Brij Mohan Vs. Mange Ram & Ors [1985] INSC 56 (13 March 1985)

VARADARAJAN, A. (J) VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA

CITATION: 1985 AIR 887 1985 SCR (3) 312 1985 SCC (2) 425 1985 SCALE (1)440

ACT:

Representation of the Peoples Act, ]951, Section 123 (1) -Corrupt Practice of bribery-Allegation of giving donation to a temple after inducing voters to cast votes in his favour-Inconsistency between the allegation in the election petition and evidence of witnesses- Whether Corrupt Practice is proved-Held, "No".

HEADNOTE:

In the election held on 19.5.1982 to the Haryana Legislative Assembly from the Jind Constituency, the appellant was declared elected over his nearest rival respondent No. I with a margin of 146 votes. Respondent No. I challenged the appellant's election inter alia, on the ground that the appellant and his father Sita Ram and two others Ram Kishan and Amrit Lal visited Kandela village on or about 16.5.1982 and contacted Dalip Singh, Sarpanch of the village and one Dewan Singh, Secretary of the Backward Classes. Thereafter all of them went to the house of one Dharam Singh where backward class voters including Dewan Singh, Hari Ram, Devi Ram, Fateh Singh and Mauji Ram had assembled. The voters told the appellant that they intended to cast their votes in favour of Congress (I) candidate as they had always been in favour of the Congress (I) party- Then the appellant had a talk with the Sarpanch Dalip Singh and one Dharam Singh and subsequently stated, for inducing the voters to cast their vote in his favour, that he is prepared to give a donation of Rs. 5100 as he had been told that they needed some money for their mandir. Accordingly he gave a sum of Rs. 5100 to the Sarpanch Dalip Singh who passed it on to Dharam Singh and Dewan Singh. The voters thereafter assured the appellant that they would vote for him and ensure that every vote belonging to their class will go in his favour. Thus, the appellant was alleged to have committed the corrupt practice of bribery as defined in Section 123(1) of the Representation of People Act, 1951.

The appellant had denied that he had gone to Kandela village on 16.5.1982 either alone or in the company of Sita Ram and others. He also denied that he had contacted the Sarpanch Dalip Singh and others and gave Rs. 5100 as alleged in the election petition and that the voters of Kandela village held out any promise for casting their votes in his favour.

The High Court held that the appellant had committed that corrupt practice of bribery and set aside the election as void.

313 Allowing the appeal by the appellant, A ^

HELD: 1. As regards the corrupt practice of bribery, there is evidence only of P.Ws. 1, 16, 90, 91 and 92 which is wholly unreliable and does not prove the corrupt practice of which the appellant has been found guilty by the Learned Single Judge. [320B] 2(i) The first respondent P.W. 1 has stated in his cross-examination that the bribe money was paid by the appellant on 15.5.1982. It would appear from his evidence that he claims to have personal knowledge about the alleged visit of the appellant and others to Kandela village on 16.5.1982 and about the alleged payment of Rs. 5100 by the appellant for the construction of a temple for the backward class people of the village in order to induce the voters of those classes to cast their votes in his favour. But in his affidavit verifying the election petition he has stated that the allegations made in para 9(d) of the election petition regarding this item of corrupt practice are based upon information received by him from Dewan Singh. Therefore the evidence of P.W. 1 is wholly unacceptable. [317C-D] 2(ii) The evidence of P.W. 16 that on 15.5.82 the appellant offered to give a sum of Rs. 5100 in the house of Dewan Chand and that it was given by one Madan Lal to Dharam Chand is inconsistent with the allegation in the election petition that the appellant offered to give Rs. 5100 on 16.5.1982 as donation and gave it himself to the Sarpanch Dalip Singh and he passed it on to Dharama Singh. Therefore the evidence of P.W. 16 also cannot be accepted. [317H; 318A] 2(iii) The evidence of P.W. 90 is that the people asked for money to vote in favour of the appellant and that thereupon he gave Rs. 5100 to Dharma Lohar on 16.5.82 is contrary to the allegation in the election petition, There is thus a vital discrepancy between the pleading in the election petition and the evidence of P.W. 90. Moreover P.W. 90 has stated that he does not know whether any receipt was passed for the amount whereas P.W. 16 has stated in his evidence that Madan Lal gave Rs. 5100 to the temple Committee's President Dharam Singh in his presence on 16.5.1982 and he made an entry for receipt of that amount in Ex. P.W. 16/2 in the cash-book. In these circumstances no reliance could be placed on the evidence of P.W. 90.

[319D; F-G] 2(iv) The evidence of P.W, 91 is also not consistent with the allegation made in the election petition that the appellant gave a sum of Rs. 5100 to the Sarpanch Dalip Singh and that he passed in on to Dharam Singh and Dewan Singh.

Therefore no reliance can be placed on his evidence also.

[319D] 2(v) The evidence of P.W. 92 that Madan Lal of Kandela village gave Rs. 5100 is inconsistent with the allegation made in the election petition that the appellant himself gave that amount. His evidence that it was given to Dalip Singh though consistent with the allegation made in the election petition and the evidence of P.W, 91, is inconsistent with the evidence of P.W. 90 that it was given to Dharma Lohar. [319G-H] 314

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2649 of 1984.

Appeal U/s 116A of the R.P. Act 1951 from the Judgment and Order dated 30.5.1984 of the Punjab & Haryana High Court at Chandigarh in E.P. No. 8 of 1982.

H.L. Sibal, Kapil Sibal, Mrs. Madhu Tewatia Singh and N.M. Popli for the Appellant.

S.N. Kacker and Ravinder Bana for the Respondents.

The Judgment of the Court was delivered. by VARADARAJAN, J. This appeal by the first respondent in Election Petition No. 8 of 1982 on the file of the Punjab and Haryana High Court is filed against the judgment of the learned Single Judge, allowing the election petition and setting aside the appellant's election to the Haryana Legislative Assembly from the Jind constituency in the election held on 19-5-1982. Out of 26 nomination papers filed, 24 were found to be valid and ultimately 14 candidates remained in the field. The real contest was between the appellant Brij Mohan, who was an independent candidate supported by the Lok Dal and the first respondent Manga Ram who contested as the Congress (I) candidate. In the counting which took place on 20-5-1982 it was found that the appellant had secured 27045 valid votes while the first respondent had secured 26899 valid votes and the appellant was accordingly declared elected.

The first respondent filed the election petition challenging the p appellant's election on the following grounds, namely: (I) corrupt practice of bribery as defined in s. 123(1) of the Representation of People Act, 1951; (2) corrupt practice of publication of various statements relating to the personal character of the first respondent which were false; (3) result of the election in so far as it related to the appellant having been materially affected by en masse violation of the statutory provisions and (4) large scale receiption of void votes in favour of the appellant but for which the first respondent would have been declared elected. The first respondent prayed in the election petition for (I) the appellant's election being set aside as void on the above grounds; (2) the appellant being declared to have committed corrupt practice and (3) the first respondent being declared to have been duly elected, 315 The learned Single Judge who tried the election petition allowed it with costs on only one ground and set aside the appellant's election as void on that ground, namely, that he committed the corrupt practice of bribery by contributing a sum of Rs. 5100/towards the cost of construction of a temple for the backward classes in Kandela village in order to get the votes of the members of those classes cast in his favour in that election. It is, therefore, necessary to state the case of the parties briefly in regard to only this item of corrupt practice.

The first respondent has alleged in the election petition that the appellant visited Kandela village on or about 16-5-1982 accompanied by his father Sita Ram and two others Ram Kishan and Amrit Lal and they contacted Dalip Singh, Sarpanch of the village and one Dewan Singh, Secretary of the backward classes. The appellant appealed to the backward class voters assembled at the house of one Dharam Singh for casting their votes in his favour. The voters present there included Dewan Singh, Hari Ram, Devi Ram, Fateh Singh and Mauji Ram. The voters told the appellant that they intended to cast their votes in favour of the Congress (I) candidate as they had always been in favour of the Congress (I) party. The appellant, thereafter, had a talk with the Sarpanch Dalip Singh and one Dharam Singh and subsequently stated, for inducing the voters to cast their vote in his favour, that he was prepared to give a donation of Rs. 5100 as he had been told that they needed some money for their mandir. Accordingly, he gave a sum of Rs. 5100 to the Sarpanch Dalip Singh who passed it on to Dharam Singh and Dewan Singh. The voters thereafter assured the appellant that they would vote for him and ensure that every vote belonging to their class will go in his favour.

The appellant denied this allegation saying that he never visited Kandela village in the company of Sita Ram, Ram Kishan and Amrit Lal and never gave Rs. 5100 to the Sarpanch Dalip Singh and that the entire allegation in the election petition regarding this item of corrupt practice is false and mischievous.

In regard to this item of corrupt practice there is evidence of the election petitioner/first respondent Mange Ram, P.W. 1, Dewan Singh, P.W, 16, Manuji Ram, P.W. 90, Fateh Singh, P.W. 91 and Prahlad, P.W. 92 on the side of the first respondent and of the appellant, R.W. 1 on the side of the appellant. The learned Single 316 Judge found that after a Commissioner appointed by the Court contacted P.W. 16 and obtained a register from him. P.W. 16 was suspended by the District Education Officer, Jind by an order dated 23-11-1982 and transferred to Narnaul situate 200 miles away from his original place which was his home town and he opined that it was done in order to overawe P.W.

16 so that he may not appear as a witness in this election petition. He further observed that "It was in his (appellant's) interest to see that this witness did not come on record. If illegal pressure was brought to bear on a witness who had come to this Court to depose about this charge, normal inference and presumption would be that the pressure had been brought to bear upon him either by the party who was interested in seeing that damaging evidence was not led against him or by some one else at his instance.

I am clearly of the view that respondent No. I had somehow or other secured that order of suspension and transfer of Dewan Singh, P.W. 16". We are wholly unable to appreciate this reasoning of the learned Judge. We do not see how the appellant was obliged to explain the circumstances under which P.W. 16 came to be suspended and transferred to Narnaul by the District Educational Officer's order dated 23-11-1982 after the Commissioner appointed by the Court approached him and obtained a register from him or how the adverse inference could be drawn against the appellant by the learned Judge merely because the appellant was unable to explain how P.W. 16 came to be suspended and transferred by the District Educational Officer's order dated 23-11-1982 after a register had been obtained from him by the Commissioner appointed by the Court and it came to be known that p.W. 16 may be examined as a witness in this election petition, We think that there is no justification whatsoever to draw any such adverse inference against the appellant.

The appellant, R.W. 1 had denied that he had gone to Kandela village on 16-5-1982 either alone or in the company of Sita Ram and others. He has denied that he contacted the Sarpanch Dalip Singh and others and gave Rs 5100 as alleged in the election petition and that the voters of Kandela village held out any promise for casting their votes in his favour. In the cross-examination on suggestion was made to R.W. 1 that he gave a sum of Rs. 5100 for the construction of a mandir for the backward class voters of Kandela village on 16-5-1982 or on any other date, to induce them to cast their votes in his favour, 317 The first respondent. P. W. l has stated in his evidence that the appellant visited Kandela village on 16.

5. 1982 accompanied by the Sarpanch Dalip Singh, Hari Ram, Dewan Singh and others, that all of them and the members of the backward classes assembled in the house of the Backward Classes Samiti Chairman Dharam Singh, that the appellant gave Rs. 5100 to the members of the backward classes for the construction of a Viswakaram Mandir in the village and the Society passed a receipt for that amount and also made an entry in its own books of accounts kept in the regular course of business and that the members of the backward classes who received the amount promised to cast their votes in favour of the appellant. In his cross examination he has stated that the bribe money was paid by the appellant on 15.5.1982. It would appear from his evidence that he claims to have personal knowledge about the alleged visit of the appellant and others to Kandela village on 16.5.1982 and about the alleged payment of Rs. 5100 by the appellant for the construction of a temple for the backward classes people of the village in order to induce the voters of those classes to cast their votes in his favour. But in his affidavit verifying the election petition he has stated that the allegations made in para 9(d) of the election petition regarding this item of corrupt practice are based upon information received by him from Dewan Singh. Therefore, the evidence of P.W. I regarding this item of alleged corrupt practice is wholly unacceptable.

Dewan Singh, P.W. 16 has stated in his evidence that he is the Secretary of the Managing Committee of a temple that was being constructed in Kandela village for the members of the backward, classes, that the appellant attended a meeting of the backward classes in Dewan Chand's house on 15-5-1982, and volunteered to give a donation of Rs. 5100 for that temple provided the members of the backward classes cast their votes in his favour and that on 16.5.1982 one Madan Lal gave Rs. 5100 to the Temple Committee's President Dharam Singh in his presence and he himself made the entry Ex. PW- 16/2 about that payment in the Temple Committee's cashbook, Ex. P.W. 16/1. He has admitted that the entire cash book, Ex. P.W. 16/1 is in his hand writing and does not bear the signature of any office-bearer of the Viswakarama Samiti.

But he has denied that he has got up this cash-book in connivance with the first respondent for the purpose of this election petition. His evidence that the appellant offered on 15.5.1982 to give a sum of Rs. 5100 in the house of Dewan Chand and that it was given by one Madan Lal to Dharam Chand is inconsistent with the allegation in the election petition 318 that the appellant offered to give Rs. 5100 on 16.5.1982 as donation and gave it himself to the Sarpanch Dalip Singh and he passed it on to Dharama Singh. Therefore, the evidence of P.W. 16 regarding this item of alleged corrupt practice cannot be accepted.

Mauji Ram, P,W. 90 has stated in his evidence that the appellant and his father and Sarpanch Dalip Singh collected the people belonging to black-smith and carpenter communities in the house of the carpenter Diwana on 14.5.1982 and requested the people to cast their votes in his favour, that the people told the appellant and his two companions that they would inform that after discussing about the matter and asked the appellant and his companions to visit the village again on 16.5.1982, that accordingly the appellant and others came to the village on 16 5.1982 and asked the people to vote for the appellant, that the people told the appellant and his companions that they would vote for him if he gave money and that the appellant thereupon gave a sum of Rs 5100 to Dharma Lohar. The evidence of this witness is that the people asked for money to vote in favour of the appellant and that thereupon he gave Rs. 5100 to Dharma Lohar whereas the allegation in the election petition is that after the voters told the appellant that they intended to vote for the Congress (I) candidate as they had always been in favour of the Congress (I) Party the appellant had a talk with the Sarpanch Dalip Singh and one Dharam Singh and he subsequently stated, for inducing the voters to cast their votes in his favour, that he was prepared to give a donation of Rs. 5100 as he had been told that they needed some money for their mandir and that he accordingly gave Rs. 5100 to the Sarpanch Dalip Singh and he passed it to Dharam Singh and Dewan Singh There is thus a vital discrepancy between the pleading in the election petition and the evidence of P.W. 90. P.W. 90 has stated that he does not know whether any receipt was passed for the amount whereas P.W. 16 has stated in his evidence that Madan Lal gave Rs 51()0 to the Temple Committee's President Dharam Singh in his presence on 16 5 1982 and he made an entry for receipt of that amount in Ex. PW. 16/2 in the cash-book, Ex. P.W. 16/1 and P.W. ` I has stated in his evidence that the Society passed a receipt for the amount and also made an entry in the cash-book about the money. It is significant to note that P.W. 90 was not cited as a witness in the list of witnesses filed by the first respondent on 11.11.1982 and 26.11.1982 and that he was examined as a witness only on 25.7.1983. In these circumstances, we think that no reliance would be placed on the evidence of P.W. 90 regarding this item of alleged corrupt practice.

319 Fateh Singh, P.W. 91 is yet another witness whose name was not mentioned in the list of witnesses filed by the first respondent on 11.11.1982. He has stated in his evidence that four or five days prior to the date of poll

19.5 1982, the appellant and his father and two others, Sarpanch Dalip Singh and Madan Lal, visited Kandela village and come to the house of Diwana Khati, that many voters belonging to the backward classes were summoned to that house and the appellant and his companions offered to donate some money to the temple provided the people assembled there and other members of the community voted for the appellant and they told them that they would discuss about the matter and let them know, that two or three days thereafter the appellant came by a car they assembled in the house of the black-smith Dharama and that in his presence Madan Lal who came with the appellant gave Rs. 5100 to the Sarpanch Dalip Singh who in turn passed it on to Dharma Lohar and he promised that the members of his community would vote for the appellant. The evidence of this witness is not consistent with the allegation made in the election petition that the appellant gave a sum of Rs 5100 to the Sarpanch Dalip Singh and that he passed it on Dharam Singh and Dewan Singh. We are, therefore, unable to place any reliance on his evidence regarding this item of alleged corrupt practice.

Then there remains the evidence of Prahalad, P.W. 92.

He has stated that the appellant, came to Kandela village on 16.5.1982 alongwith the Sarpanch Dalip Singh and one Madan Lal of that village, that the appellant who had visited the village five days prior to the date of the poll suggested that the voters belonging to the community and the members of the Managing Committee should vote for him and stated that he would make some contribution for the temple funds and asked Madan Lal to give the money, that thereupon Madan Lal gave Rs. 5100 to the Sarpanch Dalip Singh and he passed it on to Dharma Lohar and undertook the responsibility to have votes cast in favour of the appellant and that the temple treasurer Ram Singh passed a receipt for the amount.

The evidence of this witness that Madan Lal of Kandela village gave Rs. 5100 is inconsistent with the allegation made in the election petition that the appellant himself gave that amount. His evidence that it was given to Dalip Singh though consistent with the allegation made in the election petition and the evidence of P.W. 91 is inconsistent with the evidence of P.W. 90 that it was given to Dharma Lohar. We 320 are, therefore, unable to place any reliance on his evidence regarding this item of alleged corrupt practice.

The evidence of P.Ws. 1, 16, 90, 91, and 92 referred to above is wholly unreliable and does not prove the corrupt practice of which the appellant has been found guilty by the learned Single Judge. We may state here that Mr. S.N.

Kacker, Senior Advocate who appeared for the respondent, probably felt that the Judgment of the learned Single judge holding the appellant guilty of this item of corrupt practice is wholly indefensible and he candidly admitted that he will not advance any argument at all in favour of the first respondent. In these circumstances for the reasons mentioned above, we allow this appeal but without costs and set aside the judgment of this learned Single Judge who found the appellant guilty of this item of corrupt practice.

M.L.A. Appeal allowed.

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