Dalchand Jain vs Narayan Shankar Trivedi and Another

R.S. BACHAWAT, J.-This appeal is directed against a judgment of a single Judge of the Madhya Pradesh High court setting aside the election of the appellant to the Madhya Pradesh Legislative Assembly from the Sagar City constituency.

At the last general election to the Legislative Assembly from the Sagar City Constituency there were six contesting candidates. The appellant, the Congress candidate, secured 17,068 votes, respondent No. 1, the P.S.P. candidate secured 12,193 votes, four other candidates secured much lesser number of votes. The appellant was declared elected. Respondent No. 1 filed an election petition and alleged a number of corrupt practices on the part of the appellant. The High court found that the corrupt practice under Section 123(4) was proved and set aside the election. The High court found that the other charges were not proved.

The charges against the appellant under Section 123(4) is that with his consent statements of facts which were false and which the appellant did not believe to be true in relation to the personal character or conduct of respondent No. 2 calculated to prejudice the prospects of his election were published in Hindi in the issues of New Rocket Times, dated the 6th, 9th, 10th, 13th, 18th and 19/02/1967 (Exs. P-6, P-5, P-4, P-3, P-2, and P-l respectively) and the issues of Agami Kal, dated the 4th, 19th and 20th February (Exs. P-7, P-9 and P-IO respectively). The learned Judge held that the publications were made with the appellant''s consent and that the papers were distributed at his instance on the eve of the election. We are unable to agree with this finding.

In the petition the charge was that both the papers were financed by the appellant and that the editors of New Rocket Times and Agami Kal were his benamidars. In his examination-in-chief, respondent No. 1 said that Public Witness 43 Bakar Mia, told him that the entire expenses of the publication of the New Rocket Times were borne by the appellant. In cross-examination he said that he was informed by Public Witness 36 Ghanshyam Das, some time before the election that the appellant paid Rs. 1,000.00 to the editors of each of the papers for his advertisement. Public Witness 36 Ghanshyam Das, the editor of the paper "Denik Rahi" said that a press conference called by the appellant on 20/01/1967 at the residence of Sri Krishna Selot and attended by Public Witness 36, Public Witness 35 Madansingh, editor of Sagar Times, RW 23JaiNarain, editor of Agami Kal and CW 1, Badal Singh, editor of New Rocket Times, the appellant stated that RW 33 and CW I had agreed to publish in their papers all his advertisements as also all articles to be supplied by RW 34 LaxmiNarayan Trunkwala for the entire election at a settled remuneration of Rs. 1,000.00 each and that the appellant had also agreed to purchase 1,000.00 copies of each of the papers. The story appears to us to be false. If the bargains had already been made with RW 23 and GW 1 it was not necessary to call them at the conference. Nor was it necessary to make a public announcement of the bargain at a press conference. The charge that such an agreement was made with the editors of the two papers was not made in the petition and is an afterthought. Public Witness 36 also said that on January 20, the appellant agreed to pay him Rs. 1,000.00 for issuing advertisements in his paper as remu- neration and accordingly he published advertisements in his paper from January 24 to February 16, that a week after the agreement the appellant sent Rs. 300.00 to Sri Krishna Selot through RW 11 Sunder Lal and desired that the money be paid to him (Public Witness 36), but that he refused to accept the money, and insisted on full payment. We do not believe this story. Had there been such a dispute in the last week of January PW 34 would not have continued to publish the advertisements till February 16. Public Witness 36 did not make any demand on the appellant in writing for Rs. l,000.00 nor file any suit against him. RW II denied that he brought Rs. 300.00 from the appellant. Public Witness 35 did not support Public Witness 36 and did not speak of any admission made by the appellant at the press conference with regard to his alleged bargains with the New Rocket Times and the Agami Kal. Public Witness 43 Bakar Mia, the manager of Nisi Printing Press proved that RW 34 gave the manuscripts for the articles, but RW 34 denied that he wrote them at the appellant''s request. Public Witness 43 said that the appellant''s ser- vants took away all the copies of the papers in the appellant''s car. But RW 32 Narendranath Purohit, the owner of the Nisi Printing Press denied that the appellant''s car or jeep ever came to collect the copies. We do not be- lieve Public Witness 43. There is evidence to show that only 500 copies of Agami Kal used to be printed. This fact proved by RW 32 and CW 1 belies the story of Public Witness 36 that the editors of the two papers agreed to supply 1,000.00 copies to the appellant. The learned Judge held against the appellant mainly on the strength of the evidence of Ghanshyam Das. As we do not accept his testi- mony there is no direct evidence to show that the publications were made at the appellant''s instance.

The circumstantial evidence relied on by respondent No. 1 does not conclusively establish that the publications were with the appellant''s consent. The appellant read the papers but his omission to raise any ob- jection does not establish his consent. His photos and appeals were published in the New Rocket Times and Agami Kal; but they were also published in other papers. The financial position of the two papers were shaky, and their publication shot up during the elections ; but the editors of these mushroom papers might have hit upon the plan of making money by pub- lishing sensational articles on the eve of the election.

The evidence as to the distribution of the papers at the appellant''s instance is not convincing. Out of the 13 distributors named in the petition respondent No. 2 called only Public Witness 23, Public Witness 24, and Public Witness 30. They do nut identify the papers distributed by them. We do not accept the statement of Public Witness 24, and Public Witness 30 that they got Rs. 50.00 each as remuneration from the appellant. Public Witness 30 said that the appellant paid him Rs. 50.00 at the rate of Rs. 5.00 per day in the presence of his brother RW 25 Ratiram, but RW 25 denied that the appellant settled Public Witness 30''s remuneration in his presence. PW 6 said that the papers were distributed from the 4th or 5th of February, but actually the papers were published from the 9th February. Public Witness 20 said that he got from the appellant Rs. 100.00 as remuneration for distributing the papers and that he used to distribute the papers through RW 21 Babu Lal and another person, but RW 21 said that he did not know Public Witness 20 and that he never received any copy of the papers for distribution. We do not believe Public Witness 20. Public Witness 8 said that he got a copy of the New Rocket Times from RW 30 Panna Lal Patel, but this was denied byRW 30. Public Witness 29 and Public Witness 31 said that one Ram Charan used to distribute the papers but Ram Gharan was not examined. GW 1 and RW 23 denied that the papers were distributed free of cost. We do not accept the story that the papers used to be dis- tributed free of cost at the appellant''s instance.

It is not established that the issue of the New Rocket Times and the Agami Kal were distributed with the appellant''s consent. In view of this conclusion, it follows that the appellant was not guilty of any corrupt practice under Section 123(4). There is force in the appellant''s con- tention that the statements in the publications were not in relation to the personal character or conduct of respondent No. 1. But we do not find it necessary to express any opinion on this question.

The learned Judge held against respondent No. 2 on all the other charges. His counsel has pressed before us the charge under issues 7, 28, 31 (b) and 34. Issue No. 7 relates to payment of Rs. 200.00 as bribe to Public Witness 16 Bashir Mohammad, the secretary of the Gopalganj Trust Committee. He said that on February 19, the appellant gave him a donation of Rs. 200.00 in the presence of Public Witness 41 and that he spoke of this donation to PW 19. He was corroborated by PW41 and Public Witness 19. In support of his state- ment Public Witness 16 proved entries in his cash book. Ex. P. 79. Exhibit P. 79 shows a credit of Rs. 500.00 as donation from the appellant on February 19, and a debit entry of Rs. 200.00 through Hazi Ahmad for fencing of iron bars for Kabristan on the same day. There is force in the appellant''s contention that a convenient cross entry was made on the same date so that the cash balance carried forward in the books might not be disturbed. Public Witness 16 said that he sent the accounts for the year ending 31/03/1967 to the Waqf committee in the month of April 1967. But RW 26 Nazir Ahmed, the Se- cretary of the Madhya Pradesh Waqf Board said that no such account was received and none was to be found in his office. In agreement with the learned trial Judge we are unable to accept the testimony of PW 16 and the supporting witnesses.

Issue No. 28 relates to the charge that the appellant used the na- tional flag for furthering his election prospects by publishing a replica of the flag with his appeal in the New Rocket Times. RW 32, proved that he printed a replica of the flag in the paper at his own instance for doing propaganda work. There is no reliable evidence to show that he did so at the appellant''s instance. The learned Judge rightly repelled this charge.

Issue No. 31(6) relates to the publication of a statement of the withdrawal of the candidature of Public Witness 10 Manmohan Patel in the Sagar Mitra one day before the election in Ex. P- 69 by one Nanhuram Vyas. PW 10 said that Nanhuram Vyas was a paid servant of the appellant. Nanhuram was not examined by respondent No. 1. The petition did not allege that the appellant got the statement published through his agent Nanhuram. In agreement with the learned Judge we hold that it is not established that the statement was published at the appellant''s instance.

Issue No. 34 relates to the charge that the appellant incurred or authorised expenditure in contravention of Section 77. It is said that the appellant did not include several items of expenses in his return of elec- tion expenses. Item (i) relates to the purchase of congress flags worth Rs. 1,227. 05 P. We are concerned only with the expenses incurred or aut- horised in connection with the election after 13/01/1967 which war the date of publication of the notification calling the election. The cash memos for the period before 13/01/1967 are not relevant and may be left out of account. With regard to the cash memos Exs. P-120, P-121 and P-122, RW 7, RW 11 aud RW20 have given cogent and convincing explanation as to how they came to purchase the flags for other persons. Even if the explanation given by RW 39, with regard to Ex. P. 129 be rejected there is no reliable evidence that the expenses covered by the cash memos were incurred or authorised by the appellant. With regard to items (iii) and (iv) the learned Judge held that the appellant omitted to mention in his return Rs. 2,000.00 paid by him to the editors of New Rocket Times and Agami Kal. We are unable to agree with this finding. As already stated respondent No. 1 failed to prove that the appellant paid any money to the editors of the two papers. Item No. (xiii) relates to the item of 2,000.00 Gandhi caps and sunshades. This charge is not proved. The appellant said that he spent Rs. 225.00 only for the Gandhi caps and that this was shown in his return. RW 2 Balendra Sharma proved that he sent only 750 Gandhi caps at the cost of Rs. 225.00. He was not cross-examined. It is not established that the appellant obtained more than 750 caps. RW 15 proved that the sunshades were supplied by him for distribution free of cost. With regard to item (xv) the learned Judge held that the appellant paid Rs. 100.00 to Public Witness 20 and Rs. 50.00 each to Public Witness 24 and Public Witness 30. As already stated, we do not believe Public Witness 20, Public Witness 24 and Public Witness 30. We set aside the find- ing of the learned Judge that the appellant paid Rs. 200.00 to them. Item (xvii) relates to an expenditure of Rs. 4,000.00 in respect of portraits fitted on motor vehicles with an automatic device. The petition charged that two station-wagons were used in the election. But in his deposition respondent No. 1 spoke of only one station-wagon. PW6, Public Witness 8 Public Witness 11 and Public Witness 45 spoke of two station-wagons, but we do not believe them. RW 6 Kanchan Lal Dhruv proved that he sent the station-wagon from Indore free of charge. He is corroborated by the appellant and RW 13. The learned Judge rightly held that the charge under item (xvii) was not proved. Item (xviii) relates to an expenditure of Rs. 1,000.00 for constructing a platform for a meeting. The charge is not proved. There is convincing evidence to show that the expenses for the platform was met by the District Congress Com- mittee. The relevant receipt is Ex. P-142. Item (xxi) relates to the pay- ment of Rs. 1,400.00 as printing charges to the Patel Printing Press. The charge is not established. We accept the statement of RW 32 that the Nagar Congress Committee placed the order and paid for the printing. Item (xxii) relates to payment of Rs. 2,200.00 to Adarsh Press. Respondent No. 1 exa- mined Public Witness 37, Public Witness 38, Public Witness 21 and Public Witness 34 to prove the charge. Public Witness 37, the manager of the press tried to prove the bill Ex. P-89 and the work orders Exs. P-90, P-91 and P-92. But Public Witness 38, the printer, stated that entries in Ex. P-92 were false entries written by him at the instance of Public Witness 37. Public Witness 21 said that he personally got Rs. 2,850.00 for the bill from the appellant, but in the petition the charge was that the appellant spent only Rs. 2,200.00. The evidence of Public Witness 34 does not carry the matter any further. The entries in Exs. P-90, P.91 and P-92 are not reliable and cannot be acted upon. The charge under item no. (xxiii) is not proved. The learned Judge has ade- quately dealt with the charges with regard to items (vi), (vii), (xvi), (xx) and has rightly rejected them for cogent reasons. The charges with regard to the other item were not pressed.

The learned judge held that the appellant incurred an expense of Rs. 200.00 under item (u) and Rs. 230.00 under items (xix) and (xxiii) and that it was not included in the return of election expenses. We agree with the finding.

Counsel for respondent No. 1 contends that as the appellant did not keep correct account under Section 77(1) and as his return of election expenses is false in material particulars the appellant committed the corrupt practice under Section 123(6). We are unable to accept this contention.

Section 123 (6) lays down that "the incurring or authorizing of expenditure in contravention of Section 77" is a corrupt practice. Every con- travention of Section 77 does not fall within Section 123 (6). Section 77 consists of three parts. Section 77, Ss. (1) requires the candidate lo keep a separate and correct account of all election expenses incurred or authorised by him within certain dates. Section 77, Ss. (2) provides that the account shall contain such particulars as may be prescribed. Sec- tion 77, sub-section. (3) requires that the total of the said expenditure shall not exceed the prescribed amount. Section 123(6) is related to Sec- lion 73(3). If the candidate incurs or authorises expenditure in excess of the prescribed amount in contravention of Section 77(3) he commits corrupt practice under Section 123(6). The contravention of Section. 77, sub-sec- tions (1) and (2) or the failure to maintain correct accounts with the prescribed particulars does not fall within Section 123(6). See Sri Krishna v. Sal Narain