Full Judgment Text
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PETITIONER:
HARISINGH PRATAPSINGH CHAWDA
Vs.
RESPONDENT:
POPATLAL MULSHANKER JOSHI & ORS.
DATE OF JUDGMENT19/09/1975
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
GOSWAMI, P.K.
UNTWALIA, N.L.
CITATION:
1976 AIR 271 1976 SCR (1) 897
1976 SCC (3) 275
CITATOR INFO :
RF 1978 SC1162 (5)
ACT:
Reprentation of the people Act-S. 123(1). Bribery-Gift
or inducement to cause defection whether bribery-The voters
must know about the gift and inducement-Burden of proof in a
case of bribery-Oath against oath whether sufficient.
HEADNOTE:
The first respondent, a candidate of the ruling
Congress was elected to the Lok Sabha from Banaskantha
constituency in Gujarat, defeating his rival candidate of
Organisation Congress. The appellant a voter in the
constituency belonging to the Organisation Congress filed an
election petition challenging the validity of election of
respondent No. 1 on various grounds. The only ground
surviving now is the allegation that respondent No. 1 or his
agents or other persons with his consent made a gift or
promise of gratification to the petitioner with the object
of directly or indirectly inducing the petitioner to vote
for respondent No 1 or to refrain from voting for respondent
No. 2. The allegation is that the first respondent’s agent
Maulvi and the respondent’s son Bipin with the consent of
the first respondent made a gift of Rs. 10,000/- and
promised to secure a party ticket for the appellant and to
construct a hostel for the Kshatriya students of the
Bansaskantha district. A specific allegation was made that
the first respondent wanted the appellant to vote for him.
It was also alleged that the first respondent asked the
appellant to convey to Madhusudan Sinhji, another voter an
offer of a party ticket for the Legislative Assembly
election, and to pay to him also a sum of Rs. 10,000/-
The High Court after considering the evidence held that
Bipin handed over Rs. 10,000/- to the appellant to bring
about the appellant’s defection from the Organisation
Congress. The High Court took the view that the object of
the gift was to bring about the appellant’s defection from
the Organisation Congress and not to induce directly or
indirectly any voters to cast their votes for the ruling
Congress candidate or to refrain from voting in favour of
the second respondent. The High Court held that the payment
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of Rs. 10,000/- and holding out inducement to build the
hostel for Kshatriya students does not amount to any offence
under the election law.
On an appeal, the appellant contended: (i) that the
first respondent or his agent or his son with his consent
induced the appellant and Madhusudan Sinhji to vote for
respondent No. 1 and to refrain from voting for respondent
No. 2.
(ii) that the whole purpose of the defection was that
the appellant and Madhusudan Sinhji should canvass votes for
respondent No. 1. particularly, from the Kshatriya voters on
the inducement of building hostel for the Kshatriya
students.
(iii) that the decision of this Court in the case of
Kalia Singh v. Gendalal requires to be reconsidered.
(iv) that there was a specific request by respondent
No. 1 to the appellant to vote for him in exchange for the
gift and inducement.
Dismissing the appeal,
^
HELD: (1) We are in entire agreement with the finding
of the High Court as regards the payment of Rs. 10,000/- to
the appellant and also the offer to build hostel for
Kshatriya students. [900-H]
898
(2) The payment of Rs. 10,000/- to the appellant was
with a view to induce him to defect from Organisation
Congress to the ruling Congress. It may carry with it the
implication that he was expected to use his influence with
the voters to vote for the candidate set up by the ruling
Congress. [901-B-C]
(3) The decision of this Court in the case of Kalia
Singh v. Genda Lal approved. The said decision does not
require any re-consideration. The expression "directly or
indirectly" is intended to cover situations where payment to
a husband, wife son or father is intended to induce the
wife, husband, father or son to vote for the bribe giver,
that would be indirect inducement. Otherwise it would be
easy for the bribe given to say that he did not bribe the
voter himself. This provision was not intended to cover a
case where money is paid to a certain person in order to
make him induce another person to vote for the person who
paid him the money would be obvious by looking at the
converse case. When a candidate or anybody on his behalf
pays any gratification to a person in order that the payment
made to him may induce the voter to vote for the bribe
giver, it is bribery. But where the gratification is paid to
a person in order that he may induce the other person to
vote for the bribe giver, it is not bribery on the part of
the bribe giver. [901-C-H, 902-A]
(4) In this case it is obvious that the primary object
of the payment made to the appellant was to induce him to
defect from the Organisation Congress to the ruling
Congress. The bargain was not for his vote. The bargain was
for defection. That is not a corrupt parctice under the
Representations of the People Act. Even if the payment was
received with the promise that he would induce the voters to
vote for the bribe giver, it will not be bribery on the part
of the bribe giver but only bribery on the part of the bribe
taker. The defection of the appellant to the ruling
Congress, if it took place, might mean that he was expected
to work for the ruling Congress. Equally it may not. The
fact of the appellant and Madhusudan Sinhji’s joining the
ruling Congress might be expected to influence the voters to
vote for the candidate set up by the ruling Congress. But,
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that would not be because of the payment made to the
appellant and Madhusudan Sinhji nor would such payment be
bribery. It is the payment to the appellant that must induce
the voters to vote for the candidate set up by the ruling
Congress in order that it might amount to bribery. It is not
enough that his defection from Organisation Congress to the
ruling Congress induces voters to vote for the ruling
Congress candidate. [902 B-E]
(5) As far as the promise to build a hostel for the
Kshatriya students is concerned, before it can be termed a
bribery the matter should come to the knowledge of the
voters. Only if the voters know that the promise has been
made to the appellant and Madhusudan Sinhji, can that
promise would induce the voters to vote for the first
respondent. In the present case, the knowledge of the
promise remained confined to the appellant. If the payment
or the promise was to induce the voters, it cannot induce
the voters unless they come to know about the payment or the
promise. It is not necessary that the voters should have
accepted the bribe but the voters must have a knowledge
about the offer. Then only it would be a bargain. Therefore,
in the present case the offer to build a hostel does not
amount to bribery. [904-D-F]
(6) But, if there was a specific request by the first
respondent to the appellant that he should vote for him in
exchange for the gift and the inducement in that case it
would be bribery and even bribery to one voter is enough to
make a election void. A specific allegation to that effect
was made in the election petition and that has not been
considered by the High Court. This Court, therefore, went
through the evidence and came to the conclusion that no such
request for vote was made to the appellant for the following
reasons.
[902H; 903A]
(i) Madhusudan Sinhji was not put a question about the
exact date on which Maulvi and the first respondent met him.
Quite possibly there was no such meeting on the 9th February
and that is why the question was not put to him. [903-E]
899
(ii) The statement of Madhusudan Sinhji is too slander
a foundation on which the argument could be built. It is,
thus, a case of the appellant’s oath against the first
respondent’s oath and in a case of serious charge like
bribery we would not be satisfied merely on the basis of an
oath against an oath.
[903-H]
(iii) Three other possible witnesses including the
appellant’s wife Pushpa who could have been examined to
establish that the first respondent accompanied the Maulvi
to the appellant had not been examined. [904-A]
(iv) No evidence was led about the first respondent’s
having asked the appellant to vote. The allegation regarding
the request to appellant to vote for first respondent is put
in merely for the purpose of election petition and not a
fact. [904-C]
(v) All parties would have proceeded on the
understanding that when the appellant defected to the ruling
Congress, he would both work and vote for the ruling
Congress. There could not have been a specific bargain for
the vote. [904-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 90 of
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1973.
From the Judgment and Order dated the 24th and 25th
July, 1972 of the Gujarat High Court in Election Petition
No. 2 of 1971.
S. N. Andley, K. J. John and Shri Narain Mathur for the
appellant.
F. S. Nariman, P. H. Parekh, Mrs. S. Bhandare and Manju
Jaitley for respondent No. 1.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. This appeal arises out of an election
petition questioning the election of 1st respondent in the
election held in March 1971 to the Lok Sabha from the
Banaskantha constituency in Gujarat. In that election the
1st respondent, a nominee of the Ruling Congress was
declared elected securing 1,16,632 votes as against 92,945
votes secured by the 2nd respondent, a nominee of the
Organisation Congress. The appellant, a voter in the
constituency, also belonging to the Organisation Congress,
filed a petition challenging the validity of the election on
various grounds out of which only those covered by issue No.
10, hereinafter set out, survive for consi deration:
"(10) Whether respondent No. 1 or his agents or/
other persons with his consent made a gift or promise
of gratification to the petitioner with the object
directly or indirectly of inducing the petitioner to
vote for respondent No. 1 or to refrain from voting for
respondent No. 2 ?"
The allegation relating to this charge in the election
petition is that the 1st respondent and his agent Maulvi
Abdur Rehman and the 1st respondent’s son Bipin Popatlal
Joshi with the consent of the 1st respondent had made a gift
and a promise of gratification to the appellant for voting
in 1st respondent’s favour. The appellant as well as one
Madhusudansinhji, who has been examined as P.W. 10, seem to
have been at that time prominent members of the Organisation
Congress and also leaders of the Kshatriya community which
formed
900
about 20 to 25 per cent of the votes in the Banaskantha
constituency. It was alleged that on February 9, 1971 the
1st respondent and Maulvi Abdur Rehman came to the
appellant’s residence and persuaded him to leave Congress
(O) and join Congress (R) offering (1) to secure a party
ticket for the appellant for the election to the Gujarat
Legislative Assembly in 1972, (2) to meet all his expenses
for that election and to pay him Rs. 10,000/- in cash
towards the said expenses, and (3) to construct a hostel for
the Kshatriya students of the Banaskantha district. A
specific allegation was made that the 1st respondent wanted
the appellant to vote for him. It was also alleged that the
1st respondent asked the appellant to convey to
Madhusudansinhji an offer of a party ticket for the
Legislative Assembly election in 1972 and to pay him also a
sum of Rs. 10,000/-. The Prime Minister was addressing a
meeting at Palanpur on that day. The appellant, his wife and
Madhusudansinhji were taken to the helipad, Palanpur when
the Prime Minister landed there and also to the dais from
which the Prime Minister was addressing a public meeting.
One Akbarbhai Chavda, convener of the District Congress
Committee announced that the appellant and Madhusudansinhji
had joined Congress (R), and asked the appellant to say a
few words. The appellant went to the microphone, took out
the bundle of notes of Rs. 10,000/- given to him and flung
it in the air and told the gathering that he and his
colleagues could not be purchased and that they would remain
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loyal to the Organisation Congress.
During the trial of the election petition
Madhusudansinhji, who had by that time joined the Ruling
Congress and Maulvi Abdur Rehman were examined as witnesses
on behalf of the appellant.
The learned Judge of the High Court after considering
the evidence before him held that Bipin Popatlal Joshi, son
of the 1st responident, handed over Rs. 10,000/- to the
appellant as a bribe to bring about the appellant’s
defection from the Organisation Congress. But he took the
view that the object of the gift was to bring about the
appellant’s defection from the Organisation Congress and not
induce directly or indirectly any voters to cast their votes
for the Ruling Congress candidate or to refrain from voting
in favour of the 2nd respondent. As regards the offer to
build the hostel for Kshatriya students he held that the
fact that a person who defects from another party to the
Ruling Congress would be expected to work for that party and
would be expected to use his personal influence in support
of the candidate of that party does not mean that the object
of bringing about the defection was to indirectly induce the
Kshatriya voters to cast their votes for the 1st respondent.
He therefore held that payment of such money and holding out
such inducement does not amount to any offence under the
Election Law and it was with regret that he had to decide
the case in favour of the 1st respondent.
We are in entire agreement with the finding of the
learned Judge as regards the payment of Rs. 10,000/- to the
appellant and also the offer to build hostel for Kshatriya
students and do not consider it
901
necessary to go into the evidence in support of that
finding. That finding is supported not only by the evidence
of Madnusudansinhji and Maulvi Abdur Rehman but also the
letter Ex. T, passed by the latter to the appellant and
Madhusudansinhji.
The question is whether that finding is enough to
establish the charge of bribery against the 1st respondent.
There is still another finding necessary in regard to the
allegations made in the petition in respect of which the
learned Judge has given no finding and that is with regard
to what happened of the 9th of February 1971. We are at one
with the view of the learned Judge that the payment of Rs.
10,000/- to the appellant was with a view to induce him to
defect from organisation Congress to the Ruling Congress. It
may carry with it the implication that he was expected to
use his influence with the voters to vote for the candidate
set up by the Ruling Congress. It has been held by this
Court in Kalia Singh v. Genda Lal & ors.(1) to which two of
us (Untwalia & Alagiriswami JJ) are party, that a payment
made to a person in order to induce him to canvass votes on
behalf of the bribe giver would not be bribery within the
definition of that word in section 123(1) of the
Representation of the People Act. It was held that it is
only in a case where the payment to a third person by itself
induces the voter to vote for the bribe giver that it would
fall under s. 123(1). Mr. Andley appearing on behalf of the
appellant tried to persuade us that that decision requires
reconsideration. After having considered his arguments we
are still of the opinion that the view taken in that
decision is correct. The object of providing that a payment
should not be made to a person in order that that payment
should induce some other person to vote for the bribe giver
is obvious. It is apparently intended to cover situations
where payment to a husband, wife, son or father is intended
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to induce the wife, husband, father or son to vote for the
bribe giver. That would be indirect inducement. otherwise it
would be easy for the bribe giver to say that he did not
bribe the voter himself and therefore it is not bribery.
That this provision was not intended to cover a case where
money is paid to a certain person in order to make him
induce another person to vote for the person who paid him
the money would be obvious by looking at the converse case.
Under s. 123(1)(B)(b) the receipt of or agreement to
receive, any gratification, whether as a motive or a reward
by any person whomsoever for himself or any other person for
voting or refraining from voting or inducing or attempting
to induce any elector to vote or refrain from voting, or any
candidate to with draw or not to withdraw his candidature is
bribery. Under this clause any person who receives or agrees
to receive any gratification as a reward for inducing or
attempting to induce any elector to vote etc. would be
receiving a bribe. The law therefore contemplates that where
a person makes any payment to another person in order to
make him use his influence to induce a third person to vote
for him that is not bribery by the person who pays but the
receipt of money by the second person for inducing or
attempting to induce another elector to vote is bribery. It
is also bribery for the voter himself to receive
902
the money. We, therefore, reiterate the view that when a
candidate or anybody on his behalf pays any gratification to
a person in order that the payment made to him may induce
the voter to vote for the bribe giver it is bribery. But
where the gratification is paid to a person in order that he
may induce the other persons to vote for the bribe giver it
is not bribery on the part of the bribe giver. It is,
however, as we have explained above, bribery on the part of
the bribe taker even when he takes it in order to induce an
elector to vote for the bribe giver.
In this case it is obvious that the primary object of
the payment made to the appellant was to induce him to
defect from the Organisation Congress to the Ruling
Congress. That is not a corrupt practice under the
Representation of the People Act. Even if the payment was
received with the promise that he would induce the voters to
vote for the bribe giver it will not be bribery on the part
of the bribe giver but only bribery on the part the bribe
taker. The defection of the appellant to the Ruling
Congress, if it took place, might mean that he was expected
to work for the Ruling Congress. Equally it may not. A
person who changes his party allegiance at the time of the
election probably might not command much respect among
electors if the 1 electors knew that he had done so after
receiving some money. Otherwise the fact that two important
persons the appellant and Madhusudansinhji, a younger
brother of the ex-ruler of Danta Stata had joined the Ruling
Congress might be expected to influence the voters to vote
for the candidate set up by the Ruling Congress. But that
would be not because of the payment made to the appellant
and Madhusudansinhji. Nor would such payment be bribery. To
reiterate, it is the payment to the appellant that must
induce the voters to vote for the candidate set up by the
Ruling Congress in order that it might amount to bribery. It
is not enough that his defection from organisation Congress
to the Ruling Congress induces voters to vote for the Ruling
Congress candidate. As we said earlier, if the payment to
the appellant came to be known as the cause for his changing
allegiance it may have a boomerang effect. It is therefore
clear that the payment made to the appellant would not have
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induced the voters to vote for the Ruling Congress
candidate. While after his defection therefore the appellant
might have been expected to work for the Ruling Congress
candidate or equally might not have been, it is perhaps
implicit that he would also vote for the Ruling Congress
candidate. Is this enough to make the payment made to the
appellant bribery ? The payment was made not for the purpose
of inducing him to vote but to make him defect to the Ruling
Congress. That was the purpose for which the payment was
made. That incidentally he might vote for the Ruling
Congress candidate does mean that the payment was made to
him in order to make him vote for the Ruling Congress
candidate. The bargain was not for his vote, the bargain was
for his defection. Therefore on this point we agree with the
learned Judge of the High Court. But if there was a specific
request by the 1st respondent to the appellant that he
should vote for him then the position would be different. In
that case it would be bribery and even bribery to one
903
person is enough to make an election void. A specific
allegation to that effect has been made in the election
petition and that has not been considered by the learned
Judge of the High Court. We shall now proceed to do so.
The appellant gave evidence to the effect that the 1st
respondent asked him on 9th February to vote for him and
made the three promises earlier referred to. He was not
cross-examined on that point but the 1st respondent in his
turn deniesd this when he gave evidence. Maulvi Abdul Rehman
speaks to his having met the appellant on February 9, 1971
but he says that the 1st respondent was not with him at that
time. Madhusudansinhji says that he had met the appellant
before the 14th and that at that time the appellant told him
that the Maulvi and the 1st respondent were insisting that
the appellant and he (Madhusudansinh) should join Congress
(R). He also denied a suggestion put to him in cross-
examination that it was not true that the appellant had told
him before the 14th of February anything about the Maulvi or
the 1st respondent telling the appellant that the appellant
and he (Madhusudansinh) should join the Congress (R) on
certain terms. This is the evidence relied on to show that
on the 9th the 1st respondent also had met the appellant. If
the appellant and Madhusudansinhji had met at Palanpur
before the 14th and the appellant then told him that Maulvi
and the 1st respondent were insisting that they should join
the Ruling Congress the meeting should have been on the 13th
or earlier and the request to him on the 12th or earlier.
Naturally having chosen to examine Madhusudansinhji, who had
by that time joined the Ruling Congress, as his witness the
appellant would not have risked putting questions about the
exact date on which Maulvi and the 1st respondent had met
him. Quite possibly there was no such meeting on the 9th of
February and that was why that question was not specifically
put to him. When that question was put to Maulvi Abdul
Rehman, who was examined as P.W. 8 a little earlier, he
denied that the 1st respondent was with him on the 9th
February. Coming to the conversation which the appellant and
Madhusudansinhji had before the 14th, if the Maulvi and the
1st respondent were insisting either on the 13th or earlier
that the appellant should join the Ruling Congress there
should have been a meeting between them a little earlier
than the 13th and it should have been on the 9th is the
argument on behalf of the appellant. But there are many
imponderables in this argument. If the Maulvi and the 1st
respondent were insisting that the appellant and
Madhusudansinhji should join the Ruling Congress it does not
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mean that they both did so at the same time. They could have
been doing it on different occasions separately. Nor does it
follow that the Maulvi and the 1st respondent met him on the
9th. Nor does it follow that on that date the 1st respondent
asked the appellant to vote for him. The statement of
Madhusudansinh is too slender a foundation on which this
argument could be built. It is thus a case of the
appellant’s oath against 1st respondent’s oath and in a case
of a serious charge like bribery we would not be satisfied
merely on the basis of an oath against oath to hold that it
has been satisfactorily established that the
904
1st respondent asked the appellant on 9th February to vote
for him. He may also mention that with regard to the alleged
visit of the Maulvi and the 1st respondent to the appellant
three other possible witnesses including the appellant’s
wife, Pushpaben who could have been examined to establish
that the 1st respondent accompanied the Maulvi to the
appellant had not been examined. A further fact which
improbabilises this story is that in the election petition
it is stated that the 1st respondent told the appellant that
he would arrange for a ticket for Madhusudansinh in the 1972
elecations and pay him Rs. 10,000/- if Madhusudansinh left
organisation Congress and joined the Ruling Congress and
voted and worked for him (1st respondent) and asked him to
convey the offer to Madhusudansinh. No evidence was let in
about the voting and what is more Madhusudansinh was not a
voter in the Banaskantha Constituency. This shows that the
allegation regarding the request to appellant to vote for
1st respondent is of the character as the request to
Madhusudansinh and put in merely for the purposes of the
election petition and not a fact. On broader considerations
also it is very unlikely that when the talk was about the
appellant and Madhusudansinh defecting to the Ruling
Congress from the organisation Congress there would have
been any talk about the voting itself. All parties would
have proceeded on the understanding that when they defected
to the Ruling Congress they would both work and vote for the
Ruling Congress. The distinction between a gift or offer
combined with the request to vote and the gift or offer to a
person asking him to work for him with the incidental result
that person might vote for him should always be kept in
mind. In such a case there is no specific bargain for the
vote. Were it not so it would be impossible for persons
standing for election to get any person to work for them who
is not also a voter in the constituency. This was brought
out by this Court in the decision in onkar Singh v. Ghasiram
Majhi(1). We would, therefore, hold that the case that 1st
respondent bargained for the appellant’s vote has not been
satisfactorily made out.
On behalf of the 1st respondent it was urged that the
actions of the appellant and Madhusudansinhji immediately
after the payment of Rs. 10,000/- and the dramatic
developments at the meeting addressed by the Prime Minister
show that there would not have been any bargaining for the
appellant’s vote. The points relied upon were (1) that it
was not said by the appellant when he threw the money into
the crowd on the 18th that he was asked to vote for the 1st
respondent, (2) that it was not mentioned in the statement
(Ex. 5) made by the appellant and Madhusudansinhji on 18-2-
1971, (3) that was not mentioned in the interview given to
the newspaper reporters found in Ex. 7 or in the newspaper
report Ex. 8. We do not consider that these things are of
much importance. At that time the most important factor was
the attempt to persuade the appellant and Madhusudansinhji
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to defect to the Ruling Congress and any request to the
appellant to vote for the 1st respondent would have been
insignificant
905
even as we have held that when requesting the appellant and
Madhusudansinhji to defect to the Ruling Congress it is not
likely that they would have been asked to vote for the 1st
respondent. The reference to the piece of evidence just
mentioned cannot be said to establish that there was no
request made to the appellant to vote for the 1st
respondent. That would have to be decided on other factors
and other evidence and on the basis of that evidence we have
already held that it is not established that the 1st
respondent requested the appellant to vote for him.
Now remains the question of the offer to build a hostel
for Kshatriya boys. Strictly speaking this does not arise on
issue 10. This is probabilised by the evidence of
Madhusudansinhji, Maulvi Abdul Rehman and the appellant as
well as Ex. T. Whether it was to be in Danta or Banaskantha
does not make much difference as long as it was for the
Kshatriya boys. The two places are near to each other though
in different Parliamentary constituencies and in whichever
place it was situate it will benefit Kshatriya boys and
there is no. doubt that if the hostel were constructed by
respondent No. 1 or the Ruling Congress party at his
instance that would induce the voters to vote for the Ruling
Congress candidate. But before that happens the matter
should come to the knowledge of the voters. Only if the
voters knew that the promise had been made to the appellant
and Madhusudansinhji that promise would induce the voters to
vote for 1st respondent. But the knowledge of the prormise
remained confined to the appellant and P.W. 10, in addition
of course to Maulvi Abdul Rehman and the 1st respondent’s
son. If the payment or the promise was to induce the voters,
it cannot induce the voters unless they come to know about
the payment or the promise. There is no evidence her that
the voters knew about the promise to build the hostel. The
bargain in such cases as we have mentioned in the judgement
delivered by us today in S. Iqbal Singh v. Gurdas Singh &
Ors. is really an offer on the part of the bribe giver that
he would do such a thing if the voters would vote for him.
It is not necessary that the voters should have accepted it.
But the voters should have a knowledge about the offer. Then
only it would be a bargain. An offer contemplated and
retained in the mind of the offerer and not articulated and
made known to the offeree will not be a bargain. It
therefore follows that in this case the offer to build a
hostel does not also amount to bribery.
In the result we upheld the judgment of the High Court
and dismise this appeal. We make no order as to costs.
P.H.P Appeal dismissed.
906