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

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

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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

226 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A that no such letters had been sent by the Sangathan. The petitioners did not even summon a witness from the Sangathan alongwith the record. Had it been done and if the summons could not be served because of the alleged non-existence of such a Sanghathan, it may have been possible for the - petitioner to argue that the Sangathan was a fake organisation and that an inference may be drawn that the letters had been sent by respondent No. 1 at his expense but no such inference can be drawn in favour of the appellants in view of the facts and circumstances existing on the record. Respondent No. 1 had disclosed the name of Shri Bhasme as one of the officers of the Sangathan in his testimony and the appellants should have sought permission of the Court to summon Shri Bhasme at that stage atleast but they did not do so for reasons best known to them. We are unable to agree with Dr. Ghatate, that the evidence should have been led by the returned candidate to prove that actually the letters had been sent by the Sangathan after incurring the expenses itself and the petitioners should not be expected to lead such evidence. The onus to prove the charge was on the election petitioners and in the absence of any satisfactory evidence adduced to discharge that onus, the returned candidate was under no obigation to prove that he was not responsible for committing the corrupt practice. Again, it is not the case of the appellants that the --- expenditure had been incurred by the Sangathan, with the consent of the returned candidate or his election agent nor is it their case that the returned candidate had undertaken to reimburse the expenditure incurred by the Sangathan. The trial court, in our opinion, after properly_ considering and appreciating the evidence rightly found that there was no evidence on the record to support the plea that the first respondent had spent the amount as alleged on the postage and printing of the inland letters of the type, Annexure 13 and 14 (Ex.79 and 80) or that he had sent those letters to every voter in the constituency. From the material on the record, there is no scope even to raise a strong suspicion against the first respondent in that behalf. The appellants appear to be labouring under the wrong im- pression that once they make an allegation against the returned candidate, their responsibility is over and it is for the returned candidate to prove his innocence. It is against the essential principles of election law. At the risk of repetition it may be stated that where allegations of corrupt practice are alleged, it is for the election petitioner to prove the charge against the returned candidate beyond a reasonable doubt to the satisfaction of the H - court. The obligation of the returned candidate to rebut the allegations by

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 227

leading evidence arises only after the election petitioners have led depend- A able evidence in support of the charge of corrupt practice and not till then. The appellants have in the present case failed to do so in respect of the charge relating to issue No. 5(b)(v) and accordingly we agree with the High Court that the returned candidate was not required to refute the charge by leading evidence on this behalf. The issue is accordingly decided against B the appellants and we confirm the finding of the High Court.

Issue no. S(b)(vi) & (vii)

These two issues relate to the publication of certain advertisements in various newspapers such as Nagpur Times, Nagpur Patrika, Nav Bharat C Times, Tarun Bharat among others. There is some connection between these issues and issues 6(a), (b) and (c), which we shall deal with separate- ly. According to the election petitioners, the returned candidate had opened an account with Nav Bharat Times, Nagpur Times and Nagpur Patrika and had incurred an expense of Rs. 4_,89,424.00 for the publication of various advertisements in connection with his election in those D newspapers but the said amount was not included in the return of expen- diture and that had the same been included, the returned candidate would be shown to have incurred expenses beyond the permissible limits. The brak up of the amount (Rs. 4,89,424.00) allegedly incurred or authorised by the returned candidate as given by the appellants is as follows: E

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

(2) Nagpur Times & Nagpur Patrika Rs. 2,28,150.00

It was alleged in the election petition that ·the returned candidate had an account, Code No. M-0042 (Ex. 441), with the Newspaper Nav Bharat Times and though it was shown that the expenses for the advertisements published in the newspapers were borne by Nagur District Congress Com- mittee. Gramin Congress Committee and some other organisations and individuals, but in fact the payments had been made out of the amounts provided for by Respondent No. 1 to the said Committees, organisations and individuals. In the written statement Respondent No. 1 denied that he had incurred or authorised any expenditure himself or through his election agent in respect of the various advertisements appearing in Nav Bharat Times, Nagpur Times and Nagpur Patrika as alleged in the election peti- tion. It was also denied that the advertisements had been published at the H

228 SUPREME COURT REPORTS [1995] SUPP. 2S.C.R.

A instance of or with the knowledge of Respondent No. 1 or that he had placed his funds at the disposal of the party and others to discharge the liability arising out of the publication of the advertisements.

We shall first take up the publication of the advertisements ' .. in Nav Bharat Times for which it is alleged that an expenditure of Rs. 2,61,274.00 B was incurred or authorised by Respondent No. 1. .- PW6 Narayan Gawalani, the Manager of Nav Bharat Times while appearing as a witness for the election petitioner deposed that the newspaper receives advertisements thr!:mgh advertising agencies, organisa- C tions and individuals. The agencies which had released advertisments during the elections were Prasad Publicity, Yugdharma Consultants and Commercial Services (Y.C.C.S.). For Prasad Publicity and Y.C.C.S. they had a running account while Congress had ilo running account with Nav Bharat. He then explained how various advertisements appearing in the paper came to be published and disclosed the sources from which the same had come and also identified the person or p~rty who had made payments in respect of_ those advertisements. He went on to depose that whenever the advertisements were received, they were entered in a register called the "RO Input Register" but the same had not been preseved and had since -' been destroyed; That there was no other proof pertaining to the receipt and publication of advertisemets. He produced the ledger and proved various advertisements, release orders, bills etc. During his cross- examina- tion, he was confronted with various receipts and he want on to say

"None of the adve1tisements of which the total works out to Rs. 26690 F as stated ·above were 'gi.ven by Datta Meghe. The payment also was not made by· Datta Meghe for those advertisements, nor did he take responsibiiity for making the.re payments."

While explaining the document Ex.407 and the existence of words "(Datta Meghe Election advertisements)" written in ink in the copy of Ex. 407, he expressed ignorance as to when or by whom those words were inserted in the office copy. He admitted that in respect of Ex.409A, the words "Datta Meghe Account" did not appear in the original of the receipt but could not say as to who had written those words in the copy. The. witness in response to the question regarding the association of Respondent No. 2, with the partners of the firm stated

G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 229

. "I know Ramgopal Maheshwari, Prakash Maheshwari. They are the partners of the firm which owns Nav Bharat. It is true that on many common social forums they and Respondent No. 2 Ban- warilal Purohit are together. I do not know if they belong to the same community. It is not true that our management has forged the duplicates of receipt books at the instance of Banwarilal B Purohit in order to boster his false claim in ·the petition.

The witness categorically asserted that "M 00042 is the code number of "Datta Meghe Election Advertisement Account" and that all payments ·against the said code number and account had been received from Nagpur Shahr District Congress-I Committee and that no payment was received from Datta Meghe or from anyone else on behalf of Datta Meghe.

PW7, Shri Sapre, Manager, Accounts of Nav Bharat Times, deposed that Manmohan Maheshwari is the Editor of Nav Bharat Times. That receipt Ex. 406 was issued first in the name of Datta Meghe but later on it was corrected to show the name of the party as Congress Committee and it was done under his instructions because it had been brought to his notice that payment had not been made by Datta Mege but by Nagpur Shahr Indira Congress Committee. He went on to state that the original receipt Ex. 406- . A was signed by Kulkarni. Explaining the difference in scoring. of certain words in the carbon copy Ex.406-A and its original Ex.406-A, the witness stated that he had scratched the original name and substituted it with the name of Shahr Congress committee. He, however, could not state as to who did the scori~g in the original receipt Ex.406-A, because the same had not been done by him. When his attention was drawn to a number of other receipts and their carbon copies and particularly the entries thereon, with F a view to point out the difference between the entries in the originals and the copies, the .witness stated that since receipts had been issued by different persons like Kulkarni, Prabhakar and others, he could not explain the reason as to why the c:orrections had been made but asserted that the corrections had not been made only in the case of the receipts concerning Respondent No.1 but such corrections had been made also in respect of G the receipts issued in favour of some other candidates and all such correc- tions were made in routine. The witness then categorically admitted.

"We do not have any personal account of the respondent No. 1 Datta Meghe in the account books. Except for the 'Datta Meghe H

230 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A Election Advertisement Account' there is no other account in Datta Meghe's name. The receipt Ex.406 was fully written by Kulkarni when it came to me, and it bore the two bill numbers, and that was also the case with original Ex.406-A. I did not check up in whose names the two bills mentioned therein, stood. They had been checked by the Advertisement Department." B PW8 Pannalal Poddar was working as an Assistatn in the advertise- ment department of Nav Bharat Times at the relevant time. He deposed that a subsidiary ledger was being maintained in the advertisement depart- ment and that the bills which were prepared by the advertisement depart- C ment were entered in the said ledger against the accounts of the concerned parties and that he used to maintain that register. He stated that at page 496 of the ledger, there exists ail account in the name of "Datta Meghe Election Advertisement Account" and that the said account had been written up to page 498 under the same title. He stated that out of the D writing "Datta Meghe Election Advertising Account" Nagpur, the words "Datta Meghe, Nagpur" were in his handwriting but the remaining words "Election Advertisement Account" were not in his handwriting and he could not even identify the author of the words "Election Advertisement Account" in the above entry. He stated that entry regarding bill No. 9101007 of May, 1991 for Rs. 10,000 stood originally in the name of Datta E Metghe but that name was scored out later on but he could not say as to who had scored out the name and susbstituted the same by "Nagpur Congress". That the scoring in the entries had been done in Bill Nos. 9101007, 9101343, 9101439 and 9101940 also by substituting the name of Datta Meghe with Nagpur Congress and Nagpur Shahr Zila Congress- I. F He, however, did not know as to who had made the corrections or even the time when the same had been made or the reason why they had been · made. During his cross-examination, he admitted that there were neither any erasers nor corrections in the subsidiary register in regard to the ·four bills (above noted) and that the entries in that register had been made within 5 to 7 days of the issuing of the receipts. The witness specifically G admitted that it "is not possible to say by referring to the account whether payment was received in this account through any other organisation except the Congress Committees."

Respondent No. 1 appearing as RlWl deposed that Parshionikar H had been entrusted with the work of isssuing advertisements on behalf of

G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.) 2'.U

the Congress Committee. That Parshionikar was a man of his confidence. A He deneid that he had himself entrusted any job of publication of the advertisements in the newspapers to Parshionikar. He went on to add that he had not asked Nav Bharat Times to open a separate account for his election advertisements and denied any knowledge whether Nav Bharat Times had opened any account as "Datta Meghe Account". he denied the B suggestion that Account No. M-0042 had been opened by him initially in the name of "Datta Meghe Account" but was lateron converted, at his instance, to the name of "Datta Meghe Election Advertisements Account" to escape the rigours of law. He went on to assert that he had not given any advertisement to Nav Bharat Times nor had he paid any amount to the said paper. C

Dr. Ghatate, learned counsel appearing for the appellants argued that since there was an account in the name of Datta Meghe, being Account No. M-0042, and admittedly the District Congress Committee had no account with Nav Bharat Times, the inference was obvious that the assertion of the returned candidate that neither he had issued any adve-r- tisements in Nav Bharat Times nor did he make any payment for the same or even agreed to reimburse the expenses incurred for the publication of the advertisements in the said paper was not correct. He submitted that the interpolations made in the copy of the receipt Ex. 406 and its original Ex. 406-A was a tell tale example of the tampering of the record by Nav E Bharat Times with a view to help Respondent No. 1 to conceal the incurring of expenditure by him and that an adverse inference should be drawn that all the scoring etc. must have been done in various bills and receipt etc. by the employees of Nav Bharat Times only with a view to favour Respondent No. 1. In support of the argument, learned counsel p - pointed out that receipt Ex. 406 dated 17.5.1991 was initially issued in the name of Datta Meghe and ·subsequently in the origin~ receipt Ex.4o6A, where the name of the party had. been initially len blank. the name of Congress Committee was written even though in the carbon copy, the name of the party continued to be shown as Datta Meghe which was also later on interpolated and substituted to read "Datta meghe Election Advertise- G ment Account". Learned counsel submitted that from the fact that the original receipt Ex. 406A, was produced during the cross-examination of the witness. by the counsel for Respondent No. 1 the only explanation for the original receipt Ex. 406-A being found in possession of Respondent No. ,1, could be that he had made the payment and kept the receipt, as H

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A otherwise there was no occasion for the original receipt to be found with the counsel for the returned candidate.

Thus, wherever it was found that the involvement of Datta ·Meghe could be proved, his name was scored of and replaced by congress Com- B mittee etc. by Nav Bharat Times. According to Dr. Ghatate, even if Datta Meghe himself had not placed any order for issuance of any of the advertisements or directly made payment for the ·same to the newspaper, it was out of the funds provided by him. that the payments \ had . been made and therefore the returned candidate would be deemed to have incurred the said expenditure. Though the argumen"ts of Dr. Ghatate appear' on the. C first blush to be attractive but they do not bear cio!)e scrutiny. Had receipt Ex. 406-A, which is the original of receipt Ex. 406 been with Respondent No. 1, containing a blank entry which was later on filled up as District Congress Committee showing it as the party making· the payment, t~ere was no reason why the same entry could not appear In the carbon copy Ex. D 406, if the employees from Nav Bharat Times were out to oblige Respon- dent No. l. The explanation given by the witnesses from Nav Bharat Times regarding the appearance of different names in the original and the carbo11 copy, cannot be said to be wholly unacceptable, particularly in view of the attendant circumstances. The possibility that interpolation was made in the copy of the receipt Ex. 406, to create evidence against the . returned candidate also cannot be ruled out particularly in view of the· association of respondent No. 2 with the management of Nav Bharat Time&. If the original Ex.406A contained the· name of Congress Committee and the entry in the carbon copy had been left blank, it could have been filled· up by adding the name of Datta Meghe. That apart,. the receipts Ex. 406-A and its carbon copy Ex. 406 relate to· payments made in respect of two bills based on two_distinct release orders. Neither the co.rrec~ness of tlie _release orders, ·admittedly not issued by Datta Meghe, nor the authenticity of the . relevant bills, which bills. again hacJ not been drawn 'in the nam.e of the returned candidate, has. been doubted by the appellants. Therefore, inuch capital c.annot be made out of the difference of the entries in the original and the carbon copy of receipts Ex.406-A and Ex.4061 when it is not disputed that Ex. 406 was actually issued in the· name of Nagpur Shahr Indira Congress Committee. It is also pertinent .to notice. here t~at· the appellants have led no eivdence whatsoever to show that any order for advertisement had been. placed by Respondent No. 1 himself ·or by his election agent with Nav Bharat Times in respect of either of the two release

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 233

,, orders or bills. Not a single bill, out of the massive record produced by the appellants, is in the name of the returned candidate. There is not a single receipt of payment issued in the name of the returned candidate either. The witnesses appearing on behalf of the petitioners have categorically asserted with reference to the record that 110 amount had been paid by Respondent No. I for any of the advertisements published by them in their newspapers. The learned Trial judge has elaborately considered various documents to which his attention was drawn and the arguments raised on the basis of the so-called interpolations ·etc. _on sqme.pf the docull}.ents and concluded that there had been some en;ors in th~ mentioning of Code numbers in some receipts etc. but rightly found that the first responde.nt could not be held responsible for any of those interpolations. No evidence direct or circumstantial has been led by the petitioners to support the charges levelled against the returned candidate to the effect that the returned candidate had provided funds to the party and it was his money which was paid through the hands of the party. The allegation has remained absolutely unsubstantiated: As a matter of fact, the evidence, led by the election petitioners instead of supporting their case, has to a large extent, demolished the same in as much as none of the witnesses have contradicted the assertion of the returned candidate that he incurred no expense, other than that which he had disclosed in the return of his election expense. The Trial Court therefore, rightly held that the expenses in respect of all the advertisements (subject matter of the issues) which were published in Nav E Bharat Times could ,not be said to have been incurred or authorised by the first respondent. We find that the conclusion arrived at by the Trial Court is based on correch,and proper appreciation of the evidence and learned . counsel for ·the appellants h~s been. unable to point out any flaw or error in the reasonipg of'th~ learned Single Judge of the High Court. We, F accordingly uphold the finding of the High· Court. ·

We shall now consider the allegations regarding the expenditure . allegedly incqrred in connection with the advertisements which ,appeared in different issues of Nagpur Times and Nagpur Patrika for the election of the returned candidate. It is not disputed that none of th!!. advertisements G were issued by the returned candidate himself nor .any bill was drawn against him nor any payment was received from· him. These advertisements appeared under different names. For example, the advertisements, Ex.84/13 and 84/15 appeared in the name of a ,;Well Wisher". The bill for those advertisements, Ex. 474, was drawn by the Nagpur Times/Nagpur H

234 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Patrika combined in the name of "Nitin Furnitures" and the receipt of payment, Ex. 475 was also drawn in the name of "Nitin Furnitures", Nagpur. Similalry, two advertisements dated 8.6.1991 published in Nagpur times being Ex. 84/14 and 85/15, were published by "Punjab Woodcrafts". The bills in respect of the same were drawn in the name of 'Punjab Woodcrafts' for Rs.15,000 and the receipt, Ex. 477 dated 14.9.1991, also shows the name of M/s. Punjab Woodcrafts as the party who had made the) payment. The advertisement issued in the Nagpur Times, Ex. 84/15-and in Nagpur Patrika, Ex. 85/16 were again published by a "Well Wisher,...Jand the bill Ex. 478 dated 30th June, 1991 for the' said advertisement was issued in the name of "Ranjit Engineering Works" and the receipt, Ex. 479, for the same was also issued in the name of Ranjit Engineering Works (by mentioning its Code no. ICR-0436). Again, for the advertisements published in Nagpur Times and Nagpur Patrika dated 10.6.1991, by a "Well Wisher", the bill was prepared in the name of "Talmale Bandhu" on 30~· June 1991 and the receipt in respect of the said bill dated 14.9.1991 was also issued in favour of "Talmale Bandhu".

The appellants examined Shri Mahendra Bangarde PW40 who was working as the Finance Manager with Nagpur Times since 1983. He stated that Ms. Neelima used to work as the Data Operator. She, however, was not examined by the appellant. He proved various entries in the ledgers, bills and receipts concerning publication of advertisements in the Nagpur Times. He did not state that any of those advertisements had been pub- lished either by Respondent No. 1 or by his election agent or that any payment in respect thereof had been made by Respondent No. 1 or his election agent nor even that respondent No. 1 or his election agent had taken the responsibility for making the payment for the concerned adver- F tisements.

Santosh Sarode PW9 was working as the Manager General (Coor- dination) with the Nagpur Times at the relevant time and deposed that he knew about the advertisements which were published in the Nagpur Times G and Nagpur Patrika during the last Lok Sabha elections. He deposed that various advertisements which had appeared in the Nagpur Ti.mes in sup- port of the election of the returned candidate had been published at the instance of Shri Parshoinkar, who had taken the responsibility for settling the bills in respect of those advertisements. He went on to say that it was at the asking of Shri Parshoinkar that bill Ex. 474 for Rs. 15,000 dated

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 235

30.6.1991 was drawn in the name of 'Nitin Furnitures'. The payment for the said bill was received on 14.9.1991 from Nitin Furnitures. He admitted that the Punjab Woodcrafts had an account with the Newspaper and that it was their representative who had requested them for the publication of an advertise.ment for which also Shri Parshioinkar had taken the responsibility for making payment and that later on Shri Parshoinkar had brought the amount and paid the same on behalf of Punjab Woodcrafts. The witness stated that according to his knowledge, Shri Parshioinkar was an office bearer of the Congress Committee and admitted that payments for some other bills also were made by Shri Parshoinkar on behalf of various parties as well as on behalf of the Congress Committee. Referring to the correc- tions made in the Code numbers appearing in certain bills, the witness c stated that he had no knowledge as to who had made those corrections or • overwritings and when the same were made but categorically asserted that all the payments had been made only by Shri Parshoinkar. The witness admitted that there was an account styled as "Datta Meghe Election Advertisement Account" with his newspaper and that the Nagpur Shahar D District Congress Committee also had a separate account with his paper. Explaining the corrections made in respect of receipts No. 779, 825, 1026, 1356 which had been first shown credited in the account of "Datta Meghe Election Advertisement Account", the witness stated that it was the Nagpur Shahar District Congress Committee, who had asked the newspaper to E publish the advertisements and h~d also undettaken the responsibility to make the payment for the same and since the said Congress Committee had also an account with them directly, they had transferred the "amounts" from "Datta Meghe Election Advertisement Account" to the account of Nagpur Shahar District Congress Committee, as the advertisements had F 11cfually emanated from the Congress Committee and payments had also been made by the Congress Committee. The witness explained that initially in their records all the amounts which were being received from Nagpur Shahar District Congress Committee as well as from Nagar Grarnin Com- mittee were being credited in the Account of 'Datta Megha Election Advertisement Account' but lateron the same were corrected to accord G with the actualities and credited in the appropriate Account of the party responsible for the advertisement and payments. The witness stated that since Shri Parshoinkar had brought the payments for the advertisements from the Nagpur Shahar District Congress Committee, Nagpur Gramin Congress Committee, Nitin Furnitures, Punjab Woodcrafts, Ranjit En- H

236 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A gineering Works and Talmale Bandhu there has been· some confusion - about the mentioJ!,ing of the Code Numbers in various receipts. during his, cross-examination, the witness categorically asserted that no payments were made by Datta Meghe for the advertisements which were released by·, Prasad Publicity nor had Datta Meghe taken the responsibility for making'" B payments in respect of those advertisements. Thus, we find that according to the witnesses examined by the petitioners, neither Datta Meghe had issued any advertisement for publication nor had he made any payments in respect of the advertisements issued at the instance of different parties in the newspapers.

C Respondent No. 1 during the course of his examination asserted : ... "I had not asked any of the news papers to open an account in my name in respect of the advertisements, during the election periods. Neither did I ask my election agent or any one else to open such D an account on· my behalf. I have no account in my name as Datta Meghe with any of the news papers, because I ·never asked such account to b~ opened. I learnt yesterday that an account had been opened in my name by Janvad, only yesterday. I do not know whether that. ac~ount h~d been opened during the election period. E Itis not true that.I had qpened personal accounts in my nam:e With · ~jY Bharat, .Nagpur Tiµi.es .and Nagpur i>atrika .in relation to the . advertisemeI).tS during the election. It is not true that I had asked the entries which stci~d iii my ..name, to be transferred in the name of the Congress"Committees. It is tfot true that I supplied the funds · for· publishing these advertisements to tlie Congress Committees, F or the .institutions o.r individuals who made the pa~ents." ~- . . . The assertion of the. returneP, candidate finds suppqrt from the witnesses produced by the petitioners concerning the advertisements pub- lished in Nagpur Times an:d Nagput Patrika. G The argument raised by Dr. Ghatate in respect of the advertisements published in Nagpur Times and Nagpur Patrika was only a repetition of the arguments raised on behalf of the election petitioners in the Trial Court. The learned Single Judge, after examining minutely various bills, receipts, advertisements and entries in the ledgers etc. as also analysing the

G.K BAP AT v. D.R. MEGHE [DR. ANAND, J.] 237

oral evidence, crune to the conclusion that the election petitioners had failed to establish the charge levelled against Respondent No. 1 to the effect that he was responsible for the publication of any of the advertise- ments or that he had incurred or authorised any expenditure himself or through his election agent or even that the funds allegedly provided by him had been utilised to discharge the liabilities. The High Court found that the returned candidate could not be connected with any of the interpola- tions or tampering with the record of the newspaper either and observed:

"The question, however, is whatever may be the reasons for the manipulation, can the liability for manipulation be fastened on the first respondent. Merely because there was a change in the names c in the bills and there was every good reason for the name of the first respondent, if it had appeared in the original document being suppressed and there was a Datta Meghe Advertising Account 0056 in the book of Nav Samaj Ltd., it cannot be said that the first respondent's name had appeared in the original bill and that, that was removed and new names were substituted. The matter can11ot rest merely on sunnises. 17te persons, who had adually accepted the adve1tisements, were not examined. Though Sarode's version, when it comes to be against the interest of the respondent No. 2, would have to be considered with more care a11d caution for disbelieving the version that the first responde11t was 11ot co11cemed with the advertisements some positive evidence was necessary. 011 the other hand, the positive evidence is that the first respo11dent had not given these adveltisements a11d had not accepted the responsibility for these adveltisements. None from Ta/male Ba11dhu, Punjab Wood Craft, Ranjit E11gineeri11g Works and Niti11 Furniture was called as a wit11ess F to show that they had not given the advenisements. If such evidence were led, then an inference could have legitimately been raised that since they had not given these advertisements, they must have been given by the first respondent, because he would be the person who would be really interested in advancing his own cause. Since, G in the elections, several perso11s, on their own, may come forward for givi11g the adve1tiseme11ts, without a11y apparent motive, in the cir- cumsta11ces, though there is no reason to doubt the evidence that the names i11 the bills and the receipts issued by Nav Samaj Ltd had been changed in order to conceal the real advertiser. I find that tltat H

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

A evidence by itself is not sufficient to clothe the first respondent with the responsibility of giving the advertisement."

(Emphasis added)

We find ourselves in complete agreement with the above opinion of • B the High Court. Relevant witnesses were not examined by the election petitioners for reasons best known to them. The appellants have offerred no explanation, much less a satisfactory one, as to why those witnesses who were relevant and were likely to shed some light were withheld. The evidence led by the appellants is not only insufficient but also confusing, C contradictory and often destructive of the case set up by the petitioners. We are hesitant, in the face of the evidence on the record, to take a view different than the High Court. On the basis of the above discussion, Issue 5(b)(vi) & (vii), except to the extent we shall refer to certain items lateron, are held not to have been established by the election petitioners and the same are decided against them. D Issue No. 6 (a), (b) & (c)

In para 2.23 A of the amended election petition, the case projected by the election petitioners was that the return~d candidate, respondent No. 1, had got released various advertisements through Yugdharma Consult- E ants and Commercial Services for publication in the newspaper 'Tarun Bharat'. A Statement, Annexure 18-A, indicating the bills in respect of the advertisements allegedly released by respondent No. 1 in the said newspaper was filed and it was alleged that an amount of Rs. 2090.00 had been received by Tarun Bharat towards the advertisement expenses. It was F pleaded that though some of the bills had been: drawn in the name of respondent No. 1 himself and he had been shown to have settled those bills by making payments thereof, some of the other bills were fictitiously shown under the names of certain dummy organisations or individuals, though the payment in respect of each one of those items of advertisements was also made by respondent No. 1 himself and/or by his election agent, Shri G Sudhakar Deshmukh, during the period 25.4.1991 to 16.6.1991 and all that expense was suppressed from the return of election expenses. In Para 2.23/B of the amended petition, it was pleaded that the advertisement - details.. whereof were contained in Annexures 18-B and 18-C, had also been released for publication by respondent No. 1 himself and/or by his election H agent or by the individuals/organisations and others under the authority of

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 239

Respondent No. 1 and or his election agent, to the daily newspaper A Hitvada, through Orange City Advertising, Nagpur and Prasad Publicity, Nagpur respectively and an amount of Rs. 40,000 and 23,520 had been paid to Hitvada towards the charges of those advertisements through Orange City Advertising and Prasad Publicity respectively. That even though the bills for the amount were drawn in the name of certain organisations, and individuals actually the payments in respect of each one of the bills, had been made by Respondent No. 1 himself and/or his election agent, Shri Sudhakar Deshmukh, but the returned candidate had failed to include the said expenditure in the return of his election expenses.

In paragraph 2.23 C of the amended election petition, by reference to the statement contained in Annexure 18-D, detailing the advertisements released through Prasad Publicity to Tarun Bharat, it was pleaded that those advertisements had been issued by respondent No. 1 for publication in Tarun Bharat and an amount of Rs. 71,440 had been paid to Tarun Bharat towards the publication of said advertisements and even though D. some of the bills were drawn in the name of Respondent No. 1 himself and he made the payments thereof, the other bills had been fictitiously drawn in the name of certain organisations or individuals, though in fact the payment in respect of the same were made either by Respondent No. 1 himself or by his election agent Shri Sudhakar Deshmukh and that an expenditure of Rs. 71,440 in that behalf was not included by him in the return of election expenses.

The returned candidate in his written statement, while admitting the publication oi some of the advertisements in Tarun Bharat, the expenditure whereof he had shown in the return of election expenses, denied that he had made the payments of Rs. 2090.00 to Tarun Bharat as alleged in paragraph 2.23 A (Annexure 18 A) or had even asked them to publish the concerned advertisement. He aslo denied that he had authorised or in- curred an expenditure to the tune of Rs. 40,000.00 and 23,520.00 as alleged in para 2.23 B of the amended election petition in respect of the items detailed in Annexure 18 B and 18 C. In reply to para 2.23 C, the returned candidate denied to have incurred any expenditure himself or though his election agent or with his consent through any other organisation, associa- tion or individual for the advertisements, as itemised in Annexure 18-D, to the election petition. He asserted that no expenditure with regard to the publication of the alleged advertisements had been incurred or authorised H

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

A by him and he categorically denied to have suppressed any amount from • the return of his election expense.

We shall first take up for consideration Issue No. 6(c) which con- cerns the publication of seven advertisements, which according to the election petitioners were issued by the election agent of Respondent No. B 1, Shri Sudhakar Deshmukh and published on 18.6.1991 in Lok Mat, Lok Mat Samachar, Hitavad Nagpur Times, Nagpur Patrika, Nav Bharat and Tarun Bharat. The said advertisements were "thanks giving" advertise- ments. The total expenditure incurred in respect of the same as alleged in the amended election petition was Rs. 39,500. Some of the advertisements c were alleged to have been directly released to the newspapers by the election agent of Respondent No. 1 while others were alleged to have been released·through Prasad Publicity.

According to Mr. Monohar, the learned senior counsel for the D returned candidate the expenses involved in the publication of all these advertisements, even if accepted as true and assumed for the sake of argument to have been incurred or authorised by the election agent of Respondent No. 1, were not required to be included in the election expenses, as the said advertisements had been published after the declara- tion of the result and were not published during the crucial dates men- E tioned in Section 77 of the Act. According to Dr. Ghatate, on the other hand, since the advertisements had appeared in various newspapers on 18.6.1991, it would be reasonable to presume that the advertisements had been issued prior to mid-night between 17th June, 1991 and 18th June, 1991 and therefore the expenditure involved in the publication of these adver- F tisements would be deemed to be an expenditure incurred in connection with the election and was required to be included in the return of election expenditure.

As already noticed, Section 77(1) of the Act mandates that a separate and correct account of all the expenditure in connection with the election, incwred or authorised by the retumed candidate or by his election agent between the dates on which he had been nominated and the date of declara- tion of the results thereof, both dates inclusive, shall be maintained. The High Court, after a detailed discussion of the submissions made by learned counsel for the parties, which have been reiterated before us also, came to the conclusion that all the seven advertisemts for which the total expendi-

G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.) 241

ture of Rs. 39,500 was alleged to have been incurred or authorised by the election agent of the returned candidate were "thanks giving" advertise- ments and were published after the declaration of result and therefore they did not fall within the prohibitory limits of the time schedule prescribed in Sub-Section (1) of Section 77 of the Act and were as such not required to be taken into account while computing the expenses incurred by the first respondent.

We are in agreement with the view of the High Court that the advertisements in question could not be said to have been issued in connection with the election, even if that expression is to be given a wide amplitude. What is it that the Legislature intended to achieve by prescrib- C ing the inner and the outer limits in Section 77 of the Act ? Obviously, it was the elimination of money influence during the elections and maintain- ing of purity of elections. The expenditure incurred after the declaration of the result of the election can possibly have no nexus with the purity of the electoral process. The very fact that the advertisements thanked the elec- D torate for electing Datta Meghe would show that the same could only have been issued for publication after the declaration of Datta Meghe as the returned candidate. The expenditure incurred in that connection therefore cannot be said to be an expenditure 'authorised' or 'incurred' during the prohibited dates. Indeed, there may be cases where some expenditure can be incurred or authorised by a returned candidate in connection with his election, even after the declaration of the result, but unless that expenditure can be related to the process of election, authorised or incurred during the prohibitory limits set out in Section 77(1) of the Act, it is not required to be included in the return of expenses. The mere fact that the advertise- ments appeared in the newspapers on the very next day cannot lead to any presumption that the expenditure in connection therewith had been in- curred or authorised by the returned candidate during the prescribed prohibitory dates in anticipation of his being declared elected. We, agree a.nd uphold the finding of the High Court that there was no nexus between the amount spent on thanks giving advertisements with the election after the declaration of the result of election and decide issue No. 6(c) against the election petitioners.

Issue No. 6(a) arises out of the allegations made in Para 2.13 of the election petition and the items contained in Annexures 17 and 18 to the H

242 SUPREME COURT REPORTS (1995) SUPP. 2 $.C.R.

A petition. It deals with the advertisements allegedly issued by Respondent No. 1 through M/s. Yug<lharma Consultants and Commercial Services, Nagpur (for short 'YCCS') to publicise his candidature. A chart containing 27 items of expenditure incurred in respect of various advertisements published on different dates in different newspapers in connection with the election of the first respondent were relied upon to urge that the adver- B tisements had been released through two advertising agencies namely Ypgdharma Consultants & Commercial Services (YCCS) and Prasad Publicity. According to the election petitioners Respondent No. 1 incurred an expenditure of Rs. 2,74,224 on the advertisements released through YCCS but the said expenditure has been suppressed by the returned c candidate and if included in the return of election expense, would show that the returned candidate had committed the corrupt practice as en- visage~ by Section 123(b) of the Act.

That some of the advertisements had been published in various D newspapers and had been released through YCCS or Prasad Publicity has not been disputed by learned counsel for Respondent No. 1 before us. His argument, however, is that neither Respondent No. 1 had authorised the publication of those advertisements through YCCS oi Prasad Publicity nor had Respondent No. 1 or his election agent authorised or incurred the alleged expenditure of Rs. 2,74,224 in respect of those advertisements. The E main thrust of the argument of Dr. Ghatate, appearing for the appellants, on the other hand was that in the release orders which had been issued by YCCS the name of "Datta Meghe" had been shown as the client and, therefore, it was futile to urge that respondent No. 1 or .his election agent had not incurred or authorised the expenditure in connection with those advertisements. Reliance was placed on the advertisements which ap- peared in the issues of Lok Mat and Lok Mat Samachar dated 1.5.1991, 2.5.91, 3.5.91, 5.5.91, 6.5.91 and 21.5.91, being Ex. 83/2 to 83/6, 83/34, 83/35 and 83/91 to argue the expenditure in respect of the same had been incurred or authorised by respondent No. 1. We, however, find that the bills in respect of each of the aforesaid advertisements were admittedly issued in the names of persons, other than the first respondent. Those had been issued in the names of Sushila Bai Jadav; Nagpur Nagar Congress Committee; Yuvak Congress Committee and Supersteel Furniture etc. . Even in respect of the advertisements which appeared in the issues of Yugdharma dated 1.5.91, 3.5.91, 8.5.91 and 11.5.91, the bills had admittedly been issued in the names of Nagpur Nagar Zila Congress Committee. The

G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 243

election petitioners sought to connect Respondent No. 1 with the adver- A tisements issued through YCCS by pointing out that the name of Shri Datta Meghe had been shown as the client in those bills and, therefore, he alone must be presumed to have discharged the liability arising out of those bills either directly or by placing his funds in the hands of the parties in whose names the bills had been drawn. Reliance has been placed on the statement B of Shri Madhukar Kishti, PW 55 by learned counsel for the appellants in support of his submissions.

Shri Madhukar Kishti, PW 55 was at the relevant time the Manabring Director of Yugdharma Cooperative Society, the parent company, which publishes the daily Yugdharma run by Yugdharma Industrial Cooperative c society. Yugdharma Workers Newspapers Pvt. Ltd. used to run the daily Yugdharma prior to it being taken over by the YCCS. It was Yugdharma Workers Pvt. Ltd. who had constituted YCCS in March 1990 as the sister concern for routing advertisements to different newspapers. PW55 deposed that he used to do whatever work was required to be done by the YCCS. D He went on to state that YCCS released advertisements for publication for Datta Meghe's candidature for the Parliamentary Elections of 1991 lo various newspapers and asserted that those advertisements were received by them from Yuvak Congress Committee etc. Explaining as to how the name of Datta Meghe had appeared in certain release orders against the name of the client even though Datta Meghe had not released any of the advertisements, the witness stated that since the space had to be booked in relation to the election of Datta Meghe in various newspapers, the witness had, on his own mentioned the name of Datta Meghe against the name of the client for the sake of convenience, though Datta Mcghe had not entrusted any advertisement to YCCS for publication. The witness added that he had not received any orders personally on behalf of YCCS from any of the clients of YCCS and that the orders used to be received by Shri Thakre Shri Prakash Deshpande. In his cross-examination, the witness, however, conceded that the name of Datta Meghe had been mentioned in certain release orders only because the name of the client had not been disclosed by the party and the sapce was required to be booked in the newspapers in advance owing to the rush of advertisements. Since, the advertisements were required to be published in connection with the election of Datta Meghe, he had shown his name against the name of the client on his own accord. PW55, further, admitted that neither any bill nor any receipt had been issued by the YCCS in the name of Datta Meghe. H

244 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Thus, we find that PW55 does not advance the case of the election petitioners at all in so far as the allegations concerning issue No. 6(a) are concerned. Besides, this witness had no personal knowledge of the nature of the transactions on the basis of which the release orders came to be issued. The election petitioners had summoned various release orders and other record from this witness to connect the name of Datta Maghe but B curiously enough they were neither exhibited nor got proved. The other witnesses, who could throw some light on the nature of the transaction, like Shri Thakre and Shri Prakash Deshpande, though summoned, were not examined on this aspect for reasons best known to them. The submission of learned counsel for the appellants that the explanation given by PW55 c regarding the reason for the name of Datta Meghe appearing in some of the release orders is not satisfactory cannot help the appellants because there is no other evidence or explanation offered by the election petitioner. Even otherwise the explanation appears to be quite plausible. It was for ,/ the election petitioners to adduce better and cogent evidence, direct or circumstantial, to show that the returned candidate had incurred or D authorised either himself or through his election agent the expenditure in respect of the advertisements issued by YCCS, as alleged in the petition, but no such evidence was produced and the allegation has remained unsubstantiated.

E Shri Prakash Despande, PWll, the Deputy General Manager of Hitvada did prove the signatures of PW55 on release order Ex. 586 dated 7.5.1991 but was silent about any transaction between YCCS and the first respondent. Same position exists in respect of other advertisements also. We need not, therefore, detain ourselves to refer to all other advertise- F ments, their release orders, bills or receipts because from the evidence of PW55 it stands established that no payment for any of the advertisements issued by YCCS came from the returned candidate, Respondent No. 1 deposed that the advertisements had been issued by different parties, associations and individuals and those parties had made the necessary payments. The petitioners have led no evidence to show that the advertise- G ments which were issued under t]Je names of different parties, organisa- tions and individuals like Nagpur Nagar Congress Committee, Indira · Brigade, Youth Congress, Pharitiva Sher Sangathana, Vidharbha Profes- sors Club etc. were in fact not issued by those parties, organisations, institutions or individuals, by examining any witness from such bodies and, therefore, the argument that the advertisements, though shown to have

G.K. BAP AT v. D.R. MEG HE [DR. At'l'AND, J.] 245

been issued by different parties and organisations etc., were in fact issued at the instance of the first respondent or that it was his money which they had paid to discharge the liabilities in respect of these advertisements, has

- no basis let alone any foundation. The election petitioners have totally failed to bring any material on the record to connect Respondent No. 1 either with the publication of or expenditure incurred in respect of the various advertisements as alleged in the petition. Even though the names of the parties, organisations, associations, institutions and individuals etc. had been mentioned in the advertisements as the sponsors of the adver- tisements, the election petitioners did not examine any one of them to elicit from them that they had not issued or caused to be issued those advertise- ments or that they had not incurred any expense in connection therewith. c We are not impressed with the submission of the learned counsel for the petitioners that since identical advertisements came to be issued simul- taneously in different newspapers on the same date or on different dates, an inference should be raised that it was done only at the instance of the first respondent, because he alone was the beneficiary irrespective of different names of sponsors. The argument has neither logic nor any basis. The election petitioners led no evidence to even create a doubt about the identity of the sponsors and merely because identical advertisements ap- peared on the same date, it is not possible to hold that the sponsors were fictitious persons or that the actual sponsor was the returned candidate himself. It is not unknown that during the elections, many sympathisers as well as 'others' come forward to support the candidature of a particular candidate and sponsor and pay for the advertisements which they get published to further the prospects of that candidate's election. Moreover, apart from the returned candidate, the party which sponsors him as its candidate is equally interested in the furtherance of the prospects of his election and may approach different organisations, associations or in- dividuals to sponsor and publish the advertisements at their expense in favour of the candidate and even to suggest to them that the same could be done by availing of the services of YCCS which was engaged in the propaganda cannot be ruled out. The burden of proving the issue was heavy on the election petitioners but they have miserably failed to discharge the burden. No evidence, direct or circumstantial has been led even to show that it was the money of the returned candidate which had been used by the party, other associations, institutions or persons, for the publication of the advertisements in various newspapers. The evidence on the record H

246 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A does not lead to any inference that it was the first respondent's money which was used for publication of advertisements and in the absence of such an evidence, no responsibility can be fastened on the first respondent in respect of the expenditure incurred in connection with those advertise- ments. The learned trial Judge after a detailed discussion of various exhibits and taking into consideration the law on the subject concluded that:

"Datta Meghe's ~onnection with the advertisements released by c YCCS has not been established, and there is no other evidence to show that Datta Meghe either incurred or authorised the expenses for the advertisements released through YCCS, and all the adver- tisements, which have been issued through the agency of YCCs will have to be left out, while considering the expenses incurred or authorised by the first respondent Datta Meghe." D We are in complete agreement with the above conclusions and nothing has been pointed out before us to persuade us to take a different view. Issue No. 6(a) is, therefore, decided against the election petitioners.

E ISSUE NO. 6(b) According to the allegations contained in para 2.23-A of the amended election petition, the returned candidate had, besides releasing advertisements through YCCS in various newspapers also utilised the services of Orange City Advertising, Nagpur and Prasad Publicity, Nagpur F for publication of advertisements in connection with the furtherance of his elections in various newspapers. The details of the advertisements allegedly released by the returned candidate to the newspaper daily Hitvada through Orange City Advertising, Nagpur and Prasad Publicity Nagpur were pro·.· · ed in Annexure 18B and attached to the election petition. The total amount alleged to have been spent by the returned candidate in that G behalf was stated to be Rs. 40,000 and Rs. 23,520. In para 2.23-B the election petitioners averred that although, it appears from the statements at Annex. 18B and 18C that the bills were issued in the name of certain organisations, the payments in respect of each one of the bills had in fact been made by respondent No. 1 himself and/or his election agent, Shri H Sudhakar Deshmukh during the period from 25.4.91 to 16.6.91. It was

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 247

alleged that the orders for each of the ite,ms of advenisements appearing in A the statements at Anex. JBB and 18C were also placed by respondem No. 1 himself and/or by his election agent Shri Sudhakar Deshmukh or by the organisations and individuals as indicated in the statements at the instance and under the authority of respondent No. 1 or his election agent. Besides the election petitioners alleged in para 2.23-C that some more advertise- B ments had been released by respondent No. 1 during 25.4.91 to 16.6.91 through Prasad Publicity in Tanm Bharat and an expenditure of Rs. 71440 had been incurred therefore which was also not disclosed by the returned candidate in the return of his expense.

In the written statement, respondent No. 1 categorically denied that the advertisements detailed in Annexures 18B and 18C had been published or issued by him and asserted that no expenditure in that behalf had been incurred or authorised by him or by his election agent. It was denied that he had authorised and/or incurred an expenditure of Rs. 40,000 and Rs. 23,520 as itemised in Annexure 18B and 18C. Similarly, it was asserted by the returned candidate that he had not placed orders for any of the advertisements detailed in Annexure 18D either himself or through his election agent nor had he authorised any of the organisations or individuals mentioned in Annexure 18D to get published the advertisements. It was maintained that no expenditure whatsoever with regard to the advertise- ments itemised in Annexure 18D were incurred or authorised by the returned candidate or by his election agent and therefore there was no question of disclosing the same in the return of election expenses. With regard to the advertisements allegedly released through Orange City Ad- vertising, the learned trial Judge has noticed :

'With regard to Issue No. 6(b), the learned counsel for the petitioners stated that he would not be in a position to urge that the expenditure on the advertisements introduced by Orange City Advertising should be included in the expenditure incurred by the first respoJtdent. I have already found that no other item of expen- diture incurred through Prasad Publicity, except what has been included in issue no. 5(b)(vi) & (vii) can be included, and issue G No. 6(b) is answered accordingly."

Learned counsel for the appellants has not disputed the above finding before us and as such we have no reason to take a view different than the one taken by the High Court. H

248 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A We have dealt with in the earlier part of the judgment, the allegations relating to the expenditure incurred by the returned candidate through Prasad Publicity, while dealing with issues 5(b)(vi) and (vii). We shall now advert to the findings with regard to certain amounts which have been found to have been suppressed by the returned candidate from the return of election expenses. B The election petitioners relied upon the testimony of Shri Anant Shastri. PW50, who used to carry on the work of advertising agency in the name of Prasad Publicity. The witness deposed that he knew respondent No. 1 and that he had received advertisements for publication in the c newspapers from several institutions with which respondent No.1 was connected. Those institutions included Radhika Bai Meghe Memorial Trust; Nagar Yuvak Shikshan Sanstha; Polytechnic; Engineering College; Dental College; Pharmacy and medical College, being run by those institu- tions. That he had been releasing the advertisements on behalf of those institutions since 1984. He went on to add that payments had been received for the publication of the advertisements from various organisations as also from Nagpur Shahr Zila Congress Committee and entered in a ledger which, however, had been destroyed by him in the last week of March 1992. He stated that the account ledger had been destroyed by him before he had received the summons to appear in the court as a witness in the election petition. According to PW50 he did not himself write the account books and that the same were written by his accountant Shri Dhale. After referring to the counter foil book, PW50 deposed that ledger folio No. 226 pertained to the account of Yashwantrao Chauhan Social Forum and that counterfoil No. 003363 from the same counterfoil book also bore ledger folio No. 226 and was issued in the name of Datta Meghe Mitra Mandal. The word "staff' which had been written below "Datta Meghe Mitra Man- dal" in the copy had, however, been scored out later on. The witness went on to say that counter foil No. 003364 also bore ledger folio No. 226 and and was issued in the name of Nagpur Zila Congress Committee. Counter- 'I G foil No. 003365 which also bore ledger folio No. 226 was issued in the name of Narayan Ahuja while counterfoil No. 003366 with the same ledger folio No. was issued in the name of Rajiv Sena. The witness explained as to how the same ledger folio No. (226) appeared against various counterfoils and stated that various organisations which had come forward to support the candidature of Datta Meghe and were releasing advertisements in his H favour had been clubbed together under one and the same ledger folio No.

G.K BAP AT v. D.R. MEGHE [DR. ANAND, J.) 249

226. He denied the suggestion that the account against ledger folio No. 226 A was of Datta Meghe and not of the organisations clubbed together.

The High Court after considering the evidence of Anant Shastri PW50 in great details opined that the witness was enjoying the patronage of the returned candidate and of various institutions with which the returned candidate was connected and that the witness had destroyed the B ledger, a material documents, "probably because those documents, if retained, would not have been favourable to the first respondent". The High Court did not accept the explanation offered by Anant Shastri PW50 regarding the time and reason for the destruction of the ledger. The High Court repelled the agrument of learned counsel for the returned candidate c that the release order of Prasad Publicity Ex.225 relating to advertisement Ex. 88/1 was suspicious because the date 28.4.91 did not appear on the carbon copy Ex.712, which had been produced by Anant Shastri PW50 presumably because the High Court felt that the witness was favouring the returned candidate. Similarly, the High Court did not accept tp.e criticism D made by learned counsel for the respondent in respect of release order No. 5031 dated 28.4.91 in which the name of Datta Meghe had appeared in the carbon copy, as the client, though there was no mention of the date 28.4.91 on it. The High Court noticed that though below the name of Datta Meghe, the word "Karyalaya" had been initially mentioned in Ex. 711, the manner in which that word had been written would show that the word "Karyalaya" E might not have been written on 28.4.91 but on some other date. According to Shri Anant Shastri PW50 the advertisement dated 28.4.91 had been given to him by Shri Vasant Parshionikar on behalf of Nagpur Nagar Zila Congress and it was for publication of the programmes arranged by Nagpur Nagar Zila Congress Committee. That he had given identical advertise- F ments to four newspapers including Nagpur Patrika and Lokmat. Accord- ing to the witness, the word "Karyalaya" had been omitted from Ex. 325 inadvertently as he forgot to mention it. The witness, however, stated that Datta Meghe was not his client for the said advertisement and the words 'Datta Meghe" were used on as a caption and the actual bill was issued in the name of the real client, Nagpur Nagar Zila Congress Comittee. G

According to Shri Padmakar Paunikar PW3, bill Ex. 156 was issued to the party on 29.4.91 itself. It was signed by Bhojraj PW12 and the receipt Ex. 157 was also signed by Bhojraj PW 12 and the receipt Ex. 157 was also signed by Bhojraj PW12. He admitted that both the bills Ex.156 and Ex. H

250 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A 227 were prepared on two different type-writers and both bore the signa- tures of PW12. He conceded that the three bills dated 29.4.91 were issued on three different formats. Ex. 156 was issued on the format of Nar kesari Prakashan and disclosed Datta Meghe as the client and that udvertisement had been released by Prasad Publicity; Ex. 227 was on the format of Tarun Bharat and showed Yashwantrao Chauhan Forum as the party concerned; B and Ex. 603 was again on the format of Tarun Bharat and showed Datta Meghe as the name of the client. According to PW12, the name of Yashwantrao Chauhan Forum was shown as client in Ex. 227 because they had asked for the bill in the name of Yashwantrao Forum when bill Ex. 227 was issued. The witness admitted that all the three bills were identical. C The High Court dealt with this issue relating to the advertisement Ex. 88/1 which had appeared in Tarun Bharat for a sum of Rs. 1320 and observed:

"If one were to go only by the different formats on which the bills were issued and different names which appeared on the bills, it would appear that there was a good deal of confusion and on the basis of the bills themselves, no inference could be raised as to who was the real client. If regard is to be had to the fact that the original release orders mentioned the name of Datta Meghe as client, there was no reason for Tarun Bharat to depart from normal practice of issuing the bills in the name of Prasad Publicity by showing Datta Meghe as the client, and that seems to have been done with the bill (Ex. 156) issued purportedly on 29.4.91 on the format of Narkeshri Prakashan. By that time, the forms of Narkesari Prakashan were being used. It would be only when a bill with a different name would be required that the change in the name would appear, and the only person, who was interested in having a bill in the name different from the one used in the release order, would be Prasad Publicity which was represented by Anant Shastri. To the extent that Datta Meghe's name appeared in the original release -order, there is no demur even by Anant Shastri who was a party to the transaction. If his version that the name of G Datta Meghe was mentioned merely as a caption was true, there · was no difficulty for him to allow the name of Datta Meghe to continue in the original bills which were issued. Coupled with the position that all the original documents issued by Tarun Bharat are said to have been handed over by Anant Shastri to a person about whose identity he was not clear, it is difficult to accept the

G.K. BAP AT v. D.R. MEG HE [DR. ANAND, J.) 251

position that the name of Datta Meghe in the release orders issued to Tarun Bharat appeared merely .as a caption."

The High Court then opined :

"In view of the above factum, there can be no doubt, though there was a deliberate attempt to disguise the transaction, that the amount of Rs. 1320 under the bill Ex. 156 for the advertisement published in Tarun Bharat dated 21.4.91 (Ex. 88/1) on the basis of which the release order (Ex. 225), was paid by the first respondent under receipt Ex. 157, on 29.4.91."

After hearing learned counsel for the returned candidate at length c and going through the record, in our opinion the finding recorded by the High Court is quite sound. The explanation for appearance of the name of Datta Meghe in the release orders does not appeal to common sense. Anant Shastri did not handover the documents to a 'stranger' whose identity he could not recollect and admittedly he did not handover the D same to Shri Parshoinikar. Thus, in the facts and circumstances on the record, the High Court was right in concluding that the expense for bill No. 156 in respect of advertisement Ex. 88/1 had been authorised or incurred by the returned candidate. Even the challenge to the said finding by learned counsel for the returned candidate before us was only half- E hearted. We thus agree with the finding of the High Court and hold that the returned candidate did incur an expenditure of Rs. 1320 for Bill Ex. 156 in respect of the advertisement published in Tarun Bharat Ex. 88/1 but failed to include the same in the return of his election expenses. The High Court rightly included that amount to the amount disclosed in the return of election expenditure.

Coming now to the advertisement which appeared in the Election Special Issue of Tarun Bharat dated 21.5.91 and for which an expenditure of Rs. 7000 was alleged to have been incurred by the returned candidate, we find that the plea with regard to this advertisement was not raised by the appellants in the original election petition and was not even included in the first amended election petition but was introduced for the first time by an amendment dated 18.12.91. In the verification to the election petition, the contents· of the relevant paragraphs were verified as 'partly based on personal knowledge and partly on information received from ........ Tarun H

252 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Bharat ....... '. In the affidavit filed in support of the allegations of corrupt practice, again the contents of para 2.23 were verified as based partly on personal knowledge and partly on information received froni the official record of Tarun Bharat. The election petitioner, however, did not in his deposition disclose the basis of his 'personal knowlege' for making the B allegation. In the pleadings a wide latitude was left by the election petitioners to lead evidence on any of the various 'possibilities' detailed in the election petition. The 'vagueness' of the pleadings even after amend- ment shows that the election petitioners were out on a wild goose chase and trying to fish for evidence so as to be able to fasten some liability on the returned candidate or his election agent at least in some case. PW39 c Laxman Trimbakrao Joshi, the Chief Editor of Tanm Bharat was, examined by the election petitioners in support of the allegations made in the petition regarding publication of the advertisement in Election Special Issue of Tarun Bharat. He deposed that Tarun Bharat had decided to issue an Election Special Issue after the elections were announced and that he had personally contacted Datta Meghe about 8 to 10 days before the publica- tion of the issue on telephone and had a talk with Datta Meghe personally and had requested him for the issuance of an advertisement, as he was a contesting candidate. Datta Meghe, according to the witness, had told him that he would think about the matter and admittedly, thereafter, did not get in touch with him. The witness went on to state that an advertisement in support of respondent No.1 was published in Tarun Bharat dated 21.5.91. It had been received through Prasad Advertising Agency (Prasad Publicity) who had also supplied the material for publication. The witness, however, did not know whether the bill for the advertisement had been prepared in the name of Prasad Publicity or someone else nor did he know nor as to who had paid the bill. He did not even know as to who had instructed Prasad Publicity to give the advertisement or who made the payment for the same to the Prasad Publicity. This advertisement Ex. 221 is the subject matter of three bills Ex. 192 bearing No. 4167 (shown as Duplicate); Ex. 234 No. 4178 and Ex. 605, No. 4167 (written after scoring out 4178). All G the bills are dated 21.5.91. Where as in Ex. 192, which was on the format of Narkeshari Prakashan the bill was addressed to Prasad Publicity, show- ing Datta Meghe's name as the party releasing the advertisement, Ex. 234 was on the format of Tarun Bharat and again addressed to Prasad Publicity but showing NSUI as the client while Ex. 605 was issued on the format of H Tarun Bharat and was. addressed to Prasad Publicity and showed Datta

G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.) 253

Meghe as the client. The High Court after considering the evidence of A PW3, Paunikar (who had deposed that Prasad Publicity had not placed the order); PW39 Laxman Joshi, (who had deposed that the advertisement was received from Prasad Publicity and that the bill had been settled by Prnsad Publicity); PW50 Anant Shastri and PW12 Bhojraj, held that the advertise- ment had been issued by respondent No. 1 and that Anant Shastri PW50 B had manipulated the bills and the record to help the returned candidate.

We have carefully perused paragraphs 154 to 157 of the judgment of the learned trial Judge dealing with the question of the expenditure of Rs. 7000 in connection with the advertisement Ex. 221 in the Election Special Issue and the evidence on record. Keeping in view the difference in the C three bills relating to the same advertisement and the use of these different formats by Tarun Bharat, we find it difficult to agree with the High Court that the election petitioners have established that respondent No. 1 had incurred the expenditure of Rs. 7000 in respect of publication of Ex. 221. The findings appear to be rather laboured ones and if Tarun Bharat D advertising office was not "very careful about giving the particulars to the bills which they issued and that the bills were not issued from bound books" as observed by the High Court, no adverse inference could be drawn against the returned candidate. Indeed neither Shri Paunikar PW3 nor Bhojraj PW12 had any talk with Datta Meghe in respect of any of the advertisement and from the testimony of PW39 Laxman Joshi, it is not possible to hold that pursuant to the talk he had with the returned can- didate, the advertisement in question had been published by the returned candidate himself and not by or on behalf of NSUI in whose favour the bill had been drawn. As already noticed neither in the verification of the petition nor in the affidavit, PW39 had been disclosed as the source of information. The appellants have not explained the basis for making the said allegations. The findings of the High Court in our opinion are based :+ on surmises and conjectures and we agree with Mr. Manohar, learned senior counsel for the returned candidate that in the face of the vague pleadings and inconclusive evidence led by the election petitioner coupled with the discrepent evidence of PW39, who admittedly was not shown as the source of information for the said allegation, it is not possible to hold that the advertisement in question, Ex. 221, had been released by and paid for by Datta Meghe himself. It is also relevant in this connection to note that no release order had been got produced by the election petitioners in respect of this advertisement which could disclose who the real client was. H

254 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A We, are therefore, of the opinion that the material on the record was not sufficient to fasten the liability for the publication of the advertisement in the Election Special Issue of Tarun Bharat Ex. 221 for Rs. 7000 on the returned candidate. We, accordingly, set aside the finding of the Bigh Court and hold that Rs. 7000 was not spent by the returned candidate for the publication of Ex. 221. B The High Court also found that an amount of Rs. 9900 in respect of Ex. 258 had been suppressed by the returned candidate from the return of his election expenses. The receipt Ex. 258 shows that an amount of Rs. 9900 was paid on 20.5.91 by Sharad Pawar Mitra Manda/ for. the publ,ica- c tions of the advertisement. A consolidated bill had been issued in the name of Sharad Pawar Mitra Manda/ as the publisher. According to PW4, Ashok Jain, the advertisements which appeared in Lokmat and Lokmat Samachar Ex. 83/18 and 83/19 dated 12.5.91 against bill No. 257 had been given for publication by Narayan Ahuja and Sharad Pawar Mitra Manda/. The wit- D ness admitted that in the bill, the name of Narayan Ahuja was not men- tioned and that the payment for the bill had been made by Sharad Pawar Mitra Manda/. From a careful consideration of the observations of the High Court in paras 183 to 187, the pleadings and the evidence in that behalf, we find that recourse has been taken by the learned trial Judge to surmises (f i' and conjectures to hold that the expenditure had in fact been incurred by \'

E respondent No. 1 in respect of the said advertisement. There is not even an iota of evidence on the record to show that the first respondent had incurred the expenditure of Rs. 9100 as alleged by the election petitioners in their evidence, though not specifically pleaded in their election petition both original and amended. The election petitioners had learnt about the F role being played by Narayan Ahuja even before they filed the election petition. It was for them to have examined Narayar Ahuja to elicit from him as to whose funds he was utilising for making payments for publication of various advertisements. The petitioners chose not to examine him for reasons best known to them. We do not think that there was any obligation on the part of the returned ca~didate to have examined Narayan Ahuja G and lead negative evidence to the effect that no funds had been provided to him by the returned candidate and that the payments had been made by the parties who were responsible for the pblication of various advertise- ments through him. The observations of the High Court that Narayan Ahuja was a person "who had no financial or political background for representing organisations", is clearly based on conjectures because the ·

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.j 255

evidence on the record does show that Narayan Ahuja had been working for the political parties and without there being any pleading or evidence on the record, it was to say the least rather unfair for the High Court to conclude that Narayan Ahuja had "neither any financial status nor any political background". We do not find it possible to agree with the High Court that the returned candidate had suppressed the amount of Rs. 9100 B in respect of Ex. 221 (receipt Ex. 258) and accordingly set aside the said finding of the High Court, which is not based on any satisfactory material on the record.

The finding of the High Court in respect of some of the items as detailed in Annexures 8 to 15, involving an expenditure of Rs. 22900, in our opinion are equally fallacious and conjectural. The same are not based even on correct appreciation of evidence. Recourse has been taken to surmises and imagination to return these findings. We find it difficult to subscribe to the view of the learned trial Judge which is not supported by any material on the record. The positive evidence led by the election petitioners is that the returned candidate had not himself or through his election agent given any of the advertisements for publication and had not accepted any responsibility for making payment in respect of any of those advertisement, even though the advertisement were issued for the fur- therance of his election prospects. There is no direct or circumstantial evidence led by the election petitioners to show that the amount paid iri the name of Sharad Pawar Mitra Mandal had been placed at the disposal of the said Mandal by the returned candidate or his election agent. There is no .evidence even to suggest that respondent No.1 had undertaken the responsibility of making the payments in connection with the expenses incurred by Sharad Pawar Mitra Mandal. The election petitioners, for reasons best known to them, chose not to examine any \tj.tness from Talmale Bandhu, Punjab Woodcraft, Ranjit Engineering Works, Nitin Furniture, Sharad Pawan Mitra Mandal, D.M.M. Mandal and various other organisations under whose names either the advertisements had been published or who had according to the evidence made payments for thos~ G advertisements as per the bills and receipts on the record. If any evidence was led to the effect that none of the persons, parties or organisations had in fact issued the advertisements or they or anyone of them had denied the making of any payment, it may have been possible to argue that those advertisements may have been got published by the first respondent himself H

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

A or through his election agent or through some other persons. with his consent or with the consent of his election agent and in that event the onus may have shifted to the returned candidate to explain the source of the expenditure and in the absence of any satisfactory explanation it may have been possible to draw an infe~ence that it was the money of the returned B candidate. Since no such evidence was led no proof was submitted in support of the alleged charge, the question of shifting of onus on the returned candidate to prove his non-liability did not arise. The High Court, therefore, was not justified in saddling the returned candidate with any expenses other than Rs. 1320 in addition to the expenses disclosed by him - in the return of his election expense. c Thus, on the settled principles extracted in an earlier part of this judgment, we find that the election petitioners have miserably failed to discharge the onus of proving various charges levelled by them against the returned candidate regarding the commission of corrupt practice under D Section 123(6) of the Act. The High Court was, justified in holding that the returned candidate had not committed any corrupt practice as en- visaged by Sec;tion 123(6) of the Act and in dismissing the election petition. However, the High Court fell in error in holding that certain items of expenditure tOtalling Rs. 58,2220 had been suppressed by the returned candidate and deserved to be included in the return of his election expense. E Except to the extent of Rs. 1320, no other liability can be fastened on the returned candidate in respect of the other items.of the alleged expenditure on publication of advertisements etc. The election appeal consequently fails and is dismissed with costs. The cross- objections to the extent indicated above succeed and are allowed. The costs are assessed at Rs. F 10000.

Before parting with the judgment we would, however, like to express our disapproval of the maimer in which amendments of the election· petition were allowed on occasions more than once and how evidence was allowed to be brought on the record against the pleadings and settled legal principles.

Section 86(5) of the Act deals with the amendment of an Election Petition. It lays down that the High Cqurt may upon such terms as to costs or otherwise, as it deems fit, allow amendment in respect of particulars but there is a complete prohibition against any amendment being allowed

G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 257

which may have the effect of introducting either material facts not already pleaded or of introducing particulars of a corrupt practice not previously alleged in the petition. The first part of Section 86(5) of the Act, therefore, is an enabling provision while the second part creates a positive bar. Of course, the power of amendment given in the Code of Civil Procedure can be invoked by the High Court because Section 86 of the Act itself makes the procedure applicable, as nearly as may be, to the trial of election petition, but it must not be ignored that some of the Rules framed under the Act itself over-ride certain provisions of the Civil Procedure Code and thus, the general power of amendment drawn from the code. of Civil Procedure must be construed in. the light of the provisions of the election law and applied with such restraints as are inherent in an election petiton. C It appears to us that the High Court did not properly consider the provisions of the election law while repeatedly allowing amendments of the election petition in the present case. The High Court allowed an applica- tion Ex. 27 filed by the election petitioner for permission to amend the petition on 28.11.91. Yet another application for amendment of the election D petition, Ex.44 was again allowed by the High Court on 18.12.91. The petitioner filed still another application, Ex.47A, to again amend the elec- tion petition and the High Court allowed the same on 18.1.92. Even after the pleadings were completed and the issues framed on 21st of January 1992 and a part of evidence had been led by the parties, the High Court E allowed one more application filed by the election petitioner No.1, Ex. 701, and permitted an amendment of the election petition, apparently to bring the evidence in conformity with the pleadings. In the first place, the High Court ought not to have allowed evidence. to be led by the election petitioners which was beyond the pleadings of the parties for no amount of evidence can cure a defect in the pleadings but it was all the more improper for the trial court to have allowed the pleadings to be amended so as to be brought in conformity with the evidence already led in the case. To say the least, it was not a desirable or a proper course to be adopted in an election petition where, as pointed out by this Court in Jagannath v. Jaswant Singh, [1954] SCR 892, the statutory requirements of the law of election must be strictly observed. Of course, since evidence was allowed to be led, though beyond the pleadings without any objections from the opposite side, the court could have evaluated and analysed the same to determine the worth of that evidence, which in the facts and circumstances of the case came under a cloud but to allow the amendment of the H

258 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A pleadings with a view to confer a 'legal status' on the evidence already led was to say the least improper. The reasons given by the learned trial judge to allow the election petition to be amended repeatedly ignores the saactity which is attached to the pleadings and the affidavit filed in support of an election petition, which under law is required to be filed within a prescribed time and those reasons do not impress us. We need say no more B on this aspect of the case.

B.K.M. Ap'peal dismissed.