Magraj Patodia Vs. R. K. Birla &
Ors  INSC 184 (10 September 1970)
10/09/1970 HEGDE, K.S.
CITATION: 1971 AIR 1295 1971 SCR (2) 118
F 1971 SC1348 (13) R 1973 SC 157 (25) F 1973
SC 717 (14) R 1975 SC 308 (14,50) RF 1975 SC2299 (120,495) R 1979 SC 154 (36)
RF 1985 SC 89 (16) D 1985 SC1133 (16,21) R 1987 SC1748 (20)
Representation of the People Act, 1951, ss.
77, 123(b) and s. 119--Expenditure in excess of prescribed limit by candidate's
party or friends land others without his authority--If contravention of s.
77-If appellate court bound to grant costs to successful party.
Election petitions-When Supreme Court may
interfere with findings of fact-Burden of proof-When inference may be drawn in
absence of direct evidence.
The appellant challenged the first
respondent's election to the Lok Sabha in 1967 mainly on the ground that he had
committed the corrupt practice under Section 123(6) of the Representation of
the People Act, 1951, in that he had incurred or authorised the incurring of
expenditure in excess of the limit prescribed under Section 77. It was alleged,
interalia, that the first respondent was put up by one of the wealthiest
business houses in the country which owned or controlled a large number of
companies; during the election campaign vast material and human resources of
these companies were drawn upon by the respondent. It was alleged that as
against the limit of Rs. 25,000 prescribed for the constituency under s. 77,
several lakhs of rupees were spent by him during the election campaign on the
printing of posters, pamphlets, etc., entertainment, the use of about 200 jeeps
and cars, the engagement of over three thousand employees of the various
companies and for their maintenance and travelling expenses, and on campaign
meetings, trunk calls, etc. The appellant's election petition was dismissed by
the High Court, etc. 'I-he to this Court under Section 116A of the Act,
HELD : Dismissing the appeal : The appellant
had failed to establish that expenditure in excess of the prescribed limit was
incurred by the first respondent or with his consent and authority or that of
his election agents.
(i)It is not sufficient for the petitioner to
prove merely that the expenditure more than the prescribed limit had been
incurred in connection with the election. He must further prove that the excess
expenditure was incurred with the consent or under the authority of the
returned candidate or his election agent. The expenditure incurred by the
returned candidate's party or by his friends or supporters, or by the enemies
of his rival candidates without his consent or authority cannot be taken into
[127 B] Rananjaya Singh v. Baijnath Singh and
Ors.  1 S.C.R.
671; Ram Dayal v. Brijral Singh and Ors.
 1 S.C.R. 530 and Mubarak Mazdoor v. Lal Bahadur, 20 E.L.R. 176; referred
(ii)This Court will not ordinarily go behind
the finding of fact reached by the trial judge unless there is something
basically wrong in the conclusions reached by him or the procedure adopted by,
him. This is not a rule of law but a rule of prudence. [126 B] 119 Amar Nath v.
Lachinan Singh & Ors., Civil Appeal No. 717/68 decided on 23-8-1968 and
Jagdev Singh v. Pratap Singh, A.I.R. 1965 S.C. 183; referred to.
(iii)The burden of proving the commission of
a corrupt practice which is pleaded is on the petitioner and he has to
discharge that burden satisfactorily. In doing so he cannot depend on
preponderance of probabilities. The evidence must be cogent and conclusive. It
is true that many times corrupt practices at election may not be established by
direct evidence and the commission of those corrupt practices may have to be
inferred from the proved facts and circumstances but the circumstances proved
must reasonably establish that the alleged corrupt practice was committed by
the returned candidate or his election agent. [126 H] Dr. M. Chenna Reddy v. V.
Ramchandra Rao and Anr., Civil Appeal No. 1449/68 decided on 17-12-1968,
(iv)If the court comes to the conclusion that
an item of expenditure has been suppressed in the return of election expenses,
the mere fact that there is no sufficient evidence about the amount that must
have been spent is no ground for ignoring the matter. It is the duty of the
court to assess all expenses as best it can and though the court should not
enter into the region of speculation or merely try to guess the amount that
must have been spent, it would generally be possible to arrive at an amount of
expenditure on a conservative basis and where it is possible to arrive at any
such estimate, such estimated amount should be held as not shown by the
candidate in his election account. [128 H] Shivram Sawant Bhonsale v. Pratap
Rao Deorao Bhonsale, 17 E.L.R. 37. referred to.
(v)Although the trial court, under Section
119 of the Act is under compulsion to award cost to the successful party, there
is no provision in the Act which compels the appellate court to award costs in
an election appeal. [135 F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1094 of 1969.
Appeal under s. 116-A of the Representation
of the People Act, 1951 of the judgment and order dated February 17, 1969 of
the Rajasthan High Court in Election Petition No. 4 of 1967.
A. S. R. Chari, G. V. Pai, H. J. Thakkar,
Janendra Lal and B. R. Agarwala, for the appellant.
L.M. Singhvi, S. S. Khanduja, M. P. Khaitan
and P. Krishna Rao, for respondent No. 1.
A. S. Bobde and A. G. Ratnaparkhi, for
respondent No. 2.
The Judgment of the Court was delivered by
Hegde, J.-This appeal raises the question as to the validity of the election of
Mr. R. K. Birla to the Lok Sabha, in the General Election held in 1967, from
the Jhunjhunu constituency in the State of Rajasthan. The election for that
constituency was held 120 in the month of February 1967. The notification
calling upon the constituency to elect one member to the Lok Sabha was
published on January 13, 1967. The last date for filing the nomination was
January 20, 1967. Several persons filed their nominations but some out of them
Eleven persons including Mr. R. K. Birla
(respondent No. 1) and Mr. Morarka Radheshyam (Respondent No. 2) contested the
election. The polling took place on February 15, 18 and 20th. Counting
commenced on the 21st of that month and completed on the 23rd on which date
results were declared.
According to the declaration made by the
returning officer, respondent No. 1 secured 1,50,546 votes and respondent No.
2, 1,04,023. It is not necessary to refer to
the other candidates in the course of this judgment. Respondent No. 1 was
The appellant who is a voter in the Jhunjhunu
constituency and a supporter of Mr. Morarka challenged the election of the respondent
under s. 81 of the Representation of the People Act, 1951 (which will
hereinafter be referred to as the Act) on various grounds. His petition was
tried and dismissed by a single judge of the Rajasthan High Court.
Thereafter he has brought this appeal under
S. 11 6A of the Act.
The election of respondent No. 1 was
challenged on various grounds. It was alleged that he had committed corrupt
practices coming under S. 123(1) (bribery), 123(4) (false statements as regards
the personal character and conduct of respondent No. 2), 123(5) (hiring or
procuring vehicles for the free conveyance of electors) and 123(6) (incurring
or authorising the incurring of expenditure in contravention of s. 77). The
respondent denied the allegations made against him. At the trial of the case
most of the grounds alleged in support of the petition were not pressed. At
present we are only concerned with the allegation that respondent No. 1 had
incurred or authorised the expenditure in contravention of S. 77 in connection
with his election. Section 77 of the Act reads :
"Amount of election expenses and maximum
(1) Every candidate at an election shall,
either by himself or by his election agent, keep a separate and correct account
of all expenditure in connection with the election incurred or authorised by
him or by his election agent between the date of publication of the
notification calling the election and the date of declaration of the result
thereof, both dates inclusive.
(2) The account shall contain much
particulars as may be prescribed;
121 (3) The total of the said expenditure
shall not exceed such amount as may be prescribed." Section 123(6)
declares that incurring or authorising of expenditure in contravention of s. 77
is a corrupt practice.
The maximum amount of expenditure prescribed
for the Jhunjhunu constituency was Rs. 25,000/-. The return of, respondent No.
1 showed that his total expenditure in connection with the election was Rs.
16,380.96 P. It it is shown that the total expenditure incurred either by
respondent No. 1 or his election agent or by others with their consent or under
their authority exceeded Rs. 25,000/then the election of respondent No. 1 must
be held to be void.
In the election petition the petitioner
alleged that respondent No. 1 was an independent candidate; and that he was put
up by the House of Birlas, one of the wealthiest business houses in the country
who own and/or control and/or manage several companies. It was further alleged
therein that respondent No. 1 himself was a man of considerable means.
According to the petitioner during the course of election compaign many top
Executives of several companies owned or controlled by the House of Birlas were
brought by respondent No. 1 to the constituency and they lived there for over a
month and worked for respondent No. 1. Several leading members of the Birla
family including Mr. Ghanashyamdas Birla, Mr. Madhya Prasad Birla, Mr. K. K. Birla
and others stayed in the constituency and canvassed for respondent No. 1. He
further alleged that vast material and human resources of several companies of
the House of Birlas were drawn upon by the respondent No. 1 for his election
compaign. Besides the Chief Executive Officers, hundreds of other Executive
Officers and employees of several companies of the House of Birlas were also
brought by respondent No. 1 from several places to the constituency for
campaigning in his favour. The petitioner alleged that several lakhs of rupees
were spent by respondent No. 1 in connection with his election. Proceeding to
give particulars about the expenditure incurred he stated that the respondent
No. 1 got printed lakhs of posters, pamphlets, leaflet-, and cartoons and got
them distributed throughout the constituency and in that connection he spent
about 2 lakhs of rupees; he made a film of some meetings held and exhibited
that film in various parts of the constituency and in that connection spent
about Rs, 30,000/; he employed a singing party which was taken by a motor truck
from village to village for the purpose of reciting songs and performing
bhajans and for that purpose spent about Rs, 3 000/-; he used about 200 jeeps
and cars for his election campaign and in that connection incurred or
authorised an expenditure of Rs. 6,00,000/-; for some of these jeeps (which
were not hired) he incurred or authorised an expenditure of about 9--L 235 Sup
CI/71 122 Rs. 30,000/as drivers' salaries; he requisitioned the services of
about 3,000 employees of the Birla concerns and for their maintenance and
travelling expenses incurred more than Rs. 10 lakhs; he had 150 officers in the
constituency and for their maintenance spent about Rs. 75,000/-; he set up 80
messes at different places for feeding his canvassers as well as the electors
and for that purpose he spent about Rs. 2 lakhs; he organised nearly 225
meetings and for that purpose incurred an expenditure ,of Rs. 33,750/-; for
trunk calls in connection with the election, he spent about Rs. 5,000/-; for
the repairs of the jeeps used in connection with the election spent about Rs.
50,000/and lastly spent about Rs. 75,000 for hiring jeeps. Some of the items of
expenses mentioned above were not pressed at the hearing.
We shall not refer to them in the course of
We shall ,confine our attention to only those
heads of expenditure which were pressed for our acceptance.
Before we proceed to consider the merits of
the case, it is .necessary to Mention that in the memorandum of appeal, the
appellant had urged that in the High Court he was not given reasonable
opportunity to put forward his case. He complained that his applications for
examination of certain witnesses on commission were, improperly rejected; he
was not given sufficient opportunity to procure the attendance of the witnesses
and lastly several documents produced by him in support of his case were
improperly rejected. When the hearing of the appeal was taken up we suggested
to the learned Counsel for the appellant, Mr. A. S. R. Chari to first deal with
the plea that the appellant was not given reasonable opportunity to prove the
case pleaded by him.
After taking up that plea and arguing the
appeal for sometime Mr. Chari informed us that he would not press that part of
his case as he did not want the case to be either remanded or additional
evidence taken in view of the fact that the next General Election is not far
off. He informed us that he would argue the appeal on the basis of the evidence
on record. At this stage it may also be mentioned that no application had been
made in this Court for taking additional evidence. In view of the concession
made by Mr. Chari, we will confine our attention to the merits of the case on
the basis of the evidence on record.
Mr. Chari's case was that Mr. Morarka had
incurred the wrath of the members of the family of Mr. Ghanshamdas Birla due to
the fact that as Chairman of the Public Accounts Committee of the Parliament he
had dug up many skeletons from the cupboards of some of the Birla concerns. It
may be mentioned at this stage that Mr. Morarka was representing the Jhunjhunu
constituency in the Lok Sabha from 1962 to 1967 and earlier as well and for a
considerable time he was the Chairman of the 123 Public Accounts Committee. The
further case of Mr. Chari Was that because of the hostility of the members of
the Brila family towards Mr. Morarka, the members of that family sponsored the
candidature of respondent No. 1 who was one of their top Executives, he being
the Chairman of Shri Digvijay Woollen Mills Ltd., Jamnagar, a Birla concern and
the President of a Chemical Company at Porbundar which is also a Birla concern.
According to the appellant, respondent No. 1 was really an independent
candidate but in order to facilitate him to exercise his money power as well as
the money power of the Birla concerns, he posed as a Swatantra party candidate.
It was said that a great deal of money was spent by the members of the Birla
family and also by the companies under their control to further election
prospects of respondent No. 1. Mr. Chari further contended that respondent No.
1 in agreement with the several members of the Birla family and some of the top
officials of Birla concerns had devised a plan for spending money in connection
with the election and the entire expenditure was incurred in accordance with
At the very outset, we may mention that
respondent No. 1 is not a member of Mr. G. D. Birla's family though it is
established that he is one of their top Executives. It also appears from the
evidence that several members of the Birla family as well as other
industrialists were keenly interested in the success of respondent No. 1. It
may also be, as contended on behalf of the appellant that they were keen on
defeating Mr. Morarka. Even according to the appellant the members of Birla
family had both the means as well as the cause to spend for furthering the
election prospects of respondent No. 1. But the real question for our decision
is whether any expenditure in connection with his election was incurred by
respondent No. 1 or by his election agent or by others with his consent or
under his authority in excess of the amount shown in his return and if so what
that amount is ? The expenditure incurred by the Swatantra Party or other
friends or supporters of respondent No. 1 or by the enemies of Mr. Morarka
without the consent or authority of respondent No. 1 cannot be taken into
consideration as the law now stands.
In the election petition, the petitioner took
the, stand that respondent No. 1 was an independent candidate. it was not
suggested therein that he was only nominally a Swatantra candidate and that he
used the Swatantra party as a shield to cover the enormous expenditure that he
planned to incur during the election campaign. In fact in the election petition
there is no reference to the Swatantra Party. It is now established and it is
not denied that respondent No. 1 was a Swatantri party candidate. His symbol in
the election was the "Star", the symbol assigned to the Swatantra
party by the Election Commission. The plea of the petitioner that in truth and
reality, respondent No. 1 was an independent candidate cannot be accepted. The
charge that during the election expenditure was incurred by various persons in
accordance with a preplanned design devised by respondent No. 1 and others was
also not pleaded in the election petition. That ingenuous contention appears to
have also been put forward only with a view to make it appear that expenditure
incurred by the Swatantra party or by others in connection with respondent No.
1's election was all done with the consent or at any rate under the authority
of respondent No. 1. Some support for this contention was tried to be sought
from Ex. P.W.
14/5 and Ex. P.W. 42/6. PW 14/5 is a letter
from respondent No. 1 to Mr. M. P. Birla. It is dated 30-121966. In Ex. PW 14/5
(the genuineness of this letter is in dispute) respondent No. 1 is shown to
have written to Mr. M.
P. Birla as, follow:
" I have been informed that Morarka was
in Gudda constituency yesterday. He was touring with 4 jeeps. Dedisinghji and
Bhimsinghji have suggested that whenever I go to the constituency, I must also
go at least with four jeeps, if not more, to create an impression on the public
that I am in no way lacking in vehicles and publicity work against Morarka. SPK
also informs me that Morarka has given 5 jeeps to Sumitra, his candidate for
Jhunjhunu constituency. The same number of jeeps have been given to his Gudda
constituency candidate. He has also told that each candidate can hire further 3
jeeps for which Morarka will pay the cost. From this you will kindly find that
he is all out to win the election. It is also confirmed that in Nawalgard he has
given 5 jeeps to Mintre, who is his candidate. In view of the fact that he is
now using more number of vehicles than in the last election we shall also have
to fall in line with him, and, therefore all our friends like Debisinghji,
Bhimsinghji, Raghuvirsinghji and Madan Singhji etc. feel strongly that we must
also arrange to give at least 5 jeeps per constituency, if not more." In
reply to that, letter Mr. M. P. Birla is said to have written Ex. P-42/6. That
letter reads as follows "I am in receipt of your letter of 30th December
from Jaipur regarding, more requirements of jeeps. I have checked up With-CACO
and it is not possible for them to arrange any jeeps. Jitendra seems to have
given you wrong information. I am however negotiating with CACO to give a cash
donation for Rajasthan Swatantra Party and the cheque to be sent through you. I
will let you know about this within a week.
125 As regards your further requirement of
jeeps, you write that 10115 jeeps can be delivered immediately by the Rajasthan
agent of Mahindra. If this is so, then you please get these jeeps immediately
in the account of our various officers and the finance should be arranged as
per our decision in Pilani. Mr. Keshab Mahindra is out of Bombay and therefore
I have not been able to contact him, but in any case, as these jeeps are
available in Rajasthan for immediate use, I suppose there is no need for me to
talk to Mr. Keshab Mahindra.
Durgaprasadji is now reaching Pilani on the
8th or 9th and you please consult him also about our total requirement of
jeeps. I agree with you that we should not lag behind Radhesyam Murarka in our
efforts. I also understand that he is going to step up his election efforts.
Shri R. K. Birla,
Sri D. P. Mandelia, Bombay." While it is
true that these letters, if they are genuine, as they are held to be by the
trial court, do indicate that sometime in December respondent No. 1 was
contemplating to secure large number of jeeps to match the number of vehicles
used by respondent No. 2. But whether in fact he did so is a matter for proof.
But from this letter we are unable to spell out that there was any settled plan
for financing the election campaign. Our attention was not invited to any other
evidence to show that there was any settled plan for financing the election
campaign. Our taken in the petition.
It is no doubt true that it appears from the
record that seven jeeps were purchased by some persons who are said to be Birla
employees on the 18th and 19th of January, 1967 through one Brijlal Ram Gopal
of Jaipur. There is no evidence whatsoever to 'show that those jeeps were used
in connection with the election. Though the surrounding circumstances do
indicate that those jeeps might have been purchased through Birla employees for
election purpose, those circumstances do 'not take the case beyond suspicion.
In the absence of any proof as to their use
we cannot come to any conclusion on the basis of the purchase of those jeeps.
Before proceeding to examine the evidence
relating to the various items of expenditure said to have been incurred in
connection with' the election, it, is necessary to bear in mind the 126 various
principles evolved by this Court to be followed while hearing an election
Taking into consideration the fact that a
plea of corrupt practice is somewhat akin to a criminal charge and the further
fact that the election cases are tried by experienced judges of the High Court,
this Court ordinarily does not go behind the findings of fact reached by the
trial judge who had the benefit of seeing the witnesses examined before him
unless there is something basically wrong in the conclusions reached by him or
the procedure adopted by him.
This is not a rule of law but a rule of
prudence. In Amar Nath v. Lachman Singh & ors.(1) this Court observed :
"We have already observed in more than
one decision in the present series of election appeals that in the matter of
appreciation of evidence and forming of conclusions with respect thereto, our
normal approach would be to accept the findings of the trial judge and not to
upset the same unless it was shown to us that the trial judge had not
considered all the evidence in its proper perspective or that his inferences
were not supported by the data relied on. We propose to follow the said rule in
disposing of this appeal. We must also bear in mind that the charge of
commission of a corrupt practice has to be proved by cogent and reliable
evidence beyond any reasonable doubt and that such a charge cannot be
established by any consideration of preponderance of probabilities." While
making these observations the learned judges relied on the decision of this
Court in the case of Jagdev Singh v. Pratap, Singh(2) In the present appeal we
do not propose to go into the question whether the evidence adduced by a
petitioner in an election case should establish the case beyond any reasonable
doubt but suffice it to say that that evidence must be cogent and conclusive.
It is true that as observed in Dr. M. Chenna Reddy practice cannot be equated
to a criminal charge in all respects. While the accused in a criminal case can
refuse to plead and decline to adduce evidence on his behalf and yet ask the
prosecution to prove its case beyond reasonable doubt such is not the position
in an election petition. But the fact remains that burden of proving the
commission of the corrupt practice pleaded is on (1). Civil Appeal No. 717/68
decided on 23-8-1968. (2).
A.I.R.1956 S.C. 183., (3). Civil Appeal No.
1449/68 decided on 17-12-1968.
127 the petitioner and he has to discharge
that burden satisfactorily. In doing so he cannot depend on preponderance of
probabilities. Courts do not set at naught the verdict of the electorate except
on good grounds.
Now coming to the corrupt practice of
incurring expenditure beyond the prescribed limit, in several decisions this
Court has ruled that it is not sufficient for the petitioner to prove merely
that the expenditure more than the prescribed limit had been incurred in
connection with the election, he must go further and prove that the excess
expenditure was incurred with the consent or under the authority of the
returned candidate or his election agent. In Rananjaya Singh v. Baijnath Singh
and ors.(1) this Court had to consider a case where a proprietor of an estate lent
the services of his Manager, Assistant Manager, 20 Ziladars and their peons for
canvassing on behalf of his son. It was proved that the father was an old man
and the returned candidate was helping his father in the management of his
estate. The question in that case was whether because of the canvassing by
those persons the returned candidate had committed the corrupt practice of
engaging the services of more than the prescribed number of persons/and further
whether the salary and wages paid to them should have been included in
computing the expenses incurred by the returned candidate. In that case there
was no evidence to show that the services of those persons were either procured
by the returned candidate or his election agent nor was it proved that their
services were obtained with the consent or under the authority of the returned
candidate or his election agent.
This is what this Court observed in that
"There can be no doubt that in the eye
of the law these extra persons were in the employment of the father of the
appellant and paid by the father and they were neither employed nor paid by the
appellant. The case, therefore, does not fall within s. 123(7) at all and if
that be so it cannot come within section 124(4).
It obviously was a case where a father
assisted the son in the matter of the election. These persons were the
employees of the father and paid by him for working in the estate. At the
request of the father they assisted son in connection with the election which
strictly speaking they were not obliged to do. Was the position in law at all
different from the position that the father had given these employees a holiday
on full pay and they voluntarily rendered assistance to the appellant in
connection with his election. We think not. It is clear to us that qua the
appellant these persons were (1)  1 S.C.R. 671.
128 neither employed nor paid by him. So far
as the appellant was concerned they were mere volunteers and the learned
advocate for the respondent admits that employment of volunteers does not bring
the candidate within the mischief of the definition of corrupt practices as
given in section 123(7). The learned advocate, however, contended that such a
construction would be against the spirit of the election laws in that candidates
who have rich friends or relations would have an unfair advantage over a poor
rival. The spirit of the law may well be an elusive and unsafe guide and the
supposed spirit can certainly not be given effect to in opposition to the plain
language of the section of the Act and the rules made there under. If all that
can be said of these statutory provisions is that construed according, to the
ordinary, grammatical and natural meaning of their language, they work
injustice by placing the poorer candidates, at a disadvantage the appeal must
be to Parliament and not to this Court." The same view was reiterated in
Ram Dayal v. Brijraj Singh and ors.(1) Therein this Court ruled that unless it
is established that expenditure was incurred in connection with the election by
the candidate or his election agent or was authorised by them, it is not
necessary to be included under s. 77 of the Act. Expenses incurred by any other
agent or person without anything more need not be included in the account or
return as such incurring of expenditure would be purely voluntary.
In Mubarak Mazdoor v. Lal Bahadur(2 ) the
Allahabad High Court held that /the expenditure voluntarily incurred by the
friends and supporters of the returned candidate does not come within s. 123(3)
even though the returned candidate was aware of the fact at the time of the
election itself that his friends and sympathiers were incurring expenditure in
connection with his election. That is also the effect of the decision in
Rananjaya Singh's case(3). This Court as well as the High Courts have taken the
view that the expenses incurred by a political party to advance the prospects
of the candidates put up by it, without more do not fall within s. 77. That
position in law was not disputed before us. But it is true as observed by the
Bombay High Court in'Shivram Sawant Bhoonsale v. Pratap Rao Deorao Bhoonsale
(4) ; that if the court comes to the conclusion that an item of expenditure has
been suppressed in the return of election expenses, the mere fact that there is
no sufficient evidence about the amount that must have been spent is no ground
for (1) (1970) 1, S.C.R. 530.
(3) 1 S.C.R. 671.
(2)20 E.L.R. 176.
(4)17 E.L.R. 37.
129 ignoring the matter. It is the duty of
'the court to assess all expenses as best it can and though the court should
not enter into the region of speculation or merely try to guess the amount that
must have been spent,, it would generally be possible to arrive at an amount of
expenditure on a conservative basis and where it is possible to arrive at any
such estimate, such estimated amount should be held as not shown by the'
candidate in his election account.
A somewhat similar was the view taken by this
Court in Amar Nath's case(1).
We shall now proceed to examine the evidence
adduced in this case on the basis of the principles enunciated earlier. But
before going to the evidence relating to the expenditure said to have been
incurred by the 1st respondent in connection with his election, it is
'necessary to refer to a curious feature in this case. In the course of the
trial of the case two files (files A and B) containing numerous documents were
produced on behalf of the petitioner. One of those files viz. file 'A' was
produced by P.W. 14 Mr. Nathuramka and the other was produced by Mr. Chandrashekhar,
a member of Parliament through Mr. Sanghi, an Advocate.
That file is file 'B'. These files are said
to contain the correspondence relating to the election of respondent No. 1
exchanged between various persons, such as respondent No. 1, Mr. M. P. Birla,
Mr. S. P. Kaithan, Mr. K. K. Birla, Mr. Makahria etc. Mr. Chandrashekhar has
not appeared in the witness,box. Mr.Sanghi did not give evidence in the case.
It is not known howMr. Chandrashekhar came to
possess those documents. Nowcoming to file 'A', the story put forward by P.W.
14 is that heis a business man in Bombay; he was a friend of Mr. M. P. Birla
and at his instance he worked for respondent No. 1 during the election; after
the election respondent No. 1 fearing that there might be a raid on his
residences in connection with the evasion of taxes or duties, handed over that
file to him for safe keeping. The trial court has come to the conclusion that
in that file there is not a single document relating to any business
transaction. All the documents therein pertain to the election of respondent
No. 1 and there could have been no fear of seizure of those documents. The
story put forward by P.W. 14 is on the face of it unbelievable. It is most
likely that P.W. 14 worked for Mr. Morarka during the election as suggested
during his cross-examination. He seems to he a hired witness. But the fact that
a document was procured by improper or even illegal means will not be a bar to
its admissibility if it is relevant and its genuineness proved. But while examining
the proof given as to its genuineness the circumstances under which if came to
be pro(1) C.A. No. 717/68 decided on 23-8.1968.
130 duced into court have to be taken into
Evidence has been adduced to prove some of
the documents found in files 'A' and 'B' but the trial court has rejected that
evidence excepting in regard to a few of the documents.
It has given good reasons in support of its
conclusion. The persons who tried to prove the signatures found on some of
those documents are strangers to those who signed them.
Their pretention as to their knowledge about
the signatures of the concerned person was proved to be hollow. The principal
witness 'Who sought to prove several of the documents contained in files 'A'
and 'B' is P.W. 33, Mr. Shankerlal Roopakdas. He is a thoroughly unreliable
witness. He appears to be a dismissed employee of one of the Birla concerns.
His pretention that he worked for respondent No. 1 during the election appears
to be false.
It is established that he was one of the
counting agents of Mr. Morarka. No application was made to this Court to admit
any documents as additional evidence in the case. Therefore in this appeal we
are only concerned with those documents which were admitted in evidence by the
trial court. As found by the trial court voluminous false evidence has been
adduced in this case both on behalf of the petitioner as well as on behalf of
respondent No. 1. Several of the answers given by respondent No. 1 during his
cross examination were not found to be true by the trial court.
From an over-all review of the material on
record, we are left with an uneasy feeling about the evidence adduced in the
case. We have no doubt in our mind that in the Jhunjhunu parliamentary
constituency during the last General Election enormous expenses had been
incurred in support of the candidature of respondent No. 1. We do not know
whether the same was true of Mr. Morarka though Ex. P. W. 14/5 indicates such a
possibility. In the election petition, the petitioner sought not only to get
set aside the election of respondent No. 1, he went further and claimed the
seat for Mr. Morarka. Mr. Morarka in his written statement supported the pleas
taken by the petitioner. Thereafter respondent No. 1 gave notice of filing
recrimination against Mr. Morarka. Immediately thereafter Mr. Morarka withdrew
his claim for the seat and contended that the petitioner could not claim the
seat for him. Hence the second relief asked for by the petitioner in his
petition was ordered to be dropped. This change in the front is not without
This takes us to the expenses said to have
been incurred by respondent No. 1 in connection with his election under the
We shall now take up the expenses said to
have been incurred by respondent No. 1 under various heads (only such of them,
as are pressed before us).
131 As seen earlier the petitioner's
allegation in the petition was that respondent No. 1 incurred an expense of
about six lakhs of rupees for purchasing petrol and Mobil oil in connection
with his election. In his election return respondent has shown an expense of
only Rs. 5466-89P under that head. Though the petitioner alleged in his
petition that respondent No. 1 had incurred an expense of about 6 lakhs for
purchase of petrol and Mobil oil, evidence was led only about three payments in
that regard viz. (1) a sum of Rs. 2,000/to the proprietor of Arjundeo Dharmat
of Caltex and (2) a sum of Rs. 5,0001and, another sum of Rs. 5,700/to M/s.
Gangaram Jamnadhar of Burmah Shell. No person connected with any of these pumps
was examined in support of the alleged payments. The account books of those
firms were also not got produced. To prove the, payment of sum of Rs. 2,000/to
Arjundeo Dharmal of Caltex, one Mr. Radha Kishan (PW 10) was examined. His case
is that he is a friend of the son of the proprietor of the firm M/s. Arjundeo
Dharmat and he chanced to be present at the pump when one "B. S. Choudhary
of Birlas" came and paid to Arjundeo Rs. 2,000/-.
Later-on he was told by the proprietor of the
firm that it was in connection with the supply of petrol and oil to respondent
No. 1. The learned trial judge was unable to place reliance on this chance
witness. His evidence is highly artificial. No satisfactory explanation is
forthcoming for not examining the proprietor of the firm in question. Now
coming to the payment of a sum of Rs. 5,000/, the only witness who speaks about
it is P.W. 19 Vasudev.
His evidence for good reasons have been
disbelieved by the learned trial judge. He is clearly a partisan witness. For
the alleged payment of Rs. 5,700/on January 28. 1967, the witness examined is
P.W. 21. The learned trial judge has disbelieved this witness as well. we see
no reason to differ from the assessment of the evidence made by the learned
trial judge, According to P.Ws. 19 and 21 they chanced to be present 'it the
time when payments in question were made through some third parties. Here again
neither anyone connected with the firm was examined nor the firm's accounts
It was alleged in the election petition that
respondent No.1 had spent about 2 lakhs of rupees on printing of posters,
pamphets, leaflets and cartoons and the preparation of badges of the election
symbol "Star", rubber balcons with the slogans " vote for
Birla" and flags of silk and cotton clothes and their distribution as also
on wall paintings.
Before us no arguments were advanced as
regards the expenditure said to have been incurred for badges of election
symbol. rubber baloons and flags. It was urged before us that respondent No. 1
had paid a sum of Rs. 22,000/to M/s. Rai Bros. of Bhiwani for wall painting.
Several witnesses spoke to the fact that the
Jhunjhunu constituency was flooded with wall paintings seeking vote for
respondent No. 1. But strangely enough no-one connected with Rai Bros. was
examined in the case. The proprietor of Rai Bros. was summoned to give evidence
in the case but he did not appear in court. On the other hand one Mr. Ganesh
Dutt appeared in court and presented a petition alleging that respondent No.
1's election agent is not allowing the proprietor of Rai Bros., Mr. Ganpat Rai
Joshi to appear in court and therefore Mr. Joshi had asked him to produce the
account-books of that firm in court. Neither Mr. Ganesh Dutt was examined in
the case nor the account-books otherwise proved. The allegation made by Mr.
Ganesh Dutt that the election agent of respondent No. 1 did not permit Mr.
joshi to appear in court remains unproved. The resulting position is that there
is no evidence to show that any amount was paid to Mr. Joshi either by
respondent No. 1 or his election agent or someone with his consent or under his
authority. Similarly there is no satisfactory evidence about any excess
expenditure incurred by respondent No. 1 in publishing pamphlets, leaflets and
handbills though as many as 56 different types of pamphlets appear to have been
distributed during the election soliciting votes either for respondent No. 1 or
for the Swatanfra party. There is no evidence as to who issued those pamphlets.
As seen earlier, respondent No. 1 had the powerful support of the members of
the Birla family as well as of some other industrialists.
Evidence was adduced to show that 76,000
copies of a cartoon-two starved out and emaciated bullocks evidently depicting
that Congress rule has brought in nothing but poverty were got printed by one
Mr. Saxena, an Executive in a Birla concern at the Hindustan Times Press a
Delhi for which he had paid Rs. 2,300/as charges. There is no evidence to show
that these cartoons were got printed by respondent No. 1 nor 'is there any
evidence to show that they were got printed by Mr. Saxena with the consent of
respondent No. 1 or under his authority. It may be that they were got printed
to aid the election campaign of respondent No. 1 through those cartoons could
have been used in any constituency in India. Mr. Saxena has not been examined
as a witness in the case.
The fact that this cartoon was widely
published in the constituency as is clear from the evidence adduced in the case
without more cannot show that the expenditure for getting those cartoons
printed was incurred by respondent No. 1.
Evidence was led to show that at about the
time of the election, several telephones installed in the residences of some of
the members of the Birla family and some of their executives were extensively
used and the telephone charges ran into few thousands of rupees but there is no
evidence to show that either those 133 telephones were used in connection with
the election or they were used at the instance or under the authority of
respondent No. 1 Evidence was also adduced to show that a large number of jeeps
and cars were used in connection with the election.
No evidence was adduced to show that they
were either used by respondent No. 1 or that they were used with his consent or
under his authority. In the circumstances of this case, the possibility of his
friends using them, on their own cannot be ruled out. As seen earlier several
jeeps were purchased through one of the business associates of Birlas at about
the time of the election but here again as mentioned earlier there is no
evidence to show that those jeeps were used in Jhunjhunu constituency at the
time of the election.
Evidence was led to show that thousands of
persons worked for respondent No. 1 but there is nothing to show that they did
not work voluntarily. At any rate there is no evidence to show that they were
either paid for or at least their expenses were met by respondent No. 1. It was
said that respondent No. 1 ran several messes to feed his workers as well as
the voters. The trial court has found that the evidence relating to that aspect
of the case is unreliable.
We see no reason to arrive at a different
Evidence was led to show that considerable
expenses were incurred for arranging meetings. Here again there is no reliable
evidence to show the amounts that were likely to have been spent for arranging
the meetings or even to connect respondent No. 1 with the expenditure incurred
in connection with those meetings.
Though the petitioner has failed to establish
that any of the items of expenditure alleged to have been incurred by
respondent No. 1 was in fact been incurred by him, there is voluminous and
fairly convincing evidence to show that the constituency was flooded with
election literature including posters, cartoons, painting of the walls,
leaflets, handbills etc. on behalf of respondent No. 1. There is also evidence
to show that large number of vehicles were used in connection with the
election. It is clear from the evidence on record that money was freely and
liberally spent to further the prospects of respondent No. 1. In addition to
this there is also evidence to show that in about December, 1966. an account
was opened in the Pilani branch of the United Commercial Bank in the name of
P.W. 32, Mr. Raghuvir Singh who was at that time the President of Jhunjhunu
District Swatantra Party. On the very day of the opening of the account a
cheque for Rs. 1,50,000/issued by C.A.C.O. (Cement Allocation and 134 Co-ordination
Organization) was credited. Thereafter cash .deposits of over 2 lakhs of rupees
were, made in that account. These monies were drawn by P.W. 32 mostly by
issuing cheques in favour of Mr. Tibriwalla, one of the Birla Executives.
According to P.W. 32, the contribution made by C.A.C.O. was made to the
Swatantra party and the cash deposits made were the amounts collected by him
for the benefit of the Swatantra party and that he spent the amounts received,
in connection with the, election of the Swatantra party candidates in the
Jhunjhunu constituency. P.W. 32 is undoubtedly an interested witness. He was a
supporter of respondent No. 1. He himself contested one of the assembly
constituencies in the Jhunjhunu parliamentary constituency.
In the 1962 General Election, he opposed
respondent No. 2 and lost the election by a narrow margin. It is clear from his
cross-examination (the court permitted the Counsel for the petitioner to
cross-examine him) much reliance cannot be placed on his evidence. Counsel for
the appellant asked us to hold that the account in the name of PW-32 was in
reality the account of respondent No. 1; PW-32 lent his name as a cover. In
fact it was Mr. Tibriwalla who withdrew the amounts from that account and
utilized the same in connection with the election ,of respondent No. 1. In
support of this contention he relied on the following circumstances :The money
was paid by C.A.C.O., a concern in which Birlas were interested. In Ex. PW
42/6, Mr. M. P. Birla had written to respondent No. 1 to say that he would
persuade C.A.C.O. to make some contribution to Swatantra party and further the
cheque could be sent through respondent No. 1 and cheques were mostly issued in
favour of Mr. Tibriwalla.
We agree with the learned judge of the High
Court that there is room to suspect that most of the amounts drawn from this
account were likely ,to have been spent to further the election prospects of
respondent No. 1. C.A.C.O. is not a Birla concern. It is an organization formed
by several cement manufacturers. Birlas are only ,one of them. There is no
evidence to show that the cheque in question was sent through respondent No. 1.
It is proved that C.A.C.O.. had contributed in connection with the election not
only to the Swatantra party but also to the Congress party, the Jan Sangh and
several other splinter groups. It has even given contributions to individual
candidates as is seen from its accounts. In fact the contribution given by
C.A.C.O. to the Congress party is much larger than maid by it to the Swatantra
party. Mr. Tibriwalla was a member of the Swatantra party. From the facts
proved it is not possible to come to a definite conclusion that be acted on
behalf of respondent No. 1. If one looks at the way C.A.C.O. was distributing
amounts during the election as donations, one is constrained to feel that those
payments were intended 135 as investments. Possibly C.A.C.O. did what other
business concerns are doing. Such donations to political parties whether done
in the crude way in which C.A.C.O. did or in a more subtle way would undermine
the very foundation of our society. No democracy can survive, however ideal is
the Constitution by which it is governed, if the principles underlying the
Constitution are ignored. The best democratic Constitution can go the way the
Weimar Constitution went.
It is true that many times corrupt practices
at election may ,not be able to be established by direct evidence and the
commission of those corrupt practices may have to be inferred from the proved
facts and circumstances but the circumstances proved must reasonably establish
that the alleged corrupt practice was committed by the returned candidate or
his election agent. As, mentioned earlier preponderance of probabilities is not
For the reasons mentioned above this appeal
must fail and it is hereby dismissed. But we cannot leave this appeal without
expressing our uneasiness about the law relating to election expenses. Section
123(6)is by and large ineffective in controlling election expenses. There are
ways to bypass that provision. From what we have seen in the various election
cases that came be-fore us we are of the opinion that law controlling election
expenses has been reduced to a mockery. , We can only repeat the observations
of this Court in Rananjaya Singh's case(1) that "the appeal in this
connection must be to the parliament." Now coming to the question of
costs, the trial court felt extremely unhappy in having had to award costs to
respondent No. 1. But it had to because of the compulsion of the lawsee s. 119
of the Act. We are not faced with any such compulsion. There is no provision in
the Act which compels the appellate court to award costs to the successful
party in an election appeal. This is eminently a fit case where we should not
award costs to the returned candidate. The resulting position is that the
appeal is dismissed but the parties are directed to bear their own costs in
(1)  1 S.C.R 671.