet, if we are to apply the rules of cir-
cumstantial evidence with the strictness with which they are
applicable in criminal cases, it may be held here that the
case against the contesting respondent is not proved beyond
reasonable doubt despite all the circumstances appearing
against him. There are other circumstances which suggest
another possible inference. Hence, we are left in doubt on
the question whether he or the Jan Sangh party, from which
he broke away after his election, had incurred these
expenses through Duni Chand. 1, therefore, though not
without some hesitation, agree with the conclusion reached
by my learned brethren that this appeal must be dismissed.
I also agree that, in the circumstances of this case, the
parties should bear their own costs.
(1) A.I.R. S.C. 405.
110
GUPTA J.-This is an appeal under Section 116A of the Repre-
sentation of the People Act, 1951 (hereinafter referred to
as "the Act") from an order passed by the Punjab and Haryana
High Court at Chandigarh dismissing the election petition
filed by the appellant calling in question the election of
the first respondent to the Haryana State Legislature from
the Kaithal Assembly Constituency in 1972. Poll was taken
on March 11, 1972. The first respondent who secured 26095
votes was elected defeating the nine other candidates who
contested the election. Appellant Om Prabha Jain who polled
22673 votes secured the next position in the contest. In
her election petition the appellant hereinafter also
referred to as the petitioner, alleged various corrupt
practices against the returned candidate seeking his
election to be declared void under sec. 100 of the Act and
also prayed for an order under sec. 99 naming him guilty of
corrupt practice so that he might be disqualified under sec.
8A of the Act. In this appeal the challenge is confined to
the allegations of corrupt practice under sub-sec.(6) of
sec. 123-"incurring or authorising of expenditure in
contravention of Section 77". Sec. 77 as it stood when the
election petition was presented was in these terms:
"77. Account of election expenses and maximum
thereof.-(1) 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 authorized 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 dates inclusive.
(2)The account shall contain such particulars
as may be prescribed.
(3)The total of the said expenditure shall not
exceed such amount as may be prescribed."
For the State of Haryana the prescribed limit on election
expenses was Rs. 9000.
During the pendency of the appeal in this Court an
Ordinance, namely, the Representation of the People
(Amendment) Ordinance, 1974 was promulgated amending sec. 77
of the Act by inserting two explanations to sub-sec. (1)
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thereof. The explanations read as follows : -
Explanation 1.-Notwithstanding any judgment,
order or decision of any court to the
contrary, any expenditure incurred or
authorized 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
111
candidate or his election agent) shall not be
deemed to be, and shall not ever be deemed to
have been, expenditure in connection with the
election incurred or authorized by the
candidate or by his election agent for the
purposes of this sub-section :
Provided that nothing contained in this
Explanation shall affect-
(a) any judgment, order or decision of the
Supreme Court whereby the election of a
candidate to the House of the People or to the
Legislative Assembly of a State has been
declared void or set aside before the
commencement of the Representation’ of the
People (Amendment) Ordinance, 1974;
(b) any judgment, order or decision of a
High Court whereby the election of any such
candidate has been declared void or set aside
before the commencement of the said Ordinance
if no appeal has been preferred to the Supreme
Court against such judgment, order or decision
of the High Court before such commencement and
the period of limitation for filing such
appeal has expired before such commencement.
Explanation 2.-For the purposes of Explanation
1, political party" shall have the same
meaning as in the Election Symbols
(Reservation and Allotment) Order, 1968, as
for the time being in force.’.
The Representation of the People (Amendment) Ordinance, 1974
was subsequently repealed and replaced by the Representation
of the People (Amendment) Act, 1974 (Act 58 of 1974)
inserting the aforesaid explanations in sec. 77 of the Act.
The appeal before us does not attract the proviso to
Explanation 1 and sec. 77 with the explanations added will
govern this case.
The particulars of the charge that the returned candidate
incurred ,or authorized expenditure above the prescribed
limit are set out in clauses (a) to (1) of paragraph 14 of
the election petition. Dr. Singhvi, learned counsel for the
appellant, confined his submissions to the expenditure
incurred in connection with the use of two jeeps bearing
Nos. 6424 and 1116 mentioned along with several other
vehicles in clause (e) of paragraph 14. It is alleged in
that paragraph that though the first respondent showed in
his return his total expenditure as Rs. 5844/24 p., his
expenses exceeded in any case the prescribed limit of Rs.
9000/-. The contents of paragraph 14 of the election
petition are denied in paragraph 14 of the written statement
of the first respondent wherein he has stated that he never
used most of the vehicles mentioned in the election petition
including the jeeps 6424 and 1 1 16.
112
Of the Issues framed, only Issues Nos. 14, 15 and 16 are
relevant for the purpose of this appeal. These Issues are
as follows:-
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"(14) Whether respondent No 1 incurred or
authorised expenditure on the various items
enumerated in subparagraph (a) to (1) of
paragraph 14 of the election petition.
(15) If any of the items of expenditure
referred to in the preceding issue is proved
to have been incurred by the returned
candidate, does the addition of that extra
amount to the amount of expenses shown by the
returned candidate to have been incurred by
him in the return of election expenses take
the total amount spent by him above the
statutory limit of Rs. 9,000/- ?
(16) If the preceding issue is proved, has
the returned candidate not committed the
corrupt practice defined in section 123(6)
read with section 77 of the Act ?"
Before we turn to the evidence bearing on these issues it
would be appropriate to state here certain facts in the
background which must be kept in mind in considering the
evidence. The appellant contested the election as a
candidate of the Indian National Congress.The first
respondent had filed several nomination papers, two of them
as a candidate of the Bhartiya Jan Sangh and two as indepen-
dent. He had signed the pledge of the Jan Sangh, but
ultimately be contested the election as an independent
candidate. He had been a member of the Municipal Committee
of Kaithal on the Jan Sangh ticket and was elected its
President in April, 1971 as a nominee of that party. Some
time after the election in question in the present appeal
was over, the first respondent was served with a charge-
sheet by the Bhartiya Jan Singh, Haryana State, alleging
that he had betrayed the Organisation by failing to join the
Jan Sangh Legislature Party which, it was said, he had
promised to do as soon as the result of the election was
declared; finally he was expelled from the Party. These
facts are not in dispute.
The first witness examined by the petitioner to prove that
the two jeeps in question were hired for the first
respondent is P.W. 3 Jagjit Singh, a taxi driver of Delhi.
He proves the letter Ext. P.W. 3/1, said to have been given
to him by Brij Mohan, a neighbour, who asked him to send
four or five jeeps to respondent Charan Dass at Kaithal.
Ext. P.W. 3/1 is a letter dated February 20, 1972 addressed
to Brij Mohan by one Duni Chand Gupta. The letter
translated into English from the original Urdu reads as
follows
"Kaithal
20-2-72.
Babu Brij Mohan Ji.
113
It is requested that I had taken from you two
Nos. jeeps on dated 18-2-1972 bearing No. 1116
and 6424 for the election of Shri Charan Dass,
for which I had paid you the amount of Rupees
two thousands in Advance. Now I require five
Nos. jeeps more. If you can manage then in-
form at once so that may send the advance
through somebody. Inform at once, hire
charges are no consideration, the work should
be done.
Sd/- Duni Chand Gupta,
Kaithal.
C/o Shri Charan Dass, Election Office
Kaithal."
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Two things are to be noted in this letter, that Duni Chand
claims that he had paid Rs. 2000 in advance for the two
jeeps bearing numbers 1116 and 6424, and that he gives his
address, care of Charan Dass election office, Kaithal. The
evidence of P.W. 3 is that he could secure only two jeeps
from a place called Abohar which he sent to Charan Dass.
The next witness who speaks about these two jeeps is P.W. 5
Puran Chand. He is a shopkeeper in District Shri Ganga
Nagar in Rajasthan. HE claims that he was the owner of jeep
numbered 6424 and his cousin Munshi Ram owned the other
jeep, 1116. His evidence is that he and Munshi Ram left
Shri Ganga Nagar on February 13, 1972 with the two jeeps
reaching Delhi the next day where they contacted Brij Mohan,
a commission agent, for getting their "vehicles hired out".
On February 17, Duni Chand came to Brij Mohan seeking to
hire two jeeps. Brij Mohan settled the terms of hire which
were that Duni Chand would pay Rs. 130/- per day for each
jeep from February 18 to March 11, 1972 besides Rs. 51per
day to the driver of each jeep and also pay for the petrol.
The witness says that Munshi Ram’ and he were each paid Rs.
1000 in advance 6y Duni Chand. On March 4, Duni Chand paid
him Rs. 3500./- at Kaithal towards the hire of both the
jeeps and got a receipt from him which is Ext. P.W. 511;
the balance, Rs. 740//-, was collected later by the drivers
of the jeeps.
P.W. 6 Surja Ram and P.W. 7 Madan Lal are the drivers of
jeeps Nos. 1116 and 6424 respectively. P-W. 6 claims that
respondent Charan Dass used to go about in his jeep and the
respondent’s own car "used to remain parked in those days".
The witness states further that the respondent never went in
the jeep driven by Madan Lal. The statement that the
respondent’s car’ was Dot used during the election days is
not consistent with what appears from paragraph 14 (b) and
(c) of the election petition where the petitioner states
114
that the respondent used his car in connection with election
campaign but has not shown the expenses incurred on that
car.
P.W. 7 Madan Lal’s evidence is that on arriving at Kaithal
with the jeep the witness was deputed by Duni Chand to work
at village Cheeka. This witness claims that the first
respondent travelled in his jeep on two occasions, first on
the 18th of February and on Another day, thus contradicting
P.W. 6 who had said that the respondent never used the jeep
driven by P.W. 7.
From the evidence of P.W. 3, P.W. 5, P.W. 6 and P.W. 7 it
would appear that Duni Chand hired the two jeeps in question
to help the election campaign of the respondent.
Duni Chand, also known as Duli Chand, was examined as a
Court Witness. His evidence is that he and six or seven
other persons had formed a party to work against the
Congress candidates in the Kaithal and Pehowa
constituencies. This party, however, was not given a name
nor did it hold any meeting or issue any poster. He says
that each member of this party contributed Rs. 1000/- to
carry on the election propaganda. He admits having written
the letter Ext. P.W. 3/1, and that he had hired the two
jeeps in question through Brij Mohan to work against the
Congress candidates in the aforesaid two constituencies.
According to him the members of this party went round in
those jeeps to canvass support for respondent Charan Dass as
they considered the respondent to be the best of the
candidates. Asked about the reason why in the letter Ext.
P.W. 3/1 he had given his address as "care of Charan Dass’
election office, Kaithal", he says that this was done "to
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facilitate Brij Mohan’s man to find me for collecting the
balance of the hire money......... the man could have
inquired the address of my shot) from the election office of
Charan Dass". The witness denies that he had given that
address because he was "incharge of the election work of the
respondent relating to employment of motor vehicles". The
witness adds that he and his friends who worked for first
respondent at the election did not maintain any record
containing particulars of how the jeeps were employed by
them during those days. In answer to a question put to him
in cross-examination regarding a note-book which figures
prominently in this case, Duni Chand admits that tic not
book, Ext. P.W. 8/5, is partly in his handwriting.
This note-book which we will consider in due course was also
written partly by Raghbir Chand who like Duni Chand was
examined as a Court Witness. He claims to be one of the
group of seven or eight persons spoken of by Duni Chand who
were helping the first respondent.
The petitioner herself deposing as P.W. 30 has narrated how
she came to know of the said two jeeps being employed by
respondent Charan Dass. According to her fifteen to twenty
jeeps were used by him for his election work. She noted the
numbers of these
115
vehicles in a diary; this record is based on her personal
observation and also on information received from her
workers. In answer to a question put by the Court she read
out the numbers of the jeeps noted in her diary in the
following order: "5948, 6055, 6009, 2574, 1710, 9997, 6424,
1116, 6675, HRJ-5324, HIM-4147, 6170 and 8363."
The note-book, Ext. P.W. 8/5, seems to be the most
important documentary evidence produced on behalf of the
petitioner to prove that the two jeeps in question had been
employed by respondent Charan Dass. On some pages of this
note-book are recorded in an extremely haphazard manner the
numbers of several vehicles with certain dates and figures
seeming to indicate when some of the vehicles first reported
for duty and how they were deployed. The note-book also
mentions different sums of money stating or hinting at the
sources’ wherefrom these amounts were collected and includes
certain entries suggesting payments made for the use of
these vehicles. The two jeeps, 6424 and 1116 are among the
vehicles mentioned in the note- book. The petitioner
states in her evidence that P.W. 9 Mohan Bahadur brought the
note-book to her at her residence in Kaithal in the last
week of September, 1972. P.W. 9 Mohan Bahadur, whose
deposition was recorded on October 5, 1972, states that the
note-book was given to him "last week" by Punnu Ram, Joint
Secretary of the Kaithal Jan Sangh. According to the
witness, Punnu Ram told him that Jan Sangh had expelled
Charan Dass from the Party and that the note-book would be
of help to the petitioner in her election petition. The
witness adds that Punnu Ram knew that the witness was a
supporter of the petitioner.
In this note-book the name of Anil Kumar Gupta, a son of the
first respondent, appears to be written at two places.
Admittedly, Anil Kumar was a B.A. student in the R. K. S. D.
College, Kaithal, and one of his subjects was Civics. Pages
3 to 8 of the note-book contain certain notes on Civics.
According to Mohan Bahadur and the petitioner there were
three loose sheets of paper inside the notebook. These
loose sheets of paper which have also been produced with the
note-book are: (1) a Hindi manuscript containing instruc-
tions for the polling agents (Ext. C.W. 2/1), (2) bill of a
loudspeaker dealer in the name of Charan Dass for Rs.
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101/50p. (Ext. P.W. 24/1), and (3) a receipt in Hindi dated
March 6, 1972 for Rs. 41/50p. for hire of loudspeakers,
signed by one Shadi Lal Shad, a worker of the Jan Sangh
Party.
As stated already, it is difficult to find any order or
method in the entries recorded in this note book though the
fact that it belonged to the respondent’s son might appear
to lend some authenticity to the document. Respondent
Charan Dass (R.W.15) and his election agent Gian Chand
(R.W.14) both however deny that any such notebook was
maintained by them or that they bad asked Duni Chand or
Raghbir Chand to make the entries therein. It is also not
clear, how the notebook found its way lo the petitioner.
Punnu Ram, Joint Secretary of the Kaithal Unit of the Jan
Sangh Party, who is said to
116
have handed over the note-book to Mohan Bahadur was
examined by the respondent (R.W.13). Punnu Ram denies having
made over any note-book to Mohan Bahadur whom he says he did
not know. His evidence is that he saw the note-book for the
first time in Court.
Punnu Ram admits that lie worked for the first respondent at
the election on behalf of his Party. The witness
proves a document (Ext.R.W.13/1) containing a statement
signed by Shadi Lal Shad that he had "got prepared" 470
small flags and 1000 stencils for the total cost of Rs.
38.80p. This document contains the signature of Punnu Ram
who appears to have verified the correctness of its
contents. In his deposition Punnu Ram explains that the Jan
Sangh "had got the flags and the election symbol of
respondent No. 1 prepared as the party was supporting
respondent No. 1". The witness adds that the Jan Sangh
spent a total amount of Rs. 400/- or Rs. 500/on the election
of the first respondent. This part of Punnu Ram’s evidence
is relevant to the other aspect of the case, namely, who
really paid for the two jeeps if it was found that they had
been employed for the respondent’s election campaign.
Raghbir Chand who claims to have made some of the
entries in the note-book was examined as a Court Witness.
His evidence is that Janardan Singh who was his friend and a
member of the Jan Sangh had asked him to make certain
entries in the note-book. He says that the first column of
page 260 and the whole of page 261 of the notebook were in
his handwriting. The two jeeps, 1116 and 6424, are
mentioned in the first column of page 260 with the word
’Delhi’ in Urdu written against them. According to Raghbir
Chand pages were blank when the note-book was
brought to him by Janardan Singh. Raghbir Chand says that
lie did not know why Janardan Singh wanted him to write in
the note-book and that he obliged his friend without asking
any questions. The writings on pages 260 and 261 appear to
be in opposite directions, which is one example of the lack
of order and method in maintaining the note-book. Raghbir
Chand’s explanation is that after he had finished what he
was asked to write on page 260 and closed the note-book,
Janardan Singh thought of getting some more entries made by
him and opened the note-book at page 261 upside down, and
Raghbir Chand copied on the page as he found it whatever
Janardan Singh dictated to him.
Janardan Singh who claims to be a worker of the Jan Sangh
was also examined as a Court witness. According to him
Pawan Kumar, Joint Secretary of the Jan Sangh at Panipat,
came to see him towards the end of March, 1972 and left with
him the note-book (Ext. PW. 8/5) and a Paris containing
certain figures in English and wanted him to get these
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figures which were all numerals, copied into the note-book.
The witness did not ask him why, and as a worker of the Jan
Sangh proceeded to "obey his orders". He says that he and
Raghbir Chand had "blind faith" in each other, and at his
request Raghbir Chand copied the figures from the Parcha on
pages 260 and 261 of the note-book. These pages however
contain certain names of places and persons and also other
words; according to Raghbir
117
Chand these also were in his handwriting, but Janardan Singh
maintains that the Parcha from which Raghbir Chand had
copied did not contain any such names or words. Janardan
Singh’s evidence is that later Pawan Kumar collected the
note-book from him.
At the conclusion of Janardan Singh’s deposition, the
learned Judge appears to have recorded a note of his
impression that "throughout his statement, this witness has
been displaying nervousness, and prevaricating and avoiding
to give straightforward answers to the questions put to
him".
Duni Chand’s version is that what he had- written in the
notebook was at the instance of Rattan Lal, President of
Ward No. 8, Kaithal Jan Sangh Party. Duni Chand says that
Rattan Lal expressed displeasure at the respondent failing
to honour his promise to join the Jan Sangh legislature
party, if elected, and enquired of Duni Chand if he could
produce any evidence which would go against the respondent
in the election dispute, then pending in the High Court.
Duni Chand made over to Rattan Lal the receipt, Ext.
P.W.5/1, given by Puran Chand for Rs. 3500/- paid towards
the hire of the jeeps 1116 and 6424. Five or six days
thereafter, Rattan Lal again came to see Duni Chand with a
diary and a note-book. Duini Chand’s evidence is that he
copied on the different pages of the note-book ,whatever
Rattan Lal read out from the diary. This was about a month
after the election. Duni Chand says that when thenote-book
was brought to him, it contained all the other writings thatare
now there. Duni Chand’s evidence is that he did not questionRattan
Lal in what way the note-book would be used against theresponde
nt
but wrote to his dictation on such pages of the note-book
and in such order as he was told. According to Duni Chand,
Rattan Lal took away the diary and the note-book after the
writing was done.
Certain entries in the note-book apparently corroborate the
oral evidence as to some payments made towards the hire of
the two jeeps but it does not record all the payments
claimed to have been made. For instance, P.W.6 Surja Ram,
driver of jeep No. 1116, stated that he had signed in a note
book on March 12, in acknowledgement of the receipt of Rs.
740/-, being the balance of the amount due on account of the
two jeeps. There is however nothing in the note-book to
support this statement. Assuming Surja Ram’s evidence to be
true, one would have expected to find his signature in the
notebook.
Pawan Kumar, Provincial Secretary, Haryana Jan Sangh, was
the first witness to be examined on behalf of the
petitioner. He disclaims all knowledge of the Parcha or
the note-book which, according to him, he saw for the first
time in court. His evidence adds to the mystery surrounding
the note-book. The witness states that the first respondent
was in fact a Jan Sangh candidate but was allowed to contest
as an independent as a matter of election strategy. He adds
that he went to Kaithal on March 14, 1972 and requested the
respondent to declare that he would join the Jan Sangh
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legislature party.
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The respondent is said to have replied that he would think
over the matter and then inform the witness. The
respondent, it is alleged, was thereafter asked on the
telephone on March 16, to attend the Working Committee
meeting of the State Jan Sangh at Karnal to be held the next
day. Though the respondents reply on the telephone was that
he would attend the meeting, he did not ultimately do so.
About two days after the meeting, the witness went again to
the respondent for an answer but still the respondent did
not give any definite reply. The witness also states that 4
or 5 days after the result of the election was declared, the
respondent came to Jan Sangh office to have the return of
election expenses prepared in consultation with the witness
and the President of the State Jan Sangh Party. The witness
proves the notice. Ex. P.W. 1/3, issued on March 25, 1972
asking the first respondent to show cause within one week of
the receipt of the notice why he should not be expelled from
the party because of his failure to join the Jan Sangh
legislature party in breach of his previous assurance.
Pawan Kumar goes on to say that in the course of his visits
to Kaithal to supervise the election campaign in support of
the respondent, he used to find Duni Chand sitting in the
respondent’s election office and balloting duties to the
different vehicles and also making payments in that
connection. it is also the evidence of this witness that
though the first respondent was really a Jan Sangh
candidate, the Party did not incur any expenditure on his
election. According to him even the expenses of the public
meeting arranged by Jan Sangh in support of the respondent
at Kaithal on March 4, 1972 were met by the respondent
himself.
The evidence of Pawan Kumar does not seem to be altogether
consistent and some of his statements also appear to
contradict what certain other witnesses have said. Pawan
Kumar has stated that 4 or 5 days after the result of the
election was declared he met the respondent when the
latter came to the Jan Sangh office to have his return of
election expenses prepared. The result of election was de-
clared on March 13, 1972. On March 14, the witness claims
to have seen the respondent at Kaithal to request him to
declare that he would join the Jan Sangh legislature party.
On March 16, be requested the respondent on telephone to
attend the meeting of the Party to be held the next day.
On March 17, the meeting was held but the respondent did not
attend. On March 19, the witness again went to Kaithal to
have a discussion with the respondent and on March 25, the
show-cause notice was issued. From the above list of dates
which appear from Pawan Kumar’s own evidence it is difficult
to reconcile his other statement that about 4 or 5 day after
the respondent was declared elected, the respondent came to
the Jan Sangh-office to have the return of election expenses
prepared in consultation with the witness and the
President of the Jan Singh Party. Pawan Kumar had also
stated that there was no telephone in the office of the Jan
Sangh Party at Kaithal. This is contradicted by P.W.18 B.
L. Khanija, Accounts Officer, Telephones, South Division,
Ambala. His evidence
119
based on his office record is that the Secretary, Bhartiya
Jan Sangh, Kaithal, was the subscriber of the Kaithal
Telephone No. 497 from February 16, 1972 to March 15, 1972.
This was, P.W.18 added, a casual connection and was
installed in the house of Rattan Lal. P.W.18 further stated
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that at the time of installation of the telephone Rs. 180
were charged as advance rent, Rs. 30 as installation charges
and Rs. 1000 as adjustable security, and that after
adjusting the outstanding bills against the security deposit
of Rs. 1000, the balance was refunded to the subscriber.
The total expenses incurred by the subscriber of this
telephone came to Rs. 385. The original application dated
February 4, 1972 for installation of this casual telephone
connection was also produced in Court, an English trans-
lation of (Ext.P.W.18/3) reads as follows:
"Bhartiya Jan Sangh,
Kaithal Mandal.
Kaithal, dated the 4th February, 1972.
To,
The S.D.O.
Telephones,
Karnal.
Subject :-New connection for the office of Bhartiya Jan
Sangh.
It is submitted that a. telephone connection is required for
the office of Bhartiya Jan Sangh at Kaithal for one and half
month.
Kindly get the same installed.
Yours faithfully,
Sd/- Amar Nath, M.C.
Bhartiya Jan Sangh,
Kaithal"
Pawan Kumar’s assertion that Jan Sangh did not spend any
money on the respondent’s election is belied not only by
R.W.13 Punnu Ram but also by another witness who deposed for
the petitioner. It is P.W. 24 Inderjit. He is an employee
of a shop at Kaithal that lends loudspeakers on, hire. P.W.
24 states that one Rai Kumar, whom he described as a
supporter of the Jan Sangh, came to his shop to hire loud-
speakers on March 4, 1972 and he paid charges a few days
thereafter. This witness proves the receipt, Ext.
P.W.24/1, for Rs. 101/50p. given by him. The receipt
appears to have been made out in the name of the respondent,
Charan Dass. The witness states that though the receipt was
in the name of Charan Dass he never came to the shop for the
loudspeakers and the hiring charge was paid by Rai Kumar.
P.W. 24 adds that he had written the name of Charan Dass on
the receipt at the instance of Raj Kumar.
The inconsistent statements of Pawan Kumar and the
contradictions between his evidence and that of P.W.24
Inderjit who also was a witness for the petitioner, to say
nothing about the evidence of
10SC/75-9
120
Punnu Ram, though he too was a member of the Jan Sangh,
suggests that either Pawan Kumar had no knowledge of at
least some of the facts he was talking about or that some of
his statements were deliberately false.
On the evidence discussed above the findings recorded by the
High Court may be summarised as follows
1.Duni Chand went to Delhi on or about February 17, 1972
and hired the two jeeps in question at the rate of Rs. 130
per day for each jeep with effect from February 18, 1972.
Duni Chand had paid Brij Mohan Rs. 2000 towards the hire of
the two jeeps and a further sum of Rs. 3500 to Puran Chand
(P.W. 5) on March 4, 1972 at Kaithal. Altogether Duni Chand
spent Rs. 6240 for the two jeeps. Both the jeeps were used
in the respondent’s election campaign from February 18 to
March 11, 1972 under the charge and direction of Duni Chand.
2.The note-book, Ext. P.W.8/5, belonged to the respondent’s
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son Anil Kumar Gupta and the notes on Civics that this book
contains were in his handwriting. The other entries in the
note-book relating to matters concerning the election of the
respondent were made partly by Duni Chand and partly by
Raghbir Chand. The note-book is not a document maintained
in the regular course of business and contains certain
haphazard entries which cannot be used for foisting
liability on any one without definite and clear proof of the
genuineness and correctness of these entries. The,
witnesses who proved some of the entries in the note-book,
Duni Chand and Raghbir Chand, have both denied that the
entries are genuine. However, their that the entries
were fabricated about a month after the election and in the
circumstances stated by them is not believable. The fact
that the evidence of these two witnesses was false in this
regard does not necessarily prove the correctness or
genuineness of these entries. Another circumstance which
makes the note-book suspect is the fact that the numbers of
the various jeeps mentioned in the note-book are recorded
therein in the same sequence in which they appear in the
petitioner’s diary. She claims to have noted in her diary
the numbers of the jeeps working for the respondent several
months before the note-book was made available to her. This
is difficult to explain away as coincidental.
Having found that the two jeeps had been hired by Duni Chand
to be used in the respondent’s election campaign, and were
in fact so used, the question that the High Court set for
itself to answer was, whether on these findings it could be
said that the first respondent incurred or authorised the
expenditure of Rs. 6240 spent on account of these two jeeps.
There was some dispute before us as to whether the
allegation of authorization could arise on the issue as
framed. It was contended on behalf of the respondent that
reading issue No. 14, which is the relevant issue, carefully
in the light of the statements made in the various sub-
paragraphs of paragraph 14 of the election petition, it
would appear that it raised only the question whether the
121
respondent himself incurred the expenditure. However, it
seems to us that before the High Court the parties proceeded
on the footing that the issue covered both the allegations
and the scope of the enquiry cannot be limited at this
stage.
The High Court answered the question in the negative on the
following reasons. All the witnesses deposing for the
petitioner said that the payments in respect of the jeeps
were made by Duni Chand. Of course there are entries in the
note-book, Ext. P.W. 8/5, which suggest that part of the
expenditure incurred on account of the two jeeps was paid by
the respondent’s brother Arjan Das, and also that some
amount was taken from the respondent himself. But the High
Court found that the note-book which does not appear to have
been kept in the regular course of business was not a
reliable document in the absence of independent evidence
proving the correctness of the entries therein. The High
Court was further of the view that from the fact that the
respondent used these jeeps once or twice, it did not
necessarily follow that he paid for their hire, it being
well-known that candidates at an election very often use
their supporters’ vehicles. There is no evidence of the
respondent incurring or any direct evidence of his
authorising the expenditure incurred for the jeeps. The
respondent did not produce his account of election expenses,
his case being that the papers containing the accounts were
destroyed by him after the return of election expenses was
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prepared. It was argued on behalf of the petitioner,
relying on the case of D. P. Mishra v. Kamal Narain &
Anr.,(1) that from the aforesaid fact an adverse inference
should be drawn against the respondent and it must be held
that the expenditure was really incurred by the respondent
himself. The High Court pointed out that in D. P. Mishra’s
case the worker of the returned candidate who was supposed
to have incurred the expenditure in question in that case
was not examined, and this circumstance considered along
with the fact that the returned candidate bad not chosen to
produce his accounts proved the case against him. In the
instant case, however, Duni Chand who made the payments was
examined but be denied that the respondent authorised him to
make these payments. This part of Duni Chand’s evidence was
accepted by the High Court though he was not considered a
straightforward witness and a substantial part of his
evidence was disbelieved. The decision in D. P. Mishra’s
case (supra) indeed turns on facts somewhat different from
the facts of this case. The High Court has found that there
is also no reliable circumstantial evidence in this case to
connect the respondent with the expenditure incurred by Duni
Chand.
It now seems settled that the findings of fact recorded by
the High Court should not be disturbed in an appeal under
section 116-A of the Act unless there was some serious error
in these findings. It appears from the record of this case
that the learned Judge of the High Court recorded his
impression about the demeanor of the witnesses whenever he
thought necessary. The findings based solely on the
demeanour of the witnesses cannot be reversed in appeal, but
(1) [1971] 1 S.C.R. 9.
122
the conclusions of fact reached upon a consideration of the
probabilities can be tested to see if they contain any
serious error. We find no reason to disturb any of the
findings of fact recorded by the High Court summarized
above. These findings appear to be justified on the
evidence which we have discussed. We ’agree with the High
Court’s views on the credibility of the witnesses. We also
agree that the note-book is not a reliable document in the
absence of independent evidence to prove the genuineness of
the entries therein. What we have to decide is, whether the
High Court was right in its conclusion from these findings
that the first respondent did not authorise Duni Chand to
spend any amount on the hiring of the two jeeps in question.
The allegation that Duni Chand was in-charge of the
transport arrangements for the respondent if true, would be
a circumstance which, taken with other circumstances, might
indicate that it was the respondent’s money that Duni Chand
was authorised to spend. If the note-book is left out of
consideration, as it must be, the other evidence on record
does not appear to us to be sufficient to prove this
allegation.
It is well established that a charge of corrupt practice is
quasicriminal in nature and must be proved beyond reasonable
doubt. There is no direct evidence that the respondent
himself paid for the two jeeps. The question is whether it
is possible to infer from the circumstances discussed above
that Duni Chand was authorised by the respondent to spent
the said amount of Rs. 6240 for these vehicles. In the case
of Samant N. Balkrishna & Anr.’v. George Fernandez & Ors.(1)
this Court held that the circumstantial evidence led to
prove corrupt practice must exclude every hypothesis except
that of guilt. What are the circumstances here from which
one could infer that Duni Chand was authorised by the
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respondent ? It is alleged that Duni Chand was in-charge of
the transport arrangement for the respondent’s election.
That Duni Chand worked for the respondent at the election is
proved. It has also been found that he hired the two jeeps
and used them for the respondent’s election campaign. It
may also be said that the letter, Ext. P. W. 3/1, suggests
that Duni Chand used to operate at times from the
respondent’s election office. But from these circumstances
only, would the inference be justified that the respondent
put Duni Chand incharge of his transport arrangements ? The
High Court has taken the view, which we endorse,- that at an
election people work for a candidate prompted by various
motives even if they are not employed by the candidate to
work for him. The story that Duni Chand along with six or
seven other persons formed, a group to support the
respondent has been disbelieved, and rightly. But, even
then, it is difficult to say with certainly that it was the
respondent who engaged Duni Chand to be incharge of the
vehicles used in his election campaign. There is no direct
evidence that the respondent put Duni Chand in funds and one
hardly expects to find such evidence in a case like this.
We have found that the note-book is not a reliable document.
It is therefore
(1) [1969] 3 S.C. R. 603 at 637.
123
not possible to rely on the entries in the note-book which
seem to suggest that a part of the money paid for the two
jeeps was taken from the respondent. The High Court did not
believe that the notebook was entirely fabricated but felt
it was unwise to rely upon it. The mystery of the note-book
has not been solved, but the unsolved mystery cannot be used
as proof to bring home the charge against the respondent.
Whose money it was then that Duni Chand spent-? It is not
believable that Duni Chand spent his money, but the- only
alternative is not that it was the respondent’s money which
he authorised Duni Chand to spend. It has been found that
the Jan Sangh incurred some expenditure on the respondent’s
election campaign in spite of the denial of Pawan Kumar that
the Party did not spend anything. We do not find it
possible to accept the statement of Punnu Ram, Joint
Secretary of the Kaithal Unit of the Jan Sangh Party, that
the total amount spent by the Party on the respondent’s
election was between Rs. 400 and Rs. 500. Apparently, the
High ’Court also did not rely on this part of Punnu Rams
evidence. It is not necessary however to investigate what
amount exactly came from which source. It is clear that the
respondent’s election campaign received financial assistance
from other sources, which makes it difficult to reach the
conclusion that none but the first respondent himself spent
the amount in question. We do not know what our conclusion
would have been had the case fell to be decided on the
probabilities only, but is no,. possible to say that it has
been proved beyond reasonable doubt that Duni Chand paid for
the jeeps from the money he received from the respondent and
the respondent authorised the expenditure. Counsel for the
appellant said that it would be hardly possible ever to get
hold of such evidence in an election dispute. That may be
so, but this is how the law stands. We agree with the High
Court that the allegation of corrupt practice against the
respondent has not been proved beyond reasonable doubt.
The appeal is dismissed; considering all the circumstances
of the case, we make no order as to costs.
Appeal dismissed.
V.P.S.
124
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