Shiv Charan Singh Vs. Maharaj Kumar
Sri Brijendra Pal [1975] INSC 179 (26 August 1975)
KHANNA, HANS RAJ KHANNA, HANS RAJ
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION: 1976 AIR 785 1976 SCR (1) 416 1976
SCC (2) 928
ACT:
Election Law-Finding of fact recorded by High
Court- Supreme Court, if can interfere with appraisement of evidence.
HEADNOTE:
Representation of the People Act, 1951,
s.77-Election expenses Failure of successful candidate to maintain account in
prescribed manner, if constitutes corrupt practice.
The appellant and the respondent were the
main candidates in the election lo the Rajasthan Legislative Assembly from the
Karauli constituency. The result of the election was declared on March 12, 1972
and the respondent was declared elected. The appellant challenged the election
of the respondent on the ground that the respondent and his election agent
Jagdish Pal published and got published statements of fact in relation to the
personal character and conduct of the appellant which were false and which they
believed to be false or did not believe to be true and which statements were
reasonably calculated to prejudice the prospects of the appellant's election.
The second ground on which the election of' the respondent was assailed was
that the respondent and his election agent deliberately failed to maintain
regular and correct account I : of expenses incurred by them in connection with
the election and that they incurred or authorised expenditure in contravention
of s.77 of the Representation of the People Act, 1951. The petition was
resisted by the respondent and he denied the various allegations made by the
appellant. Five issues were framed on the basis of the pleadings before the
High Court Issues (1) and (2) were decided against the appellant. These issues
related to the first ground. The view of the findings on these issues, issue
(3) was held not to arise. Issues (4) and (5) relating to expenses were also
decided against the appellant. As a result, the election petition was
dismissed.
This appeal has been preferred by the
appellant against the judgment of the High Court dismissing his election
petition.
Dismissing the appeal,
HELD: (i) It is well established that in an
election appeal Supreme Court should not interfere with a finding of fact recorded
by the High Court based upon the appraisement of evidence unless such finding
is vitiated by some glaring infirmity. [420F] F (ii) Even if the account of
election expenses was not maintained in the prescribed manner, that fact would
not constitute a corrupt practice. [419G] (iii) The High Court has considered
the evidence brought on record and has held on appraisement of that evidence
that there was no cogent material to show that the respondent had incurred any
expenditure over and above what had been shown in his return. No cogent ground
whatsoever has been made out lo interfere with the appraisement of the evidence
by the High Court. [419H-420 A] G (iv) The correctness of the figure of Rs.
3,523.27 as expenses incurred for the purchase of petrol is vouchsafed by the
statement of account filed by Karauli Auto Stores a family concern of the
respondent. Nothing has been shown as to why the statement of account field by
that concern cannot be accepted. During the pendency of the trial on
application filed by the appellant. the High Court directed that the account
books maintained by the respondent as well as the cash book and the credit and
cash vouchers of Karauli Auto Stores might be shown to the appellant's counsel.
In spite of that order the appellant or his counsel did not examine those
account books and documents. Nothing was consequently brought on record to
question the correctness of the entries in the account books. [420B-C] 417 (V)
The High Court declined to accept the oral evidence adduced by the appellant in
support of his plea that the account does not correctly show the expenses
regarding certain number of vehicles engaged by him. The evidence adduced by
the appellant was not only not supported by any documents, it ran counter to
the documents which were produced by the respondent and some of which had been
signed by the witnesses produced by the appellant. [420EF] (vi) The plea of the
respondent that he was charged only Rs. 35/- as daily hiring charge for the
truck because he presented the requiring of those trucks by making a
representation that they were needed for his election compaign, has been
accepted by the High Court as plausible.
There is nothing cogent made out as to why a
contrary view should be taken. [420H] (vii) So far as the impugned issues of
Hindi daily Kronch and pamphlet Ex.2 are concerned, there is no cogent evidence
to show on the record that Radhey Shyam Sharma published those issues and the
pamphlet at the instance of or with the consent of the respondent or his
election agent.
It is indeed evident from the use of Kronch
dated October 15, 1970 that Radhey Shyam Sharma was hostile to the appellant
and had been criticising him since 1970 about 14 months before the election.
There is, therefore, nothing to rule out the possibility that Radhey Shyam
Sharma published the impugned issues and pamphlet at his own and without the
consent of the responaent or his election agent. [421AB]
CIVIL APPELLATE JURISDICTION: civil Appeal
No. 767 of 1973.
From the Judgment and order date the 9th
March, 1973 of the Rajasthan High Court at Jodhpur in Election Petition No.
10 of 1972.
D. P. Singh, Subhagmal Jain and R. K. Jain,
for the Appellant.
A. K Sen, Yogeshwar Prasad, S. K. Bagga, Mrs.
S. Bagga and Miss Yash Bagga, for the Respondent The Judgement of the Court was
delivered by KHANNA, J.-This is an appeal by Shiv Charan Singh against the
judgment of the Rajasthan High Court whereby election petition filed by the
appellant to question the election of Brijendra Pal respondent from the Karauli
constituency to the Rajasthan Assembly was dismissed.
The appellant and the respondent were the
main candidates in the election to the Rajasthan Legislative Assembly from the
Karauli constituency. The result of the election was declared on March 12, 1972
and the respondent was declared elected. The appellant challenged the election
of the respondent on the ground that the respondent and his election agent
Jagdish Pal published and got published statements of fact in relation to the
personal character and conduct of the appellant which were false and which they
believed to be false or did not believe to be true and which statements were
reasonably calculated to prejudice the prospects of the appellant's election.
The second ground on which the election of the respondent was assailed was that
the respondent and his election agent deliberately failed to maintain regular
and correct account of expresses incurred by them in connection with the
election and that they incurred or authorised expenditure in contraction of
section 77 of the Representation of the People Act, 1951. As regards the first
ground, it was stated that the respondent and his election agent got published
news item Ex. I in "Kronch",a Hindi 418 weekly dated February 25,
1972 published and printed in Jaipur Radhey Shyam Sharma was the editor of that
weekly.
The aforesaid news item was stated to contain
false defamatory statements of fact in relation to the personal character and
conduct of the appellant. It was added that the respondent and his election
agent and Radhey Shyam Sharma believed those statements, which were calculated
to prejudice the prospects of the appellant's election, to be false and did not
believe them to be true. Radhey Shyam Sharma was also stated to have addressed
an election meeting of the respondent on February 27, 1972 at Chogan in Karauli
city and read out news item Ex. 1. Copies of the aforesaid issue of Kronch were
also stated to have been distributed in that meeting in the presence of the
respondent and his election agent. According further to the appellant, Radhey
Shyam Sharma got published pamphlet Ex. 2 printed at the instance of and with
the consent of the respondent and his election agent. This pamphlet was also as
objectionable as news item Ex. 1. The pamphlet was stated to have been
distributed by the respondent, his election agent and Radhey Shyam Sharma at an
election meeting at Bhudara on March 2, 1972. Radhey Shyam Sharma was further
alleged to have published another issue Ex. 3 of Kronch containing defamatory
statements of fact against the appellant. These statements were also stated to
be objectionable in the same manner as those contained in news item Ex. 1. As
regards the election expresses, it was stated. the respondent had not shown the
expanses actually incurred by him in the matter of hiring of vehicles, purchase
of petrol, arrangement of a procession and employment and entertainment of his
workers.
The respondent, it was claimed had incurred
an expense to the extent of at least Rs. 35,000 over and above the amount shown
by him in the return of election expenses.
The petition was resisted by the respondent
and he denied the various allegations made by the appellant.
According to the respondent, Radhey Shyam
Sharma was hostile to the appellant and had as long ago as October 15, 1970
bitterly criticised the activities of the appellant in an issue of Kronch. The
respondent denied that he had anything to do with the publication by Radhey
Shyam Sharma of the different issues of Kronch and pamphlet . It was also
denied that the issues of Kronch or the pamphlet in question were distributed
in the meetings of the respondent. The allegation that the issues of Kronch and
the pamphlet in question contained statements of fact which were false and
which the respondent believed to be false or did not believe to be true and
that those statements were calculated to prejudice the prospect of the
appellant's election was likewise denied. According to the respondent, the
allegations contained in the impugned issues of Kronch and the pamphlet had
earlier been made m some other papers and on the floor of the Rajasthan
Legislative Assembly. They had also been made by one Babulal Sharma, Convenor
of Yuvak Congress Mandal, Karauli. As regards the election expenses, the respondent
stated that he had maintained a proper and correct statement of account and had
not incurred any expenditure over and above the amount of Rs. 8,665.69 shown in
his return.
419 in the election petition ? "1. Did
the respondent and his election agent Mr. Jagdish Pal publish the statement of
fact in relation to the personal character or conduct of the petitioner as
alleged in paragraphs 14? 16, 18, 19 and 20 of the petition ?
2. Was Mr. Radhey Shyam Sharma engaged by the
respondent to carry on his propaganda and was he in charge of the respondent's
publicity and did he publish the news item in 'Kronch' and read them out and
the petition ? distribute the news items and the pamphlet as stated 3. (a) Were
the statements referred to in issue No.
1 false, and did the respondent or his
election agent or Mr. Radhey Shyam Sharma believe them to be false. Or did not
believe them to be true? (b) Were those statements reasonably calculated to
prejudice the prospects of the petitioner's election ?
4. Have the respondent and his election agent
deliberately failed to maintain a regular and correct return of the expenses
incurred by them in connection with the election of the respondent ?
5. Have the respondent and his election agent
incurred or authorised expenditure in contravention of section 77 of the
Representation of the People Act, 1951, as alleged in the election petition
?" issues (1) and (2) were decided against the appellant. The view of the
findings on issue Nos. 1 and 2, issue No. 3 was held not to arise. All the same
the High Court was into the matter and held that neither the respondent or his
'election agent nor Radhey Shyam Sharma had reason to believe the impugned
statements published in Kronch and the pamphlet in question to be false and not
to be true. Issues (4) and (5) too were decided against the appellant. In the
result the election petition was dismissed At the hearing of the appeal Mr. D.
P. Singh on behalf of the appellant has assailed the findings of the High Court
on the different issues. As regards the election expenses, it has been conceded
by Mr. Singh that even if they were not maintained in the prescribed manner,
that fact would not constitute a corrupt practice. According however to the
learned counsel, that fact taken with other evidence might justify a conclusion
that the respondent had suppressed some items of expenditure. So far as this
question is concerned, we find that the High Court has considered the evidence
brought on record 420 and has held on appraisement of that evidence that there
was no cogent material to show that the respondent had incurred any expenditure
over and above what had been shown in his return. After having been taken
through the material on record, we find no cogent ground whatsoever to
interfere with the appraisement of the evidence by the High Court.
Reference was made to the expenses for the
purchase of petrol. According to return Ex. 6 filed by the respondent, he spent
Rs. 3,253.27 on petrol. The correctness of that above figure is vouchsafed by
the statement of accounts filed by Karauli Auto Stores The petrol pump which
supplied petrol for the respondent belonged to that concern. Although the said
concern was a family concern of the respondent, nothing has been brought to our
notice as to why the statement of account filed by that concern be not
accepted.
During the pendency of the trial on
application filed by the appellants the High Court directed that the account
books maintained by the respondent as well as the account books, cash book and
the credit and cash vouchers of Karauli Auto Stores might be shown to the
appellant's counsel. In spite of that order the appellant or his counsel could
not examine those account books and documents. Nothing was consequently brought
on record to question the correctness of the entries in the account books.
It has also been urged that the appellant
engaged certain vehicles is for a number of days but the expenses incurred on
that account were not correctly shown. As against that, the case of the
respondent is that only those vehicles were hired by him which were shown in
the documents filed by him. According further to him, the number of days for
which those vehicles were hired was also correctly shown. The appellant
produced oral evidence of a couple of witnesses in support of the stand taken
by him. The High Court declined to accept that evidence. After hearing the
learned counsel for the appellant, we are not inclined to take a contrary view.
The evidence adduced by the appellant was not only not supported by any documents
it ran counter to the documents which were produced by the respondent and some
of which had been signed by the witnesses produced by the appellant It is well
established that in an election appeal this Court should not interfere with a
finding of fact recorded by the High Court based upon the appraisement of
evidence unless such finding is vitiated by some glaring infirmity. No such
infirmity has been brought to our notice.
Mr. Singh has then submitted that the daily
hiring charges of a truck was about Rs. 100 but the respondent in his return
showed the daily hiring charge for the truck to be Rs. 35. The case of the
respondent in that respect is that the was charged Rs. 35 as daily hiring
charges because he prevented the requisitioning of those trucks by making a
representation that they were needed for his election campaign. Evidence was
also produced in support of the above stand of the respondent. The High Court
found the above explanation of the respondent to be plausible. Nothing cogent
has been brought to our notice as to why we should take a contrary view. The
fact that there are suspicious 421 features in the respondent's case about his
election expenses would not justify interference with the finding of the High
Court because suspicion cannot take the place of proof.
Coming to the question of the impugned issues
of Kronch and pamphlet Ex. 2, we find that there is no cogent evidence on the
record to show that Radhey Shyam Sharma published those issues and the pamphlet
at the instance of or with the consent of the respondent or his election agent.
It is indeed evident from the issue of Kronch dated October 15, 1970 that
Radhey Shyam Sharma was hostile to the appellant and had been criticising him
since 1970, about 14 months before the election. There is, therefore, nothing
to rule out the possibility, as stated by the respondent, that Radhey Shyam
Sharma published the impugned issues and pamphlet at his own and without the
consent of the respondent or his election agent.
The allegation that the impugned issues of
Kronch and the pamphlet were distributed in the election meetings of the
respondent remains unsubstantiated. The appellant got produced reports Ex. 15
and 16 of the two election meetings of the respondent held on February 27, 1972
and March 2, 1972. According to these reports, Radhey Shyam journalist
addressed those meetings and asked those present to vote for the respondent.
There is no mention in these reports of Radhey Shyam having said anything
against the appellant.
There is also no reference to the
distribution of any pamphlets or issues of Kronch in those meetings. Our
attention has been invited by the learned counsel for the appellant to the
statement of Nurul Hasan constable (PW 4), according to whom some documents
were distributed in a meeting held on March 2, 1972. The witness added that he
did not know as to what were the contents of those documents because he saw the
whole thing from a distance. The evidence of Nurul Hasan, in our opinion, is
too slender a basis for recording a finding that the impugned pamphlet and
issues of Kronch were distributed in the meeting of the respondent. It is in
the evidence of Sub-Inspector Bhopal Ram (PW 18) that if any newspaper is
distributed in an election meeting and a copy of it becomes easily available to
the constable present in that meeting, he sends it along with his report. The
witness also produced some pamphlets which were distributed in an election
meeting against the respondent. If as is the case of the appellant, the
impugned issues of Kronch and pamphlet in question were widely distributed in
the election meetings of the respondent, it is not clear as to why the
policeman on duty in those meetings could not secure even one copy of those
issues or pamphlets. The fact that no such copy was sent with any of the police
reports shows that the allegation of the appellant in this respect is not well-
founded.
422 In view of our finding that it is not
proved that Radhey Shyam got published the impugned issues of Kronch and
pamphlet at the instance of or with the consent of the respondent or his
Section agent and in view of our further finding that it is not proved that the
copies of the impugned issues of Kronch or pamphlet were distributed in the
election meetings of the respondent, we need not go into the question as to
whether the finding of the High Court on issue No. 4 is correct or not. We
consequently neither affirm nor disaffirm the finding of fact or law under this
issue.
The appeal fails and is dismissed but in the
circumstances without costs.
V.M.K. Appeal dismissed.
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