Om Prabha Jain Vs. Charan Das & ANR
[1975] INSC 92 (10 April 1975)
GUPTA, A.C.
GUPTA, A.C.
BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.
CITATION: 1975 AIR 1417 1975 SCR 107 1975 SCC
(4) 849
CITATOR INFO :
R 1975 SC2299 (414) R 1978 SC 351 (5)
ACT:
Representation of the People Act (43 of 1951)
Ss. 77, 116-A and 123(6)--Corrupt Practice-Standard of proof.
Practice and Procedure- Finging by High Court
in election disputes-Interference by Supreme Court.
HEADNOTE:
Section 77 of the Representation of the
People Act, 1951, provides that every candidate at an election shall keep an
account of expenditure incurred in connection with the election and that the
total expenditure shall not exceed the amount prescribed.
The appellant and the first respondent
contested the election to the State Legislature and the first respondent was
successful. The appellant challenged the election on the ground, inter alia,
that the first respondent was guilty of ,corrupt practice having incurred or
authorised expenditure in contravention of s. 77. The election petition was
dismissed by the High Court.
In appeal to this Court, it was contended
that there was evidence to show that the expenditure incurred by D, in
connection with the use of two jeeps during election was authorised by the
first respondent and if that expenditure was added to the amount shown by the
first respondent as his expenditure, the total expenditure would exceed the
prescribed limit of Rs. 9000.
During the pendency of the appeal. s. 77 was
amended by inserting two Explanations in the section. Explanation 1 provides
that the expenditure incurred or authorised in connection with the election of
a candidate by a political party or by any other association or body of persons
or by any individual other than the candidate or his election agent, shall not
be deemed to be expenditure in connection with the election, incurred or
authorised by the candidate or his election agent.
Dismissing the appeal,
HELD : (Per curiam) The allegation of corrupt
practice against the respondent has not been proved beyond reasonable doubt.
[109H & 123F] (Per M. H. Beg, J.)-If a charge of a corrupt practice is held
to have been established against a candidate, it may have grave repercussions
on his reputation and political future; and, therefore, prudence requires that
the stricter standard of proof of a criminal charge should be applied.
[109F] The High Court has held that as the
precise connection of D with the first respondent was not satisfactorily
established, the charge of corrupt practice against the first respondent must
fail. This Court will not, without a ,better reason than merely that another
inference on the evidence is possible, disturb such a finding even on a
statutory first appeal on facts. There is, if a bare balance of probabilities
could decide the case, sufficient circumstantial evidence to connect the
expenditure incurred by D with the respondent who did not even produce any
account books, though the law requiem him to maintain satisfactory accounts to
support his return of expenses;
yet, if the rules of circumstantial evidence
were applied with the strictness with which they axe applicable in criminal
cases it must be held that the case against the first respondent has not been
proved beyond reasonable doubt. [109D-E-F-G-H] 108 (Per Y. V. Chandrachud and
A. C. Gupta, JJ.) : (1) The appeal has to be decided in the light of the
Explanation added to s. 77.
(2)The findings of fact recorded by the High
Court should not be disturbed in an appeal under s. 116-A, unless there was
some serious error in the findings. In the present case, the Judge who tried
the petition, had recorded his impression about the demeanour of the witnesses
whenever he thought necessary. The findings based solely on the demeanour of
the witnesses cannot be reversed in appeal, but the conclusions of fact
recorded upon a consideration of the probabilities can be tested to see if they
contain any serious error [121H 122A] (3)A charge of corrupt practice is
quasi-criminal in nature and must be proved beyond reasonable doubt. [122D]
(4)Before the High Court the parties proceeded on the footing that the question
raised related to both allegations, namely, that the respondent incurred or
authorised the expenditure incurred on the two jeeps, and, therefore, the scope
of the inquiry in appeal cannot be limited only to the question whether the
respondent himself incurred the expenditure. [121A] (5) There is no evidence of
the respondent incurring or any direct evidence of his authorising the
expenditure incurred for the jeeps. [121D] (6) From the fact that the
respondent used the jeeps once or twice, it could not be inferred that he paid
for their hire, because, it is well known that candidates at an election very
often use their supporters' vehicles. [121D-E] (7)There is also no reliable
circumstantial evidence to connect the respondent with the expenditure incurred
by D. [121H] (8)The respondent did not produce his account of election
expenses-his case being that he had destroyed the papers after preparing his
return of election expenses. From the fact of non-production of accounts no
adverse inference can be drawn against the respondent that the expenditure was
really incurred by the respondent himself. D who made the payments gave
evidence, and he denied that the respondent authorised him to make the payments
and this evidence was accepted by the High Court. [121 E-F] D. P. Mishra v.
Kamal Narain and Anr. [1971] 1 S.C.R. 9, distinguished.
(9)The circumstances proved in the case are:
(a) that D worked for the respondent; (b) that D hired the two jeeps and used
them for the respondent's election campaign; and (c) that he sometimes operated
from the respondent's election office. But these circumstances do not justify
the inference that the respondent put D in charge of his transport
arrangements. [122F-H] (10)As regards the money spent by D it is not believable
that he spent his own money. But the only alternative inference is not that it
was the respondent's money that was spent and that the respondent authorised D
to spend it, especially when there is evidence to show that the respondent's
election campaign received financial assistance from other sources, such as the
Jan Sangh Party. [123B-C] (11)A note book put in evidence by the appellant
seems to suggest that a part of the money paid for the 2 jeeps was taken from
the respondent. But, the note book was not kept in the regular course of
business, it was not a reliable document and there was no independent evidence
proving the correctness of the entries therein. Therefore, it is not possible
to rely on the entries in the note book and it must be left out of
consideration. [120E-121C-122H-123A] (12)It may be difficult to get hold of
evidence in an election dispute to prove such a corrupt practice, but the law
requires proof beyond reasonable doubt. [123E-F] 109
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1551 of 1973.
From the judgment and order dated 31st August
1973 of the Punjab & Haryana High Court in Election Petition No. 42 of
1972.
L. M. Singhvi, A, Gupta, S. L. Yadava, S. K..
Dhingra and S. Swarup, and J. B. Dadachanji, for the appellant.
H. L. Sibal, S. S. Khanduja, Susnik Kumar
Jain, Vishwanath K. V. and Kapil Sibbal, for respondent No. 1.
The Judgment of the Court was delivered by
BEG, J.-I would like to point out that the High Court, in the judgment under
appeal, recorded the finding, after a very comprehensive and detailed
discussion of the whole evidence "that the two jeeps in question actually
worked in support of the respondent's election campaign right from February 18,
1972 to March 11, 1972 under the charge and direction of Duni Chand".
Nevertheless, the High Court finally held that, as the precise connection of
Duni Chand with the contesting respondent was not satisfactorily established, the
charge of corrupt practice against the respondent must fail. It is the well
established practice of this Court (see e.g. B. B. Karemore & Ors. v.
Govind & Ors.) (1) that it will not, without a better reason than merely
that another inference, on evidence on record, is possible, disturb such
findings even on a statutory first appeal which is not confined to questions of
law.
We cannot forget that, if a charge or a
corrupt practice, as an electoral offence, is held to have been established
against a candidate, it may have grave repercussions on his reputation and
political future. Therefore, prudence requires that we should apply the
stricter standard of proof of a criminal charge in such a case and not decide
the case on a bare balance of probabilities.
It appears to me that, although there is, if
a bare balance of probabilities could decide the case, sufficient
circumstantial evidence to connect the expenditure incurred by Duni Chand with
the respondent, who did not even produce any account books though the law
requires him to maintain satisfactory accounts to support his return of
election expenses, yet, if we are to apply the rules of cir- cumstantial
evidence with the strictness with which they are applicable in criminal cases,
it may be held here that the case against the contesting respondent is not
proved beyond reasonable doubt despite all the circumstances appearing against
him. There are other circumstances which suggest another possible inference.
Hence, we are left in doubt on the question whether he or the Jan Sangh party,
from which he broke away after his election, had incurred these expenses
through Duni Chand. 1, therefore, though not without some hesitation, agree
with the conclusion reached by my learned brethren that this appeal must be
dismissed.
I also agree that, in the circumstances of
this case, the parties should bear their own costs.
(1) A.I.R. S.C. 405.
110 GUPTA J.-This is an appeal under Section
116A of the Repre- sentation of the People Act, 1951 (hereinafter referred to
as "the Act") from an order passed by the Punjab and Haryana High
Court at Chandigarh dismissing the election petition filed by the appellant
calling in question the election of the first respondent to the Haryana State
Legislature from the Kaithal Assembly Constituency in 1972. Poll was taken on
March 11, 1972. The first respondent who secured 26095 votes was elected
defeating the nine other candidates who contested the election. Appellant Om
Prabha Jain who polled 22673 votes secured the next position in the contest. In
her election petition the appellant hereinafter also referred to as the
petitioner, alleged various corrupt practices against the returned candidate
seeking his election to be declared void under sec. 100 of the Act and also
prayed for an order under sec. 99 naming him guilty of corrupt practice so that
he might be disqualified under sec.
8A of the Act. In this appeal the challenge
is confined to the allegations of corrupt practice under sub-sec.(6) of sec.
123-"incurring or authorising of expenditure in contravention of Section
77". Sec. 77 as it stood when the election petition was presented was in
these terms:
"77. Account of election expenses and
maximum thereof.-(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 authorized 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 such particulars
as may be prescribed.
(3)The total of the said expenditure shall
not exceed such amount as may be prescribed." For the State of Haryana the
prescribed limit on election expenses was Rs. 9000.
During the pendency of the appeal in this
Court an Ordinance, namely, the Representation of the People (Amendment)
Ordinance, 1974 was promulgated amending sec. 77 of the Act by inserting two
explanations to sub-sec. (1) thereof. The explanations read as follows : -
Explanation 1.-Notwithstanding any judgment, order or decision of any court to
the contrary, any expenditure incurred or authorized in connection with the
election of a candidate by a political party or by any other association or
body of persons or by any individual (other than the 111 candidate or his
election agent) shall not be deemed to be, and shall not ever be deemed to have
been, expenditure in connection with the election incurred or authorized by the
candidate or by his election agent for the purposes of this sub-section :
Provided that nothing contained in this
Explanation shall affect- (a) any judgment, order or decision of the Supreme
Court whereby the election of a candidate to the House of the People or to the
Legislative Assembly of a State has been declared void or set aside before the
commencement of the Representation' of the People (Amendment) Ordinance, 1974;
(b) any judgment, order or decision of a High
Court whereby the election of any such candidate has been declared void or set
aside before the commencement of the said Ordinance if no appeal has been
preferred to the Supreme Court against such judgment, order or decision of the
High Court before such commencement and the period of limitation for filing such
appeal has expired before such commencement.
Explanation 2.-For the purposes of
Explanation 1, political party" shall have the same meaning as in the
Election Symbols (Reservation and Allotment) Order, 1968, as for the time being
in force.'.
The Representation of the People (Amendment)
Ordinance, 1974 was subsequently repealed and replaced by the Representation of
the People (Amendment) Act, 1974 (Act 58 of 1974) inserting the aforesaid
explanations in sec. 77 of the Act.
The appeal before us does not attract the
proviso to Explanation 1 and sec. 77 with the explanations added will govern
this case.
The particulars of the charge that the
returned candidate incurred ,or authorized expenditure above the prescribed
limit are set out in clauses (a) to (1) of paragraph 14 of the election
petition. Dr. Singhvi, learned counsel for the appellant, confined his
submissions to the expenditure incurred in connection with the use of two jeeps
bearing Nos. 6424 and 1116 mentioned along with several other vehicles in
clause (e) of paragraph 14. It is alleged in that paragraph that though the
first respondent showed in his return his total expenditure as Rs. 5844/24 p.,
his expenses exceeded in any case the prescribed limit of Rs.
9000/-. The contents of paragraph 14 of the
election petition are denied in paragraph 14 of the written statement of the
first respondent wherein he has stated that he never used most of the vehicles
mentioned in the election petition including the jeeps 6424 and 1 1 16.
112 Of the Issues framed, only Issues Nos.
14, 15 and 16 are relevant for the purpose of this appeal. These Issues are as
follows:- "(14) Whether respondent No 1 incurred or authorised expenditure
on the various items enumerated in subparagraph (a) to (1) of paragraph 14 of
the election petition.
(15) If any of the items of expenditure
referred to in the preceding issue is proved to have been incurred by the
returned candidate, does the addition of that extra amount to the amount of
expenses shown by the returned candidate to have been incurred by him in the
return of election expenses take the total amount spent by him above the
statutory limit of Rs. 9,000/- ? (16) If the preceding issue is proved, has the
returned candidate not committed the corrupt practice defined in section 123(6)
read with section 77 of the Act ?" Before we turn to the evidence bearing
on these issues it would be appropriate to state here certain facts in the
background which must be kept in mind in considering the evidence. The
appellant contested the election as a candidate of the Indian National
Congress.The first respondent had filed several nomination papers, two of them
as a candidate of the Bhartiya Jan Sangh and two as indepen- dent. He had
signed the pledge of the Jan Sangh, but ultimately be contested the election as
an independent candidate. He had been a member of the Municipal Committee of
Kaithal on the Jan Sangh ticket and was elected its President in April, 1971 as
a nominee of that party. Some time after the election in question in the present
appeal was over, the first respondent was served with a charge- sheet by the
Bhartiya Jan Singh, Haryana State, alleging that he had betrayed the
Organisation by failing to join the Jan Sangh Legislature Party which, it was
said, he had promised to do as soon as the result of the election was declared;
finally he was expelled from the Party. These facts are not in dispute.
The first witness examined by the petitioner
to prove that the two jeeps in question were hired for the first respondent is
P.W. 3 Jagjit Singh, a taxi driver of Delhi.
He proves the letter Ext. P.W. 3/1, said to
have been given to him by Brij Mohan, a neighbour, who asked him to send four
or five jeeps to respondent Charan Dass at Kaithal.
Ext. P.W. 3/1 is a letter dated February 20,
1972 addressed to Brij Mohan by one Duni Chand Gupta. The letter translated
into English from the original Urdu reads as follows "Kaithal 20-2-72.
Babu Brij Mohan Ji.
113 It is requested that I had taken from you
two Nos. jeeps on dated 18-2-1972 bearing No. 1116 and 6424 for the election of
Shri Charan Dass, for which I had paid you the amount of Rupees two thousands
in Advance. Now I require five Nos. jeeps more. If you can manage then in- form
at once so that may send the advance through somebody. Inform at once, hire
charges are no consideration, the work should be done.
Sd/- Duni Chand Gupta, Kaithal.
C/o Shri Charan Dass, Election Office
Kaithal." Two things are to be noted in this letter, that Duni Chand
claims that he had paid Rs. 2000 in advance for the two jeeps bearing numbers
1116 and 6424, and that he gives his address, care of Charan Dass election
office, Kaithal. The evidence of P.W. 3 is that he could secure only two jeeps
from a place called Abohar which he sent to Charan Dass.
The next witness who speaks about these two
jeeps is P.W. 5 Puran Chand. He is a shopkeeper in District Shri Ganga Nagar in
Rajasthan. HE claims that he was the owner of jeep numbered 6424 and his cousin
Munshi Ram owned the other jeep, 1116. His evidence is that he and Munshi Ram
left Shri Ganga Nagar on February 13, 1972 with the two jeeps reaching Delhi
the next day where they contacted Brij Mohan, a commission agent, for getting
their "vehicles hired out".
On February 17, Duni Chand came to Brij Mohan
seeking to hire two jeeps. Brij Mohan settled the terms of hire which were that
Duni Chand would pay Rs. 130/- per day for each jeep from February 18 to March
11, 1972 besides Rs. 51per day to the driver of each jeep and also pay for the
petrol.
The witness says that Munshi Ram' and he were
each paid Rs. 1000 in advance 6y Duni Chand. On March 4, Duni Chand paid him
Rs. 3500./- at Kaithal towards the hire of both the jeeps and got a receipt
from him which is Ext. P.W. 511;
the balance, Rs. 740//-, was collected later
by the drivers of the jeeps.
P.W. 6 Surja Ram and P.W. 7 Madan Lal are the
drivers of jeeps Nos. 1116 and 6424 respectively. P-W. 6 claims that respondent
Charan Dass used to go about in his jeep and the respondent's own car
"used to remain parked in those days".
The witness states further that the
respondent never went in the jeep driven by Madan Lal. The statement that the
respondent's car' was Dot used during the election days is not consistent with
what appears from paragraph 14 (b) and (c) of the election petition where the
petitioner states 114 that the respondent used his car in connection with
election campaign but has not shown the expenses incurred on that car.
P.W. 7 Madan Lal's evidence is that on
arriving at Kaithal with the jeep the witness was deputed by Duni Chand to work
at village Cheeka. This witness claims that the first respondent travelled in
his jeep on two occasions, first on the 18th of February and on Another day,
thus contradicting P.W. 6 who had said that the respondent never used the jeep
driven by P.W. 7.
From the evidence of P.W. 3, P.W. 5, P.W. 6
and P.W. 7 it would appear that Duni Chand hired the two jeeps in question to
help the election campaign of the respondent.
Duni Chand, also known as Duli Chand, was examined
as a Court Witness. His evidence is that he and six or seven other persons had
formed a party to work against the Congress candidates in the Kaithal and
Pehowa constituencies. This party, however, was not given a name nor did it
hold any meeting or issue any poster. He says that each member of this party
contributed Rs. 1000/- to carry on the election propaganda. He admits having
written the letter Ext. P.W. 3/1, and that he had hired the two jeeps in
question through Brij Mohan to work against the Congress candidates in the
aforesaid two constituencies.
According to him the members of this party
went round in those jeeps to canvass support for respondent Charan Dass as they
considered the respondent to be the best of the candidates. Asked about the reason
why in the letter Ext.
P.W. 3/1 he had given his address as
"care of Charan Dass' election office, Kaithal", he says that this
was done "to facilitate Brij Mohan's man to find me for collecting the
balance of the hire money......... the man could have inquired the address of
my shot) from the election office of Charan Dass". The witness denies that
he had given that address because he was "incharge of the election work of
the respondent relating to employment of motor vehicles". The witness adds
that he and his friends who worked for first respondent at the election did not
maintain any record containing particulars of how the jeeps were employed by
them during those days. In answer to a question put to him in cross-examination
regarding a note-book which figures prominently in this case, Duni Chand admits
that tic not book, Ext. P.W. 8/5, is partly in his handwriting.
This note-book which we will consider in due
course was also written partly by Raghbir Chand who like Duni Chand was
examined as a Court Witness. He claims to be one of the group of seven or eight
persons spoken of by Duni Chand who were helping the first respondent.
The petitioner herself deposing as P.W. 30
has narrated how she came to know of the said two jeeps being employed by respondent
Charan Dass. According to her fifteen to twenty jeeps were used by him for his
election work. She noted the numbers of these 115 vehicles in a diary; this
record is based on her personal observation and also on information received
from her workers. In answer to a question put by the Court she read out the
numbers of the jeeps noted in her diary in the following order: "5948,
6055, 6009, 2574, 1710, 9997, 6424, 1116, 6675, HRJ-5324, HIM-4147, 6170 and
8363." The note-book, Ext. P.W. 8/5, seems to be the most important
documentary evidence produced on behalf of the petitioner to prove that the two
jeeps in question had been employed by respondent Charan Dass. On some pages of
this note-book are recorded in an extremely haphazard manner the numbers of several
vehicles with certain dates and figures seeming to indicate when some of the
vehicles first reported for duty and how they were deployed. The note-book also
mentions different sums of money stating or hinting at the sources' wherefrom
these amounts were collected and includes certain entries suggesting payments
made for the use of these vehicles. The two jeeps, 6424 and 1116 are among the
vehicles mentioned in the note- book. The petitioner states in her evidence
that P.W. 9 Mohan Bahadur brought the note-book to her at her residence in
Kaithal in the last week of September, 1972. P.W. 9 Mohan Bahadur, whose
deposition was recorded on October 5, 1972, states that the note-book was given
to him "last week" by Punnu Ram, Joint Secretary of the Kaithal Jan
Sangh. According to the witness, Punnu Ram told him that Jan Sangh had expelled
Charan Dass from the Party and that the note-book would be of help to the
petitioner in her election petition. The witness adds that Punnu Ram knew that
the witness was a supporter of the petitioner.
In this note-book the name of Anil Kumar
Gupta, a son of the first respondent, appears to be written at two places.
Admittedly, Anil Kumar was a B.A. student in
the R. K. S. D.
College, Kaithal, and one of his subjects was
Civics. Pages 3 to 8 of the note-book contain certain notes on Civics.
According to Mohan Bahadur and the petitioner
there were three loose sheets of paper inside the notebook. These loose sheets
of paper which have also been produced with the note-book are: (1) a Hindi
manuscript containing instruc- tions for the polling agents (Ext. C.W. 2/1),
(2) bill of a loudspeaker dealer in the name of Charan Dass for Rs.
101/50p. (Ext. P.W. 24/1), and (3) a receipt
in Hindi dated March 6, 1972 for Rs. 41/50p. for hire of loudspeakers, signed
by one Shadi Lal Shad, a worker of the Jan Sangh Party.
As stated already, it is difficult to find
any order or method in the entries recorded in this note book though the fact
that it belonged to the respondent's son might appear to lend some authenticity
to the document. Respondent Charan Dass (R.W.15) and his election agent Gian
Chand (R.W.14) both however deny that any such notebook was maintained by them
or that they bad asked Duni Chand or Raghbir Chand to make the entries therein.
It is also not clear, how the notebook found its way lo the petitioner.
Punnu Ram, Joint Secretary of the Kaithal
Unit of the Jan Sangh Party, who is said to 116 have handed over the note-book
to Mohan Bahadur was examined by the respondent (R.W.13). Punnu Ram denies
having made over any note-book to Mohan Bahadur whom he says he did not know.
His evidence is that he saw the note-book for the first time in Court.
Punnu Ram admits that lie worked for the
first respondent at the election on behalf of his Party. The witness proves a
document (Ext.R.W.13/1) containing a statement signed by Shadi Lal Shad that he
had "got prepared" 470 small flags and 1000 stencils for the total
cost of Rs.
38.80p. This document contains the signature
of Punnu Ram who appears to have verified the correctness of its contents. In
his deposition Punnu Ram explains that the Jan Sangh "had got the flags
and the election symbol of respondent No. 1 prepared as the party was
supporting respondent No. 1". The witness adds that the Jan Sangh spent a
total amount of Rs. 400/- or Rs. 500/on the election of the first respondent.
This part of Punnu Ram's evidence is relevant to the other aspect of the case,
namely, who really paid for the two jeeps if it was found that they had been employed
for the respondent's election campaign.
Raghbir Chand who claims to have made some of
the entries in the note-book was examined as a Court Witness.
His evidence is that Janardan Singh who was
his friend and a member of the Jan Sangh had asked him to make certain entries
in the note-book. He says that the first column of page 260 and the whole of
page 261 of the notebook were in his handwriting. The two jeeps, 1116 and 6424,
are mentioned in the first column of page 260 with the word 'Delhi' in Urdu
written against them. According to Raghbir Chand pages were blank when the
note-book was brought to him by Janardan Singh. Raghbir Chand says that lie did
not know why Janardan Singh wanted him to write in the note-book and that he
obliged his friend without asking any questions. The writings on pages 260 and
261 appear to be in opposite directions, which is one example of the lack of
order and method in maintaining the note-book. Raghbir Chand's explanation is
that after he had finished what he was asked to write on page 260 and closed
the note-book, Janardan Singh thought of getting some more entries made by him
and opened the note-book at page 261 upside down, and Raghbir Chand copied on
the page as he found it whatever Janardan Singh dictated to him.
Janardan Singh who claims to be a worker of
the Jan Sangh was also examined as a Court witness. According to him Pawan
Kumar, Joint Secretary of the Jan Sangh at Panipat, came to see him towards the
end of March, 1972 and left with him the note-book (Ext. PW. 8/5) and a Paris
containing certain figures in English and wanted him to get these figures which
were all numerals, copied into the note-book.
The witness did not ask him why, and as a
worker of the Jan Sangh proceeded to "obey his orders". He says that
he and Raghbir Chand had "blind faith" in each other, and at his
request Raghbir Chand copied the figures from the Parcha on pages 260 and 261
of the note-book. These pages however contain certain names of places and
persons and also other words; according to Raghbir 117 Chand these also were in
his handwriting, but Janardan Singh maintains that the Parcha from which
Raghbir Chand had copied did not contain any such names or words. Janardan
Singh's evidence is that later Pawan Kumar collected the note-book from him.
At the conclusion of Janardan Singh's
deposition, the learned Judge appears to have recorded a note of his impression
that "throughout his statement, this witness has been displaying
nervousness, and prevaricating and avoiding to give straightforward answers to
the questions put to him".
Duni Chand's version is that what he had-
written in the notebook was at the instance of Rattan Lal, President of Ward
No. 8, Kaithal Jan Sangh Party. Duni Chand says that Rattan Lal expressed
displeasure at the respondent failing to honour his promise to join the Jan
Sangh legislature party, if elected, and enquired of Duni Chand if he could
produce any evidence which would go against the respondent in the election
dispute, then pending in the High Court.
Duni Chand made over to Rattan Lal the
receipt, Ext. P.W.5/1, given by Puran Chand for Rs. 3500/- paid towards the
hire of the jeeps 1116 and 6424. Five or six days thereafter, Rattan Lal again
came to see Duni Chand with a diary and a note-book. Duini Chand's evidence is
that he copied on the different pages of the note-book ,whatever Rattan Lal
read out from the diary. This was about a month after the election. Duni Chand
says that when thenote-book was brought to him, it contained all the other
writings thatare now there. Duni Chand's evidence is that he did not
questionRattan Lal in what way the note-book would be used against theresponde
nt but wrote to his dictation on such pages of the note-book and in such order
as he was told. According to Duni Chand, Rattan Lal took away the diary and the
note-book after the writing was done.
Certain entries in the note-book apparently
corroborate the oral evidence as to some payments made towards the hire of the
two jeeps but it does not record all the payments claimed to have been made.
For instance, P.W.6 Surja Ram, driver of jeep No. 1116, stated that he had
signed in a note book on March 12, in acknowledgement of the receipt of Rs.
740/-, being the balance of the amount due on
account of the two jeeps. There is however nothing in the note-book to support
this statement. Assuming Surja Ram's evidence to be true, one would have
expected to find his signature in the notebook.
Pawan Kumar, Provincial Secretary, Haryana
Jan Sangh, was the first witness to be examined on behalf of the petitioner. He
disclaims all knowledge of the Parcha or the note-book which, according to him,
he saw for the first time in court. His evidence adds to the mystery
surrounding the note-book. The witness states that the first respondent was in
fact a Jan Sangh candidate but was allowed to contest as an independent as a
matter of election strategy. He adds that he went to Kaithal on March 14, 1972
and requested the respondent to declare that he would join the Jan Sangh
legislature party.
118 The respondent is said to have replied
that he would think over the matter and then inform the witness. The
respondent, it is alleged, was thereafter asked on the telephone on March 16,
to attend the Working Committee meeting of the State Jan Sangh at Karnal to be
held the next day. Though the respondents reply on the telephone was that he
would attend the meeting, he did not ultimately do so.
About two days after the meeting, the witness
went again to the respondent for an answer but still the respondent did not
give any definite reply. The witness also states that 4 or 5 days after the
result of the election was declared, the respondent came to Jan Sangh office to
have the return of election expenses prepared in consultation with the witness
and the President of the State Jan Sangh Party. The witness proves the notice.
Ex. P.W. 1/3, issued on March 25, 1972 asking the first respondent to show
cause within one week of the receipt of the notice why he should not be
expelled from the party because of his failure to join the Jan Sangh
legislature party in breach of his previous assurance.
Pawan Kumar goes on to say that in the course
of his visits to Kaithal to supervise the election campaign in support of the
respondent, he used to find Duni Chand sitting in the respondent's election
office and balloting duties to the different vehicles and also making payments
in that connection. it is also the evidence of this witness that though the
first respondent was really a Jan Sangh candidate, the Party did not incur any
expenditure on his election. According to him even the expenses of the public
meeting arranged by Jan Sangh in support of the respondent at Kaithal on March
4, 1972 were met by the respondent himself.
The evidence of Pawan Kumar does not seem to
be altogether consistent and some of his statements also appear to contradict
what certain other witnesses have said. Pawan Kumar has stated that 4 or 5 days
after the result of the election was declared he met the respondent when the
latter came to the Jan Sangh office to have his return of election expenses
prepared. The result of election was de- clared on March 13, 1972. On March 14,
the witness claims to have seen the respondent at Kaithal to request him to
declare that he would join the Jan Sangh legislature party.
On March 16, be requested the respondent on
telephone to attend the meeting of the Party to be held the next day.
On March 17, the meeting was held but the
respondent did not attend. On March 19, the witness again went to Kaithal to
have a discussion with the respondent and on March 25, the show-cause notice
was issued. From the above list of dates which appear from Pawan Kumar's own
evidence it is difficult to reconcile his other statement that about 4 or 5 day
after the respondent was declared elected, the respondent came to the Jan
Sangh-office to have the return of election expenses prepared in consultation
with the witness and the President of the Jan Singh Party. Pawan Kumar had also
stated that there was no telephone in the office of the Jan Sangh Party at
Kaithal. This is contradicted by P.W.18 B.
L. Khanija, Accounts Officer, Telephones,
South Division, Ambala. His evidence 119 based on his office record is that the
Secretary, Bhartiya Jan Sangh, Kaithal, was the subscriber of the Kaithal
Telephone No. 497 from February 16, 1972 to March 15, 1972.
This was, P.W.18 added, a casual connection
and was installed in the house of Rattan Lal. P.W.18 further stated that at the
time of installation of the telephone Rs. 180 were charged as advance rent, Rs.
30 as installation charges and Rs. 1000 as adjustable security, and that after
adjusting the outstanding bills against the security deposit of Rs. 1000, the
balance was refunded to the subscriber.
The total expenses incurred by the subscriber
of this telephone came to Rs. 385. The original application dated February 4,
1972 for installation of this casual telephone connection was also produced in
Court, an English trans- lation of (Ext.P.W.18/3) reads as follows:
"Bhartiya Jan Sangh, Kaithal Mandal.
Kaithal, dated the 4th February, 1972.
To, The S.D.O.
Telephones, Karnal.
Subject :-New connection for the office of
Bhartiya Jan Sangh.
It is submitted that a. telephone connection
is required for the office of Bhartiya Jan Sangh at Kaithal for one and half
month.
Kindly get the same installed.
Yours faithfully, Sd/- Amar Nath, M.C.
Bhartiya Jan Sangh, Kaithal" Pawan
Kumar's assertion that Jan Sangh did not spend any money on the respondent's
election is belied not only by R.W.13 Punnu Ram but also by another witness who
deposed for the petitioner. It is P.W. 24 Inderjit. He is an employee of a shop
at Kaithal that lends loudspeakers on, hire. P.W.
24 states that one Rai Kumar, whom he
described as a supporter of the Jan Sangh, came to his shop to hire loud-
speakers on March 4, 1972 and he paid charges a few days thereafter. This
witness proves the receipt, Ext.
P.W.24/1, for Rs. 101/50p. given by him. The
receipt appears to have been made out in the name of the respondent, Charan
Dass. The witness states that though the receipt was in the name of Charan Dass
he never came to the shop for the loudspeakers and the hiring charge was paid
by Rai Kumar.
P.W. 24 adds that he had written the name of
Charan Dass on the receipt at the instance of Raj Kumar.
The inconsistent statements of Pawan Kumar
and the contradictions between his evidence and that of P.W.24 Inderjit who
also was a witness for the petitioner, to say nothing about the evidence of
10SC/75-9 120 Punnu Ram, though he too was a member of the Jan Sangh, suggests
that either Pawan Kumar had no knowledge of at least some of the facts he was
talking about or that some of his statements were deliberately false.
On the evidence discussed above the findings
recorded by the High Court may be summarised as follows 1.Duni Chand went to
Delhi on or about February 17, 1972 and hired the two jeeps in question at the
rate of Rs. 130 per day for each jeep with effect from February 18, 1972.
Duni Chand had paid Brij Mohan Rs. 2000
towards the hire of the two jeeps and a further sum of Rs. 3500 to Puran Chand
(P.W. 5) on March 4, 1972 at Kaithal. Altogether Duni Chand spent Rs. 6240 for
the two jeeps. Both the jeeps were used in the respondent's election campaign
from February 18 to March 11, 1972 under the charge and direction of Duni
Chand.
2.The note-book, Ext. P.W.8/5, belonged to
the respondent's son Anil Kumar Gupta and the notes on Civics that this book
contains were in his handwriting. The other entries in the note-book relating
to matters concerning the election of the respondent were made partly by Duni
Chand and partly by Raghbir Chand. The note-book is not a document maintained
in the regular course of business and contains certain haphazard entries which
cannot be used for foisting liability on any one without definite and clear
proof of the genuineness and correctness of these entries. The, witnesses who
proved some of the entries in the note-book, Duni Chand and Raghbir Chand, have
both denied that the entries are genuine. However, their that the entries were
fabricated about a month after the election and in the circumstances stated by
them is not believable. The fact that the evidence of these two witnesses was
false in this regard does not necessarily prove the correctness or genuineness
of these entries. Another circumstance which makes the note-book suspect is the
fact that the numbers of the various jeeps mentioned in the note-book are
recorded therein in the same sequence in which they appear in the petitioner's
diary. She claims to have noted in her diary the numbers of the jeeps working
for the respondent several months before the note-book was made available to
her. This is difficult to explain away as coincidental.
Having found that the two jeeps had been
hired by Duni Chand to be used in the respondent's election campaign, and were
in fact so used, the question that the High Court set for itself to answer was,
whether on these findings it could be said that the first respondent incurred
or authorised the expenditure of Rs. 6240 spent on account of these two jeeps.
There was some dispute before us as to
whether the allegation of authorization could arise on the issue as framed. It
was contended on behalf of the respondent that reading issue No. 14, which is
the relevant issue, carefully in the light of the statements made in the
various sub- paragraphs of paragraph 14 of the election petition, it would
appear that it raised only the question whether the 121 respondent himself
incurred the expenditure. However, it seems to us that before the High Court
the parties proceeded on the footing that the issue covered both the
allegations and the scope of the enquiry cannot be limited at this stage.
The High Court answered the question in the
negative on the following reasons. All the witnesses deposing for the
petitioner said that the payments in respect of the jeeps were made by Duni
Chand. Of course there are entries in the note-book, Ext. P.W. 8/5, which
suggest that part of the expenditure incurred on account of the two jeeps was paid
by the respondent's brother Arjan Das, and also that some amount was taken from
the respondent himself. But the High Court found that the note-book which does
not appear to have been kept in the regular course of business was not a
reliable document in the absence of independent evidence proving the
correctness of the entries therein. The High Court was further of the view that
from the fact that the respondent used these jeeps once or twice, it did not
necessarily follow that he paid for their hire, it being well-known that
candidates at an election very often use their supporters' vehicles. There is
no evidence of the respondent incurring or any direct evidence of his
authorising the expenditure incurred for the jeeps. The respondent did not
produce his account of election expenses, his case being that the papers
containing the accounts were destroyed by him after the return of election
expenses was prepared. It was argued on behalf of the petitioner, relying on
the case of D. P. Mishra v. Kamal Narain & Anr.,(1) that from the aforesaid
fact an adverse inference should be drawn against the respondent and it must be
held that the expenditure was really incurred by the respondent himself. The
High Court pointed out that in D. P. Mishra's case the worker of the returned
candidate who was supposed to have incurred the expenditure in question in that
case was not examined, and this circumstance considered along with the fact
that the returned candidate bad not chosen to produce his accounts proved the
case against him. In the instant case, however, Duni Chand who made the
payments was examined but be denied that the respondent authorised him to make
these payments. This part of Duni Chand's evidence was accepted by the High
Court though he was not considered a straightforward witness and a substantial
part of his evidence was disbelieved. The decision in D. P. Mishra's case
(supra) indeed turns on facts somewhat different from the facts of this case.
The High Court has found that there is also no reliable circumstantial evidence
in this case to connect the respondent with the expenditure incurred by Duni
Chand.
It now seems settled that the findings of
fact recorded by the High Court should not be disturbed in an appeal under
section 116-A of the Act unless there was some serious error in these findings.
It appears from the record of this case that the learned Judge of the High
Court recorded his impression about the demeanor of the witnesses whenever he
thought necessary. The findings based solely on the demeanour of the witnesses
cannot be reversed in appeal, but (1) [1971] 1 S.C.R. 9.
122 the conclusions of fact reached upon a
consideration of the probabilities can be tested to see if they contain any
serious error. We find no reason to disturb any of the findings of fact
recorded by the High Court summarized above. These findings appear to be
justified on the evidence which we have discussed. We 'agree with the High
Court's views on the credibility of the witnesses. We also agree that the
note-book is not a reliable document in the absence of independent evidence to
prove the genuineness of the entries therein. What we have to decide is,
whether the High Court was right in its conclusion from these findings that the
first respondent did not authorise Duni Chand to spend any amount on the hiring
of the two jeeps in question.
The allegation that Duni Chand was in-charge
of the transport arrangements for the respondent if true, would be a
circumstance which, taken with other circumstances, might indicate that it was
the respondent's money that Duni Chand was authorised to spend. If the
note-book is left out of consideration, as it must be, the other evidence on
record does not appear to us to be sufficient to prove this allegation.
It is well established that a charge of
corrupt practice is quasicriminal in nature and must be proved beyond
reasonable doubt. There is no direct evidence that the respondent himself paid
for the two jeeps. The question is whether it is possible to infer from the
circumstances discussed above that Duni Chand was authorised by the respondent
to spent the said amount of Rs. 6240 for these vehicles. In the case of Samant
N. Balkrishna & Anr.'v. George Fernandez & Ors.(1) this Court held that
the circumstantial evidence led to prove corrupt practice must exclude every
hypothesis except that of guilt. What are the circumstances here from which one
could infer that Duni Chand was authorised by the respondent ? It is alleged
that Duni Chand was in-charge of the transport arrangement for the respondent's
election.
That Duni Chand worked for the respondent at
the election is proved. It has also been found that he hired the two jeeps and
used them for the respondent's election campaign. It may also be said that the
letter, Ext. P. W. 3/1, suggests that Duni Chand used to operate at times from
the respondent's election office. But from these circumstances only, would the
inference be justified that the respondent put Duni Chand incharge of his
transport arrangements ? The High Court has taken the view, which we endorse,-
that at an election people work for a candidate prompted by various motives
even if they are not employed by the candidate to work for him. The story that
Duni Chand along with six or seven other persons formed, a group to support the
respondent has been disbelieved, and rightly. But, even then, it is difficult
to say with certainly that it was the respondent who engaged Duni Chand to be
incharge of the vehicles used in his election campaign. There is no direct
evidence that the respondent put Duni Chand in funds and one hardly expects to
find such evidence in a case like this.
We have found that the note-book is not a
reliable document.
It is therefore (1) [1969] 3 S.C. R. 603 at
637.
123 not possible to rely on the entries in
the note-book which seem to suggest that a part of the money paid for the two
jeeps was taken from the respondent. The High Court did not believe that the
notebook was entirely fabricated but felt it was unwise to rely upon it. The
mystery of the note-book has not been solved, but the unsolved mystery cannot
be used as proof to bring home the charge against the respondent.
Whose money it was then that Duni Chand
spent-? It is not believable that Duni Chand spent his money, but the- only
alternative is not that it was the respondent's money which he authorised Duni
Chand to spend. It has been found that the Jan Sangh incurred some expenditure
on the respondent's election campaign in spite of the denial of Pawan Kumar
that the Party did not spend anything. We do not find it possible to accept the
statement of Punnu Ram, Joint Secretary of the Kaithal Unit of the Jan Sangh
Party, that the total amount spent by the Party on the respondent's election
was between Rs. 400 and Rs. 500. Apparently, the High 'Court also did not rely
on this part of Punnu Rams evidence. It is not necessary however to investigate
what amount exactly came from which source. It is clear that the respondent's
election campaign received financial assistance from other sources, which makes
it difficult to reach the conclusion that none but the first respondent himself
spent the amount in question. We do not know what our conclusion would have
been had the case fell to be decided on the probabilities only, but is no,.
possible to say that it has been proved beyond reasonable doubt that Duni Chand
paid for the jeeps from the money he received from the respondent and the
respondent authorised the expenditure. Counsel for the appellant said that it
would be hardly possible ever to get hold of such evidence in an election
dispute. That may be so, but this is how the law stands. We agree with the High
Court that the allegation of corrupt practice against the respondent has not
been proved beyond reasonable doubt.
The appeal is dismissed; considering all the
circumstances of the case, we make no order as to costs.
Appeal dismissed.
V.P.S.
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