GAJANAN KRISHNAJI BAPAT AND ANOTHER v. DATTAJI RAGHOBAJI MEGHE AND OTHERS

The Judgment of the Court was delivered by

H DR. ANAND, J. This appeal under Section 116-A of the Repre-

G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 195

sentation of People Act 1951 (hereinafter referred to as the Act), by two A 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. B 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 c declared as the duly elected candidate from the said Constituency after setting aside the election of the returned ~1.!_didate. The challenge to the election of respondent No.1 was majnly bated on the allegations of com- mission of various corrupt practices by him 'and/or his election agent detailed in the petition. D Appellant No.1 was at the relevant time the vice President of Bhar- tiya Janta Party (Nagpur City) Nagpur while appellant No.2 was a worker of the Bhartiya Janta Party. Respondent No. 2, Shri Banwarilal Bhagwan- das Purohit, the defeated candidate had been sponsored as a candidate by the Bhartiya Janta Party while respondent No.l Datta Raghobaji Meghe, E the returned candidate, had been sponsored by Congree (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 Besides respondents 1 and 2, the other candidates, who had contested the election and had not withdrawn their candidatures from the contest, numbering more than forty two were also joined as respondents to the election petition. F The main case of the appellants projected before the High Court and canvassed before us against the returned candidate was that the expendi- ture 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 expendi- ture lodged under Section 1B of the Act with the District Election Officer G 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.l was shown to have been incurred by the political party, some other sympathetic associa- tions, organisations, individuals, friends and well-wishers, the said expen- H

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A diture in fact had been incurred and/or authoris.ed 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 B 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 C had placed his own funds in their hands to meet the expenditure. Accord- ing 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 D was guilty of committing the corrupt practice under Section 123(6) of the Act and his election was, therefore, liable to be declared void and respon- . dent No. 1 also disqualified for committing the corrupt practice.

Respondent No. 1 before filing his written statement raised a prelimi- E nary 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 applica- tion Ex.17 was allowed to the extent that the allegations made in the F 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 directe:d to be struck off. Against the order of rejection of the preliminary objection raised in Ex. 16, respondent No. 1 prferred a special leave petition being SLP(C) No. 19165-66/91 in this G Court which was dismissed on 20th December 1991 by the following order:

"The special leave petition is 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."

G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.] 197

Subsequetly, 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 drt 28.11.1991 and the necessary correc- tions were carried out in the election petition. Again an application Ex. 47/A filed by the appellants seeking further amendment of the verification clause of the petition was allowed by the Court on 18.1.1992, after an B e.arlier application, Ex. 44, filed by the appellants seeking amendment of the eleciton petition had been allowed on 18.12.1991.

A detailed written statement was thereafter filed by respondent No. 1

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 Committee and Nagpur Gramin Congress Commit- tee 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 of 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 F Respondent No. 1 to amend the written statement made through applica- tion Ex. 49 was allowed on 9.1.1992.

From the pleadings of the parties, the following issues were framed on 21.1.1992:- G

(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 H

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A office of the Maharashtra State Handloom Corporation on 17.5.91 during the Tenth Lok Sabha Election from 23, Nagpur Parliamen- tary Constituency?

(b) Do the petitioners further prove that the said meeting was _.,.. addressed by the respondent No. 1? B (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 199-1?

(d) Do the petitioners prove that the said declaration of increase c in the labour charges was made by respondent No. 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 furthe~prove that the ~aid declaratio~ m~de by respondent No. 1 also am~qnts to undue mfluence conshtutmg commission of corrupt practite U!!der 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 saidI election?

(3) Do the petitioners prove that the respondent No. 1 has not maintained correct and proper accounts as is required to be _ F 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 G expenditure annexed as Annexure 7 to the petition, on the follow- ing 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, H by way of office rent?

G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 199

(ii) payments made to M/S vishwa Bharti Typing Institute, Nagpur. A (iii) payments made to M/S Prince Travels, Nagpur, for hiring autorickshaws and taxis.·

(iv) payments made to M/S Pramod Automobiles, Nagpur. B (v) payment 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 men- C tioned 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 D 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, Nagur and the said firm received a total amoutl.t of Rs. 2,25,000 from respondent No. 1? E (ii) Do the petitioners prove that respondent 1 got printed 3,25,000 · posters of different sizes though those posters show that they were issued by President, Nagpur District Congress Committee and the entire expenditure of these posters to the tune of Rs. 3,40,250 was made by respondent No. 1? F (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. 2,83,000 as given in Annexure G 11 and was incurred by respondent no. 1 by paying the same to persons mentioned in Annexure 10?

(iv) Do the petitiones 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 H

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A 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 th.e petitioners prove that about 12,40,830 letters such as those at Annexure 13 $ 14 were got prepared by the respondent B 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 Sarya Dharma Sambhav Samajik Sanghatna, the expenditure re- quired in fact was incurred by respondent No. 1 to the extent of c Rs. 12,40,830?

(vi) Do the petitioners prove that advertisement in newspapers at Annexure A at SI.Nos. A2, AS, A7, A8, A10, A14 to A19, A22 to A27, A28(b), A30(a) (first part) A30 (b) (second part); Annexure Bat Sl. Nos. B4 to B9, BU to B14, B17 and B18, Annexure Cat D Sl. Nos. Cl, C2, C4, CS, C10, C12, C14 to C18, C23 $ C24. Annexure D: at Sl. Nos. Dl, D2, D3, DS, D7, D8, DU, D13 and D15; Annexure Eat Sl. Nos. Ei, E2, E9 and E10; Annexure F, At Sl. Nos. Fl, F2, F3, F6, F10, F14 and F16; Annexure G at Sl. Nos Gl, G2 and G3; Annexure Hat Sl. Nos. HU to H14, H17 and H8 E 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 -

F Annexure A: at S.Nos. A6, A9, AU to A13, A20, A21, A27(a), A28, A30(b) (first part) and A31(b);

Annexure B: At S.Nos. Bl, B2, B3, BlO, B15, B16 and B19.

G Annexure C: at S.Nos. C3, C6 to C9, CU, C13, C19 to C22.

Annexure D: at Sl. Nos. D6, D9, D10, D12 and D14.

Annexure E : At SI.Nos. E3 to E8.

H Annexure F: at S.Nos. F3, FS, F7 to F9, FU to F13, & F15;

G.K. BAPAT v. D.R. MFJ1HE[DR.ANAND,J.) 201

Annexure G: at S.Nos. G4 to G8; A 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. B

(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 and alleged in para C 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 newspapers and there- D by 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. 39,500 on 14.1.91 E 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, although a wireless F message dated 26.4.91 to the contrary was received by the Return- ing 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. G 3 to represent himself as the officiel 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 H

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A the petition and the allegations made in paras ·1 to 13 of 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 account of the commission of corrupt practices under Section 123(1A) and Section U3(2) and Section B 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 Parlimentary Constituency to the Tenth Lok Sabha? c (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? D (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? E 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, al- F lowed 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 G 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

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.) 203

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. 58,220 apart from the expenditure shown by him in the return of election expen- diture but since the addition of the said amount, to the amount of expen- diture 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 C 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 findings of the High Court in respect of those issues of which correctness has not been disputed before us. D 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 f~rmalities as provided by the Act and the Rules made thereunder are required to be strictly complied with. The statutory require- ments of election law are to be strictly obsrved because the election contest E 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 v. Debi Ghosal, [1982] 3 SCR 318, this Court observed: F

"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 G 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 printiples of Equity apply but only those rules which the statute makes and H

204 SUPREME COURT REPORTS [1995} SUPP. 2 S.C.R.

A 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 B 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 em- C phasised 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 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, based on allegations of commission of corrupt practice, the stand- ard 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 v. Rao Birendra Singh & Anr., [1970] 3 SCC 239;0m Prabha Jain v. Charan Das & Anr., [1975] Supp. SCR 107; Daulat Ram _Chauhan v. Anand Sharma, [1984} 2 SCR 419 and Quamarul Islam v. S.K Kanta and Others, [1994} Supp. 3 SCC 5.

H By this proposition, however, we should not be understood to mean

G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 205

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 (Sec- tion 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 h~s 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. D While on this point it will be also pertinent to mention that the election petitioner has to establish the charge by proof beyond reasonable doubt and not merely by preponderance of probabilities as in civil action. In Surendra Singh v. Hardayal Singh, AIR (1985) SC 89 at p.97, this Court held it as very well settled and; E "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 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 v. Sajjan Singh, AIR (1985) SC 236 "such an approach would defeat and frustrate the very laudable and sacrosaanct object of the Act in maintaining purity of the electoral process".

Uniformally accepted that charges of corrupt practices are to be equated with criminal charges and proof thereof would be not H

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A preponderance of probabilities, as in civil action, but proof beyond reasonable doubt.

We are in respectful agreement with the above view. Some times direct evidence· about the conunission of corrupt practice may not be forthcoming or available and in that case, the charge may be proved by B producing circUmstantial evidence but the courts, in such cases insist, that each of the circumstances must be proved individually and all the cir- cumstances 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 v. S.K Kanta and Others c (supra); Raj Narain v. Indira Gandhi, [1976] 2 SCR 347; Ch. Razik Ram v. 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 D 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 . E 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 Seeton 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 infonnation in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to

.. G.K. BAP AT v. D.R. MEGHE [DR. ANAND, J.] 207

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. Balak1ishna v. George Femandez and Others, AIR (1969) SC 1201.

The jurisdiction to try an election petition has been vested in the High Courts. Election petitions are generally speaking tried by experienced B Judges of the High Courts. Those learned Judges have the benefit of observing the witnesses when they give evidence. Therefore, the apprecia- tion 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 v. Mohan Lal C Gautani, 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 commis- sion of corrup_t 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 p 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 ~r authorised by him or by his election agent between the date of publication G fo 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 per&ons or by any individual, H

p. 208

A (other than the 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 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 B 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 c incurred by the candidates for the Parliamentary and Assembly Constituen- cies 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 commis- D sion 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 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 auth01ised by the candidate or his election agent. An expen- diliure incurred by a third person, which is not authorised by the candidate or his election agent is not a corrupt practice. In Magh Raj Patadia v. 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 empliasised 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 expen-

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 209

diture beyond the prescribed limit had been incurred in connection with the election of the retumed candidate, but he must go futther and prove that the excess expendtire was authmised or incwred with the consent of the retumed candidate or his election agent. In Raj Narain v. Indira Gandhi, [1976] 2 SCR 347 this Court reaffirmed the above view and taking note of the Amend- ment 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 can- c didate 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, D sympathisers and well-wishers do sometimes incur 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 v. Union of India, AIR (1958) SC 1133, a E 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 F a distinct and unique place. They are looked upon as guardian angels 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 t.he generality of the p~ople attempt to voice or ventilate their grievances. Considering, also the power which they wield in the administration of Governmental affairs, a special G conferment of benefits on them in the matter of mobilities govern- ing the election process cannot be regarded as unreasonable or arbitrary."

The. Constitution Bench thus emphatically laid down that unless the H

p. 210

A expenditure is m 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 B petitioner successfully establishes that the funds were provided by the returned candidate, it woud 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" t~at has been spent. In order that c 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 th~- 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 incured and/or authorised by Respondent No. 1 F 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 cin;:umvent the law and escape from the consequence of incurring _and authorising ~xpenditure 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 state- ment showing the expenditure allegedly incurred and authorised by Respondent No. 1 was given in paras 2.24 of the election petition. At the trial, however, item 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

G.K. BAP AT v. D.R. MEGHE [DR. ANAND, J.] 211

besides the expenditure disclosed in the return of expenses filed by A 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 B Bharat dated 28.4.1991. \ Rs. 7,000.00 for the advertisement in Tarim Bharat - Election Special.

Rs. 9,100.00 for the advertisment in Lokmat Dt. c 12.5.1991 (Sharad Pawar Mitra Mandal)

Rs. 22,9Q!l.OO in view of the findings recorded on issue no. 5(b)(vi) & (vii). D 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 fou.nd that the return of expen- diture. filed by Respondent No. 1 should have been for a sum of Rs. E 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 com~tted the corrupt practice within the meaning of Section 123(6) of the A.ct. 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 findigns 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 MIS Raj Automobiles for purchase of fuel Etc. H

p. 212

A 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 Mis. 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 .D 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. 17,900 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 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. G 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 1.5.1991to16.6.1991. He also proved a cash memo dated 16.6.1991 for bill No. 2503 (Ex.681) for sale of 10 litres of petrol sold to respondent No. L The witness admitted that receipt No. 843 dated 12.7.1991 (Ex. 680) was in respect of bill Nos.

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 213

401 to 405 for the consolidated amount of Rs. 12,152.40 and went on to say that the payments had beene 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 eritered in their accounts. "We did not sell either oil or petrol besides these to Datta Meghe" B was the categorical statement made by PW36 Gadge.

The appellants also examined Shri Prakash Baidya PW53. This wit- ness 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 C Assembly Constituency for BJP, the party to which both the appelants 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 litres and that in one litre of oi~ the run of the vehicle would be about 1000 kms. on an average consumption at the rate of 10 D 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 G 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 H

214 SUPREME COURT REPORTS (1995) SUPP: 2 S.C.R.

A 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 pur- chased more fuel than the one shown by him in his return of expenditure, B the High Court relied upon the petrol-oil 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. c 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 appellants had asserted that there had been sup- pression of the use of 1180 litres of petrol worth Rs. 17,900 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 calcula- tions did not base itself on the oil-petrol ratio but multiplied the consump- tion of petrol for one of the cars (MH-31G-1727), which was admittedly used by respondent No. 1by3 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 disclosd 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, PW 53, 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

.. G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.]

automobile engineer. In the election petition nothing was said abut the petrol-oil ratio as the basis from which the appellants had infen;ed that 215

A

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 appellant 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, Rl Wl, 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 hm regarding the oil-petrol ratio or as to why so much of oil had been purchased for so little fuel. In this 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 apellants 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 sup- pressed 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. G The High Court, as already noticed, found the suppression of Rs. 18,277.60 on the calculation b~sed on the quantity of petrol purchased for vehicles No. MH-31-G-1722. The tot.al petrol purchased for that vehicle was shown as 470 litres and the amount of oil purchased for that vehicles was shown to be 22 litres. Obviously, the ratio of oil-petrol as deposed to H

p. 216

A 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 shoud 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 then 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 B 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. 17,900 only. c 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 e~en 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 only conjectural but is based on surmises and not on any evidence. Except PW1 who made a vague state- ment to the effect that he had seen the vehicles pleaded in the election petition, on the roads throughout during the elections, without indicating when, where and which vehicle, no other evidence was produced to show the exent 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 witnesses 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 the number ·of occasions when the returned candidate had been so seen in different localities 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 vehicles No. 1722 {which was made the basis for

G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.] 217

calcualtion of total run by the High Court) was more extensively usd, than the other vehicles is a reasonable 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 incorrect 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 c addition of Rs. 17,900.00 in the return of expenditure of respondent No. 1 was not justified and the said amunt shall have to be excluded. The cross-objection to that extent succeeds and is allowed.

ISSUE NO. S(b)(i) & (ii) D 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 form 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 lakhs posters of 20" x 30"; one lakh fifty thousand posters of 18" x 23" 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 printig 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 ~istribution of either H

218 . SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A the voter cards or the poster. 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 ~ongress (I) through its sub- organisations, at various levels, as per the past B 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.

C The appellant Bapat PWl 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 D 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 publi- cation of the posters, he deposed that the posters had been used by the returned candidate extensively. Specillien of some of the posters were E produced as Ex.75 to Ex.78. PWl, 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 F Deotale President of Nagpur Grarnin Congress, PW42 Baliram Dakhne Cashier, PW43 Baburao Zade, Secretary of the Gramin Congress and PW46 Marotrao Kumbhalkar, Treasurer fo the Nagpur District Congress Committee. The evidence of all these witnesses however reveals that the Congress Committee had incurred the expenditure for publication of ad- vertisements, voter cards, posters etc. in connection with the election of the G 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 H the case of the ele€tion of Datta Meghe, the witnesses deposed thafihe

G.K BAPAT v. D.R. MEGHE [DR. ANAND, J.] 219

job had been entrusted to PW 43 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 oC 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 Parshionikar. He admitted that he was a sitting MLA at the time of the election. He however was not aware if Parshionikar 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 D practice which used to be followed in all earlier elections also. He went on to add 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 in connection with the elections to the local bodies, Legislative Assembly or Parliamen- tary elections. The evidence of PW42 is alJost on the same lines as that of PW41 and PW43 in all material particulars. This witness further deposed that he had learned from PW43 Baburao Zade that an amount of Rs. 40,000 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 G 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 fr6m 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 H

p. 220

A from the Bank Pass Book of the Gramin Congress. The testimony of PW43 which supports the testimony of PW41 reveals that about 30,000 to 40,000 voter cards besides some handbills worth Rs. 2000 to Rs. 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 wit- nesses stated that since persons who bought the coupons or gave donations B 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 fo Nagpur Nagar Congress Committee deposed on the same lines as PW41 to PW43, PW46 c 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 bt:en 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 t~e 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 Parishionikar. 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 printig work. He disclosed the names of the persons who had ap- proached him on behalf of different candidates to place orders in connec- G tion 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 Parshonikar had approached him on behalf of Nagar Zila Shehr H Congress and that the printing work was got done by Shri Pantle on behalf

- G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.]

of the Yuvak Congress. PW54 gave details of the various posters printed A by him and by reference to ledger Ex.738/9, stated that an amount of Rs. 221

50000 has been shown to have been credited to the account by the Presi- dent 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 B 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 c candidate. The returned candidate in his deposition denied to have authorised or incurred any expense as alleged by the election petitioners in connection either with the printing of voter cards or the posters etc. and maintained that he had not even taken the responsibility to reimburse the expenditre on behalf of any one and that no expenditure in that behalf had been incurred by ane 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 prmting 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. I F The argument of Dr. Ghatate however is that Thakre PW54, the .... Manager of Shakti Offs~t 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 G 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 H

p. 222

A us at all. There is no material brought on the record to even suggest let along 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 B 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 c 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 voter cards and posters and have not brought any circumstance on the record to show that the returned ca~didate 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 ~ertainly is not a good practice. It leaves a lot of scope for soilng 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 in- curred, so that there could be some accountability. The practice being followed as per the evidence introduces the possibility 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

G.K. BAi'AT v. D.R.MEGHbtDR.ANAND,J.] 223

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 detremine "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) E In para 2.20 of the election petition it has been pleaded that respon- dent 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. F 1 allegedly received by V~jay Shinde and Vinayak Gode PW49 were an- nexed 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 Sarve Dhanna Samajik Sangathan, the expen- diture for the same was in fact authorised and incurred by respondent No. G 1 himself. It was pleaded that there were 1240830 voters in the constituency and, therefore, respondent No. 1 was alleged to have incurred an expendi- ture 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 H

-, 224 SUPREME COURT REPORTS r1995) SUPP. 2 S.C.R.

A 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 B 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 SaTVa Dltarma 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 expen- -- c diture 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 assertion that all the voters in the constituency had received the letters from respondent No. 1 D 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. E 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. F Respondent No. 1 also denied to have incurred or authorised any expen- diture in connection with the printing and postage ofthose inland letters.

Appellant No. 1 Bapat, appearing as PWl 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-

G.K..BAPAT y. D.R.MEGHE[DR.ANAND,J.] 225

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 othrwise of the disputed signatures on Ex.79 and 80 (An- nexure 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 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 c 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,,appallant Bapat PWl, to the effect that he had made inquiry from the Charity Commissioner and learnt that there was no such Sangathan registered with the Charity Com- missioner, 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 is signatures. The petitioner could have produced some witness from the Sangathan to show H