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PETITIONER: GAJANAN KRISHNAJI BAPAT & ANR.

       Vs.

RESPONDENT: DATTAJI RAGHOBAJI MEGHE & ORS.

DATE OF JUDGMENT18/07/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) MUKHERJEE M.K. (J)

CITATION:  1995 AIR 2284            1995 SCC  (5) 347  JT 1995 (5)   410        1995 SCALE  (4)469

ACT:

HEADNOTE:

JUDGMENT:                         J U D G E M E N T DR. ANAND. J.      This appeal  under Section  116-A of the Representation of People Act 1951  (hereinafter referred to as the Act). by two electors is directed against the judgment and order of a learned Single  Judge of  the Nagpur Bench of the High Court of Judicature  at Bombay  dismissing the  election petition. The  returned  candidate  has  also  filed  cross-objections challenging those findings which have gone against him. Both shall be disposed of by this common judgment.      The appellants filed an election petition under Section 80 of  the Act  challenging the election of respondent No.1, Dattaji Raghobaji  Meghe, the  returned  candidate  from  23 Nagpur Parliamentary  Constituency in the elections held for the Xth  Lok Sabha  and also  sought a  declaration  to  the effect  that  respondent  No.2  Shri  Banwarilal  Bhagwandas Purohit be  declared as  the duly elected candidate from the said Constituency  after setting  aside the  election of the returned  candidate.   The  challenge  to  the  election  of respondent No.1  was mainly  based  on  the  allegations  of commission of  various corrupt  practices by  him and/or his election agent detailed in the petition.      Appellant No.1  was  at  the  relevant  time  the  Vice President of Bhartiya Janta Party (Nagpur City) Nagpur while appellant No.2  was a  worker of  the Bhartiya  Janta Party. Respondent No.2,  Shri Banwarilal  Bhagwandas  Purohit,  the defeated candidate  had been sponsored as a candidate by the Bhartiya Janta  Party while  respondent No.1 Datta Raghobaji Meghe,  the   returned  candidate,  had  been  sponsored  by Congress  (I).  Besides  respondents  1  and  2,  the  other candidates, who  had contested  the  election  and  had  not withdrawn their  candidatures from  the  contest,  numbering more than  forty two  were also joined as respondents to the election petition.      The main  case of  the appellants  projected before the

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High Court  and canvassed  before us  against  the  returned candidate was that the expenditure incurred or authorised by respondent No.1  or his  election agent  was much  more than what had  been disclosed by him in the return of expenditure lodged under  Section  78  of  the  Act  with  the  District Election officer  and that  huge expenditure incurred by him in connection  with his election had been suppressed. It was further alleged  that though  the  expenditure  incurred  in connection with the election of respondent No.1 was shown to have been  incurred  by  the  political  party,  some  other sympathetic   associations,    organisations,   individuals, friends and  well-wishers, the  said expenditure in fact had been incurred  and/or authorised  by respondent  No.1 and/or his  election   agent  and   the  amount   spent  by   those organisations had  been  provided  out  of  the  funds  made available by respondent No.1 to those parties for making the payment and their names were given only to conceal the truth of the  transactions so  as to  escape from  the mischief of Section 123  (6) of the Act. It was pleaded that some of the organisations  under  whose  names  the  advertisements  had appeared, were in fact non-existent and that the individuals who were  shown ostensibly to have incurred some expenditure for  furtherance   of  the  prospects  of  the  election  of respondent No.1, had actually no funds of their own to spend and respondent  No.1 had placed his own funds in their hands to meet  the expenditure.  According to  the appellants, the expenditure incurred by respondent No.1 was far in excess of the limit prescribed by Section 77 of the Act read with Rule 90 of  the Conduct  of Election  Rules 1961 (hereinafter the Rules’) and  the return  of  election  expenditure  did  not reflect the  correct state of affairs. Since respondent No.1 had exceeded  the prescribed limit of expense, he was guilty of committing  the corrupt practice under Section 123 (6) of the Act  and  his  election  was,  therfore,  liable  to  be declared void  and respondent  No.1  also  disqualified  for committing the corrupt practice.      Respondent No.1  before filing  his  written  statement raised a  preliminary objection, through Ex.16 and Ex.17, to the effect  that the  allegations made  in the petition were vague and  that material  facts and particulars had not been supplied and  as such  the vague pleadings were liable to be struck off  and the election petition rejected under Section 81(3) read  with Section  86  of  the  Act.  On  29.10.1991, however, Ex.16  was rejected  while  application  Ex.17  was allowed to  the extent  that the  allegations  made  in  the petition regarding  the commission of corrupt practice under Section 123(2)  and (3A)  were found  to be  vague and  non- specific and  the pleadings in that connection were directed to be  struck off.  Against the  order of  rejection of  the preliminary objection  raised in  Ex,  16,  respondent  No.1 preferred a  special leave  petition being  SLP(c) No.19165- 66/91 in  this Court  which was  dismissed on  20th December 1991 by the following order :      "The    special    leave  petitionis   -      dismissed. However,this order  will  not      prevent him  from   raising  objections,      which are  available   to  him according      to  law,  when  the  evidence  is   made      on  the relevant allegations."      Subsequently, an  application, Ex.  27,  filed  by  the appellants for  leave to  amend the  election  petition  for correcting certain inadvertant "errors, omissions and slips" was allowed on 28.11.1991 and the necessary corrections were carried out  in the  election petition. Again an application Ex. 47/A  filed by  the appellants seeking further amendment

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of the  verification clause  of the  petition was allowed by the Court  on 18.01.1992,  after an earlier application, Ex. 44,  filed  by  the  appellants  seeking  amendment  of  the election petition had been allowed on 18.12.1991.      A detailed  written statement  was thereafter  filed by respondent No.1 in which the charges levelled against him in the election  petition were  vehemently  denied.  Respondent No.1, in  respect of  certain items  of expenditure,  took a specific stand  that  the  expenditure  on  those  items  as detailed by  the appellants  in the  election petition, were incurred by  Nagpur City  District Congress  Committees  and Nagpur Gramin  Congress Committee and not by him. Similarly, in respect  of some  other items  of expenditure, respondent No.1 took  the plea that the expenditure in respect of those items was  incurred by  certain organisations, associations, individuals, friends and well-wishers, without any authority or consent  of respondent  No.1 or  his election  agent  and completely on their own volitions. In the written statement, the names  of some  of the  organisations and individuals as well as  the associations of persons and the political party who  had   incurred  the   expenditure  were   furnished  by respondent No.1.  It was  maintained by respondent No.1 that he  had   not  incurred  any  expenditure  besides  the  one reflected in  the return  of election  expense and  had  not committed any  corrupt practice.  After the  amendments were carried out  by  the  appellants,  the  returned  candidate, Respondent No.1  filed yet another application Ex.50 seeking striking  out   of  some   other  ‘vague  and  non-specific’ pleadings but  the same  was rejected,  though the prayer of Respondent No.1  to amend the written statement made through application Ex.49 was allowed on 9.1.1992.      From the pleadings of the parties, the following issues were framed on 21.1.1992:-        (1)Do the  petitioners prove that they      were electors  in the election  held for      the Tenth   Lok  Sabha from  23,  Nagpur      Parliamentary Constituency?      (2) (a)  Do the  petitioners prove  that      a  meeting was held  in  the  office  of      the     Maharashtra    State    Handloom      Corporation on    17.5.91  during    the      Tenth Lok Sabha Election from 23, Nagpur      Parliamentary Constituency?      (b) Do  the petitioners  further prove      that  the  said meeting was addressed by      the respondent No.1?      (c)  Do  the petitioners prove that in      the said meeting, respondent  No.1   had      declared   that   labour   charges   for      handloom weavers  would be  increased by      0.35 paise per sq. metre from June 1991?      (d) Do  the petitioners prove that the      said declaration  of increase    in  the      labour   charges      was   made      by      respondentNo.1 to   hold  out promise of      gratification for  inducing the  weavers      numbering  1,50,000   to  vote  for  the      respondent No.1?      (e) Do  the petitioners prove that the      said declaration  made by the respondent      No.1 amounts  to commission  of  corrupt      practice   within   the    meaning    of      Section  123(1)(A)  i.e. bribery?      (f) Do  the petitioners  further prove      that   the   said declaration  made   by

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    respondent     No.1  also    amounts  to      undueinfluence constituting   commission      of corrupt practice under Section 123(2)      and further    amounts  to    direct  or      indirect interference  or    attempt  to      interfere  with  the  free  exercise  of      electoral   rights   of   the   handloom      weavers   who  were electors in the said      election?      (3) Do  the petitioners  prove that the      respondent No.1  has   not    maintained      correct   and   proper  accounts  as  is      required to  be maintained under Section      77 and  has incurred expenses in  excess      of  the limit  prescribed thereunder and      thereby  committed     corrupt  practice      under Section 123(6) of the Act?      (4) Do  the petitioners  prove that the      respondent    No.1     incurred     more      expenditure than   what  is disclosed by      him  in   the  return    of  expenditure      annexed as    Annexure    7    to    the      petition,  on  the  following  items  as      alleged in  paras 2,  4 to  2.10 of  the      petition, on  account of  the        (i)      payments made to Shri Devi Sharda Mangal      Karyalaya,  Nagpur,  by  way  of  office      rent?      (ii)  payments   made  to   M/S  Vishwa      Bharti  Typing Institute, Nagpur.      (iii)  payments   made to  M/S  Prince      Travels,     Nagpur,      for     hiring      autorickshaws and taxis.      (iv)   payments  made  to  M/S  Pramod      Automobiles, Nagpur.             (v)  payments  made  to  M/S  Raj      Automobiles, Nagpur.      (5) (a)  Do the  petitioners prove  that      the  respondent  No.1  has    authorised      and/or   incurred   expenditure  on  the      undermentioned items   which  has    not      been    disclosed  in    the  return  of      expenditure annexed as Annexure 7 to the      petition as alleged  in paras  mentioned      in   the   petition   described  against      each item hereunder?      (b)(i)  Do  the petitioners prove that      printing cards  at Annexure  9  indicate      that   the same  have been  published by      Nagpur   City       District    Congress      Committee, Nagpur,  but  the expenditure      incurred   on printing  and distribution      of about  15 lacs   voter-cards has been      made by respondent No.1 to the extent of      Rs.2,25,000/-.  Do     the   petitioners      further prove  that the  respondent No.1      has got    printed  those    cards    at      Shakti Offset   Works,  Nagpur   and the      said firm   received  a total  amount of      Rs.2,25,000/- from respondent No.1?      (ii)  Do   the petitioners  prove that      respondent  1     got   printed  3,25000      posters of   different   sizes    though      those posters  show   that  they    were      issued   by  President,  Nagpur District

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    Congress   Committee  and    the  entire      expenditure of  these posters    to  the      tune of   Rs.3,40,250/-   was   made  by      respondent No.1?      (iii) Do the petitioners prove that the      respondent    No.1     published     his      candidature by   large  size cut-outs at      places  mentioned   in     Annexure   11      alleged to  be prepared by persons whose      names   are given   in  Annexure  10? Do      the petitioners further prove  that cost      of   these   cutouts   comes   out    to      Rs.2,83000/- as   given  in  Annexure 11      and was  incurred by respondent No.1  by      paying  the same to persons mentioned in      Annexure 10?      (iv) Do  the petitioners prove that the      respondent    No.1     advertised    his      candidature  by    wall  paintings    at      different  locations  at    Annexure  12      costing  about     Rs.88500/-?   Do  the      petitioners  further  prove  that  these      wall paintings  work was  got   executed      by   respondent  No.1  through  painters      and incurred   expenditure    of  it  by      payment  of  charges  of painters?      (v)  Do  the  petitioners  prove  that      about   12,40,830 lettrers such as those      at Annexure 13 $ 14 were got prepared by      the   respondent No.1  and were  sent to      voters  and   almost  all  the    voters      received     these  letters?     Do  the      petitioners further prove  that although      on this letter, it appears that the same      is being   sent  at   the instance    of      Sarva  Dharma Sambhav Samajik Sanghatna,      trhe expenditure  required in  fact  was      incurred   by  respondent  No.1  to  the      extent  of  Rs.12,40,830/-?      (vi)  Do   the petitioners  prove that      advertisement  in newspapers at Annexure      A at Sl. Nos.A2, A5, A7, A8, A10, A14 to      A19,   A22 to    A27,  A28(b),    A30(a)      (first   part) A30   (b)  (second part);      Annexure B  at Sl. Nos. B4 to B9, B11 to      B14,B17 and   B18,  Annexure   C at  Sl.      Nos.   C1, C2,  C4, C5, C10,C12, C14  to      C18, C23  $ C24. Annexure D: at Sl. Nos.      D1, D2, D3, D5,  D7, D8,  D11, D13,  and      D15: Annexure  E at Sl. Nos. E1, E2, E9,      and E10; Annexure F, At Sl. Nos. F1, F2,      F3, F6,  F10, F14   and F16;  Annexure G      at Sl.   Nos. G1,  G2 and G3; Annexure H      at Sl.   Nos. H11  to H14,  H17, H8, H11      and H17,  were published  by  respondent      No.1  himself  in  connection  with  the      election and  he  himself  incurred  the      expenditure?      (vii) Do  the petitioners prove that the      advertisements appearing  in  newspapers      at-      Annexure A:  at S.Nos.  A6, A9,      A11 to   A13,  A20,  A21,  A27(a),  A28,      A30(b)   (first    part)   and   A31(b);      Annexure B:   At  S.   Nos. B1,  B2, B3,      B10, B15, B16 and B19.

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      Annexure C:  at S.  Nos. C3, C6 to C9,      C11, C13, C19 to C22.        Annexure  D: at  Sl. Nos. D6, D9, D10,      D12, and D14.      Annexure E: At Sl. Nos. E3 to E8;        Annexure F:  at S.  Nos. F3, F5, F7 to      F9, F11 to F13 & F15;        Annexure  G: at  S. Nos. G4 to G8; are      published   in connection  with election      by  the   respondent  No.1   and     the      expenditure  of  which  is  incurred  by      the respondent  No.1 himself  though  in      the  said  advertisement  the  names  of      publishers are   shown as  persons other      than   the respondent  No.1 as  given in      Annexures.      (6) (a)  Do the  petitioners prove  that      the respondent  No.1 had   employed  M/S      Yugdharma  Consultant    and  Commercial      Services, Nagpur    to  publicise    his      candidature and  incurred expenditure as      per the  details shown  in Annexures  17      and 18  alleged  in  para  2.13  of  the      petition.      (b)  Do   the petitioners   prove that      besides   the      above   agency,   the      respondent No.1  had employed  two other      agencies,   namely,    Orange       City      Advertising   and Prasad  Publicity  for      publishing   his       candidature    by      advertisements issued  in the nesspapers      and   thereby authorised   and  incurred      expenditure as  per   details shown   in      Annexure   18A,   18B   and   18C    and      alleged in  paras 2.23A  to 2.23D of the      petition?      (c)  Do   the petitioners   prove that      election  agent     of  respondent  No.1      incurred total  expenditure to  the tune      of  Rs.39500/-    on      14.6.91    and      17.6.91     for      publication      of      advertisement  in  connection  with  the      election?      (7) Do  the petitioner  prove that the      respondent  No.47   did   not   properly      scrutinise   the   nomination   of   the      respondent No.3 and  he was  allowed  to      represent   himself  as  such, althoough      a   wireless message   dated  26.4.91 to      the contrary  was   received    by   the      Returning   Officer   prior    to    the      acceptance of the nomination papers from      the  Chief   Electoral  Officer  of  the      Maharashtra ?      (8) Do  the petitioners  prove  that  by      allowing   the respondent   No.3      to      represent   himself   as   the  official      candidate of   R.P.I.(k), the  result of      the election  of the respondent No.1 has      been materially affected?      (9)  Are   the petitioners entitled to      have inspection of the ballot  papers on      the basis   of  the allegations  made in      paras 3.1   to 3.11  of the petition and      the allegations made in paras 1 to 13 of

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    Ex.28?      (10) Do  the petitioners prove that the      election of  the respondent No.1  to the      Tenth Lok   Sabha   from   23,    Nagpur      Parliamentary   Constituency    is  void      on   accunt    of    the  commission  of      corrupt  practices     under     Section      123(1A)   & Section  123(2) and  Section      123(6) of the Act?      (11) Do  the petitioners prove that the      respondent No.2 has secured  majority of      valid votes   to  entitle    him  to  be      declared as   duly   elected   from  23,      Nagpur   Parliamentary  Constituency  to      the Tenth Lok Sabha?      (12)  Do   the petitioners  prove that      but   for    the   votes   obtained   by      respondent No.1   by  alleged    corrupt      practices, the  respondent   No.2  would      have obtained   majority  of valid votes      to  entitle  him  to  be  declared  duly      elected ?      (13)  whether  respondent No.2  can be      declared as  duly elected  to the  Tenth      Lok Sabha  from 23, Nagpur Parliamentary      Constituency, Nagpur ?      (14) What order?      After  the  evidence  of  some  of  the  witnesses  was recorded on  behalf of  the appellants,  Election Petitioner No.1 filed  an application, Ex. 701 on 27.5.1992, once again for amending  the election  petition in  the  light  of  the evidence recorded.  Respondent No.1  filed his objections to the said  application through  Ex.  834  on  15.6.1992.  The learned Single Judge, allowed the application permitting the election petitioner  to amend  the  election  petition  once again and  being of  the view that no new issue was required to be  framed  on  the  basis  of  the  proposed  amendments directed that  the Respondent No.1 could apply for recalling any  of   the  petitioners’  witnesses  for  further  cross- examination  On   17.6.1992,  Respondent   No.1   filed   an application Ex. 835 for leave to amend the written statement which was  also allowed.  We shall advert to the proceedings concerning various  amendments in  the latter  part of  this judgment.      The  learned  Single  Judge  after  conclusion  of  the evidence and  after hearing  learned counsel for the parties held that  the appellants  (election petitioners) had proved that respondent No.1 had not maintained a correct and proper account of  the election  expenditure as  is required  to be maintained under  Section 77  of the  Act. It was also found that  respondent  No.1  had  not  shown  in  his  return  an expenditure to  the extent  of  Rs.58220/-  apart  from  the expenditure  shown   by  him   in  the  return  of  election expenditure but  since the  addition of  the said amount, to the amount  of expenditure  shown by  respondent No.1 in his return of  election expenses, did not exceed the permissible limit of  Rs.1,50,000/-, the  returned candidate, respondent No.1, did  not commit  any corrupt  practice as envisaged by Section 123(6)  and  dismissed  the  election  petition  but without any order as to costs in favour of Respondent No.1.      Since,  in   this  appeal   learned  counsel   for  the appellants Dr.  Ghatate has  confined his  case to issues 3, 4(V), 5(b)  (i) (ii) (v) (vi) (vii); issue No.6 (a) (b) (c); and partly  Issue No.10,  we are,  as such,  relieved of the necessity of  dealing with  the other issues. We confirm the

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findings of  the High  Court in  respect of  those issues of which correctness has not been disputed before us.      The right  to elect  and the  right to  be elected  are statutory rights. These rights do not inhere in a citizen as such and  in order to exercise the right certain formalities as provided  by the  Act and  the Rules  made thereunder are required  to   be  strictly  complied  with.  The  statutory requirements of  election law  are to  be strictly  observed because the  election contest  is not  an action at law or a suit in  equity but  it is  a  purely  statutory  proceeding unknown to  the common  law. The  Act is  a complete code in itself for  challenging an  election and an election must be challenged only  in the  manner provided  for by the Act. In Jyoti Basu  Vs. Debi  Ghosal (1982  (3) SCR 318), this Court observed:        "A   right     to  elect,  fundamental      though   it    is    to  democracy,  is,      anomalously  enough,      neither      a      fundamental right  nor   a Common    Law      Right.   It is   pure  and   simple,   a      statutory right.   So  is  the right  to      be elected.  So is the right to  dispute      an   election. Outside of statute, there      is no  right  to elect,  no right  to be      elected  and  no  right  to  dispute  an      election.   Statutory   creations   they      are,     and  therefore,   subject    to      statutory   limitation.   An    Election      petition is   not  an   action at Common      Law, nor  in equity.  It is a  statutory      proceeding  to which  neither the Common      Law nor the  principles of  Equity apply      but  only     those    rules  which  the      statute  makes  and  applies.  It  is  a      special jurisdiction,  and    a  special      jurisdiction has  always to be exercised      in   accordance   with    the    statute      creating   it.  Concepts  familiar    to      Common   Law   and  Equity  must  remain      strangers  to    Election  Law    unless      statutorily  embodied.   A Court has  no      right     to  resort      to   them   on      considerations   of    alleged    policy      because policy   in  such   matters   as      those,  relating  to    the  trial    of      election    disputes,  is    what    the      statute lays   down,  In  the  trial  of      election disputes,  Court is  put  in  a      straight jacket."      Though the election of a successful candidate is not to be interfered with lightly and the verdict of the electorate upset, this Court has emphasised  in more than one case that one of  the essentials  of the election law is to  safeguard the purity of the election process and to see that people do not get  elected by  flagrant breaches  of  the  law  or  by committing corrupt  practices. It must be remembered that an election petition  is not a matter in which the only persons interested  are  the  candidates  who  fought  the  election against  each   other.  The  public  is  also  substantially interested in  it and  it  is  so  because  election  is  an essential part  of a  democratic process. It is equally well settled by  this Court  and necessary to bear in mind that a charge of  corrupt practice  is in  the nature  of  a  quasi criminal charge,  as its  consequence is  not only to render the election  of the  returned candidate  void   but in some

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cases  even  to  impose  upon  him  a  disqualification  for contesting even  the next  election.  The  evidence  led  in support of  the corrupt practice must therefore, not only be cogent and  definite but  if the  election petitioner has to succeed,  he   must  establish   definitely   and   to   the satisfaction of  the court  the charge  of corrupt  practice which he  levels against  the returned  candidate. The  onus lies heavily  on the  election petitioner  to establish  the charge of  corrupt practice and in case of doubt the benefit goes to  the returned  candidate. In the case of an election petition, base  on  allegations  of  commission  of  corrupt practice, the  standard of  proof is generally speaking that of criminal  trials, which  requires  strict  proof  of  the charge beyond  a reasonable doubt and the burden of proof is on the  petitioner and that burden does not shift. (See with advantage :  Nihal Singh  Vs. Rao Birendra Singh & Anr (1970 (3) SCC,  239); Om  Prabha Jain  Vs. Charan Das & Anr. (1975 (Supp) SCR,  107); Daulat Ram Chauhan Vs. Anand Sharma (1984 (2) SCR,  419) and  Quamarul Islam Vs. S.K. Kanta And Others (1994 Supp (3) SCC, 5).      By  this   proposition,  however,   we  should  not  be understood to  mean or  imply that the returned candidate is absolved from  his liability  to bring forth evidence on the record  to   rebut  the   case  of  the  petitioner  and  to particularly prove  such facts  which are within his special knowledge  (Section 106 Evidence Act). Though, the nature of allegations in  cases alleging  corrupt practices are quasi- criminal and  the burden  is heavy  on him  who  assails  an election but  unlike in  a criminal  trial, where an accused has the  liberty to  keep silent,  during the  trial  of  an election petition the returned candidate has to place before the Court  his version  and to satisfy the Court that he had not  committed  the  corrupt  practice  as  alleged  in  the petition and wherever necessary by adducing evidence besides giving his sworn testimony denying the allegations. However, this stage reaches if and when the election petitioner leads cogent and  reliable evidence  to prove the charges levelled against the returned candidate as, only then, can it be said that the  former has discharged his burden. That necessarily means, that  if the election petitioner fails to adduce such evidence which  may persuade the Court to draw a presumption in his favour the returned candidate will not be required to discharge his burden by adducing evidence in rebuttal. While on this  point it will be also pertinent to mention that the election petitioner  has stablish the charge by proof beyond reasonable  doubt   and  not   merely  by  preponderance  of probabilities as  in civil  action. In  Surendra  Singh  Vs. Hardayal Singh [AIR 1985 SC 89], this Court held it as       "very  well   settled  and  uniformally      accepted     that  charges   of  corrupt      practices  are   to  be   equated   with      criminal  charges  and    proof  thereof      would  be     not    preponderance    of      probabilities,  as   in  civil   action,      but   proof  beyond reasonable doubt and      if after  balancing the evidence adduced      there still   remains  little   doubt in      proving the  charge its benefit must  go      to   the returned   candidate.’  Various      tests have  been   laid down by the High      Courts and  by this  Court to  determine      the   extent   of   proof   required  to      establish  a corrupt practice.  The most      well accepted   test  however   is  that      the    charge   must     be  established

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    fully   to    the  satisfaction  of  the      Court. While insisting upon the standard      of strict   proof  beyond   a reasonable      doubt, the  courts are  not required  to      extend  or stretch  the doctrine to such      an extreme  extent   as to  make it well      neigh impossible to prove any allegation      of corrupt  practice   and as  was  said      in Harcharan  Singh   Vs.  Sajjan  Singh      [AIR 1985  SC  236]  "such  an  approach      would   defeat and   frustrate the  very      laudable and  sacrosanct object   of the      Act  in     maintaining  purity  of  the      electoral process".      We are  in respectful  agreement with  the above  view. Some times  direct evidence  about the commission of corrupt practice may  not be  forthcoming or  available and  in that case, the  charge may  be proved by producing circumstantial evidence but  the courts, in such cases insist, that each of the circumstances  must be  proved individually  and all the circumstances put together must point unerringly only to the hypothesis of  the commission of the corrupt practice by the returned candidate  and must  not be  capable of  any  other hypothesis consistent  with the  innocence of  the  returned candidate.   (See : Quamarul Islam Vs. S.K. Kanta And Others (supra); Raj  Narain Vs.  Indira Gandhi (1976 (2) SCR, 347); Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others (1975 (4) SCC, 769).      The election  law insists  that to  unseat  a  returned candidate,  the  corrupt    practice  must  be  specifically alleged and  strictly proved  to have  been committed by the returned candidate  himself or  by his  election agent or by any other  person with the consent of the returned candidate or by  his   election agent.  Suspicion,  howsoever,  strong cannot take  the place of proof, whether the allegations are sought  to   be  established   by  direct   evidence  or  by circumstantial evidence.  Since, pleadings play an important role in  an election  petition, the legislature has provided that the  allegations of  corrupt practice  must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action.      Section 83  of  the  Act  provides  that  the  election petition must  contain a  concise statement  of the material facts on  which the  petitioner relies  and further  that he must set forth full particulars of the corrupt practice that he alleges  including as full a statement as possible of the name of  the parties  alleged to have committed such corrupt practices and  the date and  place of the commission of each of such  corrupt practice.  This Section has been held to be mandatory and requires first a concise statement of material facts and  then the  full particulars of the alleged corrupt practice. So  as to  present a  full picture of the cause of action.      A petition  levelling a  charge of  corrupt practice is required, by  law, to  be supported  by an affidavit and the election petitioner  is also  obliged to disclose his source of information  in respect of the commission of the  corrupt practice.  This  becomes  necessary  to  bind  the  election petitioner to  the charge levelled by him and to prevent any fishing or  roving  enquiry  and  to  prevent  the  returned candidate from  being taken  by a  surprise. (See: Samant N. Balakrishna Vs.  George Fernandez  and others  (AIR 1969 SC, 1201).      The jurisdiction  to try  an election petition has been

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vested in  the High Courts. Election petitions are generally speaking tried  by experienced  Judges of  the High  Courts. Those learned  Judges have  the  benefit  of  observing  the witnesses  when   they   give   evidence.   Therefore,   the appreciation of  evidence by  the High  Court is entitled to great weight.  Generally speaking  this  Court  accepts  the findings  of  fact  arrived  at  by  the  High  Court  after appreciation of  evidence. (See  Sheodan Singh  Vs Mohan Lal Gautam (AIR 1969 SC 1024).  Being the court of First Appeal, however, this  court has  no inhibition  in reversing such a finding, of  fact or  law, which  has  been  recorded  on  a misreading or wrong appreciation of the evidence or the law, but ordinarily  and generally  speaking this court does not, as it  ought not  to, interfere  with the  findings of  fact recorded by  the learned  trial Judge  of  the  High  Court, unless there  are compelling  reasons to do so. It is in the light  of  the  above  settled  principles,  that  we  shall consider the materials on the record and the findings of the High Court  in respect  of which  challenge  has  been  made before us.      As  already  noticed,  the  appellants  confined  their challenge to  the findings  in respect of some of the issues only which  relate to  the commission of corrupt practice of incurring  or  authorising  expenditure  in  excess  of  the prescribed limits  within the  meaning of  Section 123(6) of the Act. It would, therefore, be appropriate to consider the parameters of the alleged corrupt practice before we examine the findings  and the  arguments in  respect of the relevant issues.      Section 77 of the Act provides that ’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  days  inclusive, Explanation (1) which was introduced by the Amendment Act of 1974 declares that any 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  have been,  expenditure  in connection with  the election  incurred or authorised by the candidate or  by his election agent for the purposes of sub- section (1)  of Section  77. Sub-section  (2) of  Section 77 provides that the account of election expenses shall contain such particulars  as may  be prescribed  and sub-section (3) lays down  that the  total of the said expenditure shall not exceed such  amount as may be prescribed. Vide Section 78 of the Act  the account  of election expenses is required to be lodged with  District Election Officer by every candidate at an election  within thirty days from the date of election of the returned  candidate.  The  maximum  amount  of  election expenditure which  may be incurred by the candidates for the parliamentary   and   Assembly   Constituencies   has   been prescribed in Rule 90 of the Conduct of Election Rules 1961. In so  far as the Parliamentary Elections are concerned, the said limit  is Rs.1,50,000/-.  Under Section  123(6) of  the Act,  the   incurring  or   authorising  of  expenditure  in contravention of Section 77 of the Act amounts to commission of a  corrupt  practice.  However,  every  contravention  of Section 77  of the  Act does not fall within the mischief of Section 123(6)  of the  Act. Neither  the violation  of sub- section (1)  of Section  77 nor the violation of sub-section (2) of  Section 77  amounts to the commission of the corrupt

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practice under  Section 123(6)  of the Act. However, Section 77(3)  mandates   that  the  total  of  the  expenditure  in connection with the election shall not exceed the prescribed limit and  therefore the provisions of Section 123(6) of the Act are  related only  to Section  77(3) of  the Act.  If  a candidate incurs  or authorises expenditure in excess of the prescribed limits,  he commits  the corrupt  practice  under Section 123(6)  of the  Act and his election is liable to be set aside  and he  also incurs the disqualification of being debarred from  contesting the  next election.  From a  plain reading of Section 123(6) and 77 including  Explanation I to the Section  77 of  the Act,  it is  therefore clear that in order to  be a  corrupt practice,  the excessive expenditure must be  incurred or  authorised by  the  candidate  or  his election agent.  An expenditure  incurred by a third person, which is  not authorised  by the  candidate or  his election agent is not a corrupt practice. In Magh Raj Patodia Vs R.K. Birla, [AIR  1971 SC  1295] after  referring to  a catena of authorities even  before the  inclusion of  Explanation I to Section 77  of the  Act by  the Amendment Act 58 of 1974, it was  emphasised  that  to  prove  the  corrupt  practice  of incurring or  authorising expenditure  beyond the prescribed limit, it  is not  sufficient for  the petitioner  to merely prove that  the expenditure  beyond the prescribed limit had been  incurred  in  connection  with  the  election  of  the returned candidate,  but he  must go  further and prove that the excess  expenditure was  authorised or incurred with the consent of  the returned candidate or his election agent. In Raj Narain  Vs. Indira  Gandhi (1976 (2) SCR 347) this Court reaffirmed the  above view  and taking note of the Amendment Act 58  of 1974,  opined that voluntary expenditure incurred by friends,  relations, or  sympathisers of the candidate or the candidates’  political party  are  not  required  to  be included in  the candidate’s  return of expenses, unless the expenses were  incurred in  the circumstances  from which it could be  positively inferred  that the successful candidate had undertaken  that he  would reimburse  the party  or  the person who  incurred the  expense. It is not enough to prove that some  advantage accrued  to the  returned candidate  or even that  the expenditure  was incurred  for the benefit of the returned  candidate or  that it was within the knowledge of the  returned candidate  and he  did not  prevent it,  to clothe  the   returned  candidate   with  the  liability  of committing  the  alleged  corrupt  practice.  Noticing  that during an  election, the  sponsoring or supporting political parties as well as friends, sympathisers and well-wishers do sometimes inour  expenditure not only without the consent of the concerned  candidate but even without his knowledge this court opined that the successful candidate cannot be clothed with all such expenses to suffer the disqualification.      In P.Nalla  Thampy Vs.  Union of  India  [AIR  1958  SC 1133], a  Constitution Bench  of  this  Court  examined  the validity of  Explanation (1)  to Section  77 (1)  of the Act (introduced in  1974) and  Chandrachud CJ  (as he  then was) while upholding its constitutionality, observed:        "In  any    democratic    system    of      Government,  political parties occupy  a      distinct  and  unique  place.  They  are      looked upon   as   guardian  angles   by      their   members.,  though, occasionally,      they   fail to   discharge  the   benign      role   of guardian,  leave    alone  the      angelic part  of it.  It is through them      that   the generality    of  the  people      attempt  to  voice  or  ventilate  their

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    grievances.   Considering,   also    the      power  which  they    wield    in    the      administration      of      Governmental      affairs,  a    special  conferment    of      benefits   on them   in  the  matter  of      mobilities  governing     the   election      process   cannot    be    regarded    as      unreasonable or arbitrary."      The Constitution Bench thus emphatically laid down that unless the  expenditure is in fact incurred or authorised by the candidate  or his  election agent,  he cannot be saddled with that  expenditure. Of  course  a  candidate  cannot  be permitted to  place his own funds in the power or possession of a  political party, an association, or some other persons or individuals  for being spent on his behalf and then plead for the  protection under  Explanation (1)  to Section 77 of the  Act.   Where  the   election  petitioner   successfully establishes that  the funds  were provided  by the  returned candidate, it  would be  immaterial as  to who actually made the payments,  which ought  to have  been  included  in  the return of election expense. It is not "whose hand it is that spends the money". The essence of the matter is "whose money it is" that has been spent. In order that explanation (1) to Section 77  of the  Act may  apply, therefore,  it  must  be proved that  the source  of the expenditure incurred was not out of the money of the candidate or his election agent.      Respondent No.  1 lodged  the account  of his  election expenses with  the District  Election Officer  on 12th July, 1991,  supported   by  45   vouchers  disclosing  the  total expenditure of Rs. 72,421.85. The appellants in the election petition pleaded  that Respondent  No. 1 had not kept a true and correct  account  of  the  expenditure  incurred  and/or authorised by  him or  by his  election agent in relation to the elections  held on  12th June, 1991 and had exceeded the prescribed limit  and thereby committed the corrupt practice under Section 123(6) of the Act. The appellants alleged that a huge amount of expenditure incurred in connection with the election of  Respondent No. 1 was falsely shown to have been incurred by  the political  party  and  other  associations, persons or  individuals, though  in fact the expenditure had been incurred  and/or authorised by Respondent No. 1 himself or by  his election  agent. It  was asserted that Respondent No. 1  had placed  his own funds in the power and possession of the  political party,  organisations and  individuals for being spent  in connection  with his  election in  order  to circumvent the  law  and  escape  from  the  consequence  of incurring and  authorising expenditure beyond the prescribed limits. It was alleged that Respondent No. 1 had incurred an expenditure for  the purpose  of  his  election  during  the period  25.4.1991   to  16.6.1991   to  the   tune  of   Rs. 38,30,375.50,  as  against  the  permissible  limit  of  Rs. 1,50,000.00. The statement showing the expenditure allegedly incurred and  authorised by  Respondent No.  1 was  given in para 2.24  of the  election petition. At the trial, however, items No.  2, 8,  9 and  14 out  of that  statement were not pressed. The  High  Court,  however,  in  para  200  of  the judgment found that besides the expenditure disclosed in the return of  expenses filed  by Respondent  No. 1, he had also incurred the following expenses, which had been suppressed: Rs. 17,900.00    for the amount paid to Raj Automobiles; Rs. 1,320.00       for the advertisement in the Tarun Bharat                  dated 28.4.1991. Rs. 7,000.00        for the  advertisement in Tarun Bharat -                  Election Special. Rs. 9,100.00     for the advertisement in Lokmat Dt.

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                12.5.1991 (Sharad Pawar  Mitra Mandal) Rs. 22,900.00    in view of the findings recorded on issue                  No. 5(b) (vi) & (vii). --------------------- Total : Rs. 58,220.00 --------------------- and adding  the amount  of expenditure  suppressed i.e.  Rs. 58,220.00, to  the declared  expenses, the  High Court found that the  return of  expenditure filed  by Respondent  No. 1 should have  been for  a sum  of Rs.  1,30,641.85.  However, since  even  that  amount  fell  short  of  the  permissible expenditure of Rs. 1,50,000.00, it was found that Respondent No. 1  had not  committed the  corrupt practice  within  the meaning  of   Section  123  (6)  of  the  Act.  Whereas  the appellants have challenged the findings of the High Court on some  of  the  issues,  as  already  noticed,  the  returned candidate, Respondent No. 1, has also filed cross objections challenging the  finding of the High Court in respect of the addition of Rs. 58,220.00. ISSUE NO. 4 (V) :      Though issue No. 4 concerns five items, it is only item No. (v)  which has  been pressed  before us  by the  learned counsel for  appellants. The  findings of  the High Court on items (i)  to (iv)  of Issue  No. 4, which have been decided against the  appellants have  not been  challenged before us and therefore,  we confirm  the findings  of the  High Court regarding those  items. So far as Item No. (v) is concerned, it relates  to the  payments made by respondent No. 1 to M/S Raj Automobiles for purchase of fuel etc.      According to  the appellants,  Respondent No.  1 in his return of  expenditure submitted  to the  District  Election Officer had,  under Items  31 to  34, shown  the expenditure incurred by  him on account of purchases of petrol etc. from M/s. Raj  Automobiles, Civil  Lines, Nagpur  under bills No. 401 to  404 for  the period  1.5.1991 to  12.6.1991 but  had failed to  include the  cost of  1180 litres  of petrol also allegedly purchased  by  the  returned  candidate  from  Raj Automobiles over  and above  the quantity of petrol shown to have been purchased by Respondent No. 1 under bill Nos. 401, 402 and 403, as disclosed in the return of expenses filed by him for  the period  1.5.1991 to  12.6.1991. The  appellants specifically pleaded  that petrol  which had  been shown  to have been  purchased by  respondent  No.  1  was  for  three vehicles : (i) MH-31-G-1722; (ii) MH-02-2200; and (iii) 7069 but the  cost of  purchase of 1180 litres of petrol had been suppressed. In  his written  statement,  Respondent  No.  1, admitted that  under  items  31  to  34  in  his  return  of expenditure, he had shown the expenditure incurred by him on account of  the purchase of petrol from M/s. Raj Automobiles during  1.5.1991   to  12.6.1991   but   denied   that   Raj Automobiles, Civil  Lines, Nagpur  had sold  1180 litres  of petrol over  and above  the quantity of petrol shown to have been purchased  by him  under bill  No. 401,  402, 403 filed alongwith the  statement of account. It was pleaded that the allegation was  vague and  based on  speculation and that no particulars had  been given  of the  basis on  which it  was alleged that  he had  purchased 1180 litres of petrol at the cost of Rs.17900/- in addition to what had been disclosed by him.      The appellants  examined PW  36, Shankar Rao Gadge, who was working  as an  Accountant with  Raj Automobiles  at the relevant time.  He deposed  that a  credit account  had been started for Respondent No. 1 at the instance of Mrs. Shalini Bai Meghe  (wife of  respondent No.  1 and proprietor of Raj Automobiles) and  credit  slip  books  had  been  issued  to

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Respondent No.  1. That whenever petrol or oil was purchased by or for respondent No.1, a copy of the credit slip used to be given  to M/s.  Raj Automobiles  and its  counterfoil was retained by  the customer.  The original  credit slips  were lateron returned to the first respondent alongwith the bill. The witness  after referring to the record deposed that fuel had been  supplied to  respondent No.  1 for car Nos. MH-31- 1722, MH-02-2200,  MK-1/1022 besides  vehicle No.  1422  and 7069 during  1.5.91 to  16.6.91. He  also proved a cash memo dated 16.6.1991  for bill  No. 2503 (Ex. 681) for sale of 10 liters of  petrol  sold  to  respondent  No.1.  The  witness admitted that  receipt No. 843 dated 12.7.1991 (Ex. 680) was in respect  of bill  Nos. 401  to 405  for the  consolidated amount of Rs. 12,152.40 and went on to say that the payments had been  made by  a cheque by respondent No.1. According to the witness, except the petrol which was sold under the cash memo Ex.680 all other petrol and oil sold to Datta Meghe was worth Rs.  12152.40 p.  All these  transactions are  carried over and  entered in their accounts. "We did not sell either oil  or  petrol  besides  these  to  Datta  Meghe"  was  the categorical statement made by PW36 Gadge.      The appellants  also examined Shri Prakash Baidya PW33. This witness  earlier used  to  be  a  partner  in  M/S  Raj Automobiles till  1991 where  after he  ceased to  have  any concern  with  Raj  Automobiles.  During  the  parliamentary elections, he  was the  General Secretary of the East Nagpur Assembly Constituency  for BJP,  the party to which both the appellants as  well as  respondent No. 2 belonged and was in charge of  that area. He deposed that it is necessary to put one litre  of oil if the consumption of petrol is 100 to 125 liters and  that in one litre of oil, the run of the vehicle would be  about 1000  kms. on  an average consumption at the rate of  10 kms  per litre  of  petrol.  During  the  cross- examination, he admitted that he had deposed about the ratio of consumption of petrol and oil from his experience and not from any  book and also conceded that if an engine is old it would consume  more oil  as well as more petrol and that the oil-petrol ratio  varies according to the horse power of the engine and  its model and that if the chamber of the vehicle leaks, the  consumption of  oil would  be  more  because  of leakage and  not on  account of the consumption. He admitted that he is not an automobile engineer.      Respondent  No.   1,  the  returned  candidate  in  his statement admitted  that his  wife owns  Raj Automobiles and that petrol  and oil  were bought  by him on credit from Raj Automobiles, except  for one  cash transaction  on 16.6.1992 for Rs.  147.40 (Ex. 681). He went on to add that he did not buy  petrol   from  any  other  petrol  station  except  Raj Automobiles during  the election  period and that the credit slips which  used to  be  issued  to  Raj  Automobiles  were received back  by him with the bill from Raj Automobiles and after the  bills were paid, the credit slips were destroyed. During his  cross-examination, he  stated that  he had three diesel and  four petrol  cars with  him for his election and that he  had hired  some motor cars and auto-rickshaw on 19, 20 and  21 May  and 8,  9,  10  June,  1991  through  Prince Travels. He  disclosed the names of the parties from whom he had procured those vehicles and asserted that besides Car No 7069 which he had procured from Nagar Yuvak Sanstha, he used the cars  of the  workers who  used to  come  and  see  him. According to him vehicle No.7069 is NE and the model was 3/4 years old. For coming to the conclusion that the returned candidate had purchased more  fuel than the one shown by him in his return of expenditure,the  High Court  relied upon  the  petrol-oil

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ratio as  deposed to  by pw  Baidya. It  was found  that the amount of oil admittedly purchased by the returned candidate as per bill No.404 when considered in the light of the total fuel purchased  would show  that, much  more fuel would have been purchased  to consume  the quantity of oil purchased as per bill No.404. It was found by the High Court on the basis of the  calculations made  that the  returned candidate  had suppressed an  expenditure to  the tune  of Rs.18,277.60 but since the  appenllants had  asserted  that  there  had  been suppression of  the use  of  1180  litres  of  petrol  worth Rs.17900/-only,therefore only that much of expenditure could be  added   to  the   disclosed  expenses  of  the  returned candidate.  The   High  Court   while  entering   into   the calculations did not base itself on the oil-petrol ratio but multiplied the  consumption of  petrol for  one of  the cars (MH-31G-1727), which  was admittedly used by respondent No.1 by 3  and drew  an inference that for the other 3 cars also. the same  amount of petrol would have been consumed and thus found that  the returned candidate would have purchased more petrol worth atleast Rs.18277.60.      In the election petition a specific allegation had been made to the effect that the returned candidate had purchased 1180 litres of petrol in addition to what had been disclosed by him  from Raj  Automobiles. In  the verification  of  the election petition,the appellants had disclosed the source of information with  regard to  the contents  of para  2.10  as based on  the information  received from  Shri Baidya PW. In the affidavit  filed in  support of  the allegations  of the said corrupt  practice, the  source of  information was also disclosed to  be Shri Baidya PW. However, PW53, Shri Prakash Baidya, in his deposition in court did not state that he had conveyed any  information to  the election petitioners about the alleged  excess purchase  of 1180  litres of  petrol  by Respondent No.1  from M/s.  Raj Automobiles  apart from  the quantity of fuel purchased by him as disclosed in the return of  election   expenditure.  In   his  statement,   he  only speculated about  the excess purchase of petrol on the basis of oil-petrol  ratio, based  on his  experience even  though admittedly he  is  not  an  expert,not  even  an  automobile engineer. In  the election  petition nothing  was said about the petrol-oil  ratio as the basis from which the appellants had inferred  that 1180  litres of petrol had been purchased by the  returned candidate  in addition  to the  quantity of fuel  shown   to  have   been  purchased  by  him  from  Raj Automobiles. Except  for giving same figure of ’1180’ litres of petrol alleged to have been purchased by respondent No.1, the appellants  did not  give any other facts or particulars in the  election petition  for  alleging  purchase  of  1180 litres of  excess petrol  and left the matter totally vague. Even in  his own  statement,appellant No.1, did not disclose the basis  for arriving  at the figure of ’1180’. An attempt was apparently  made to get sustenance from the testimony of Baidya PW53,  admittedly a  partyman of  the appellants  and respondent No.2,  to support  the allegations  made  in  the petition on  the basis  of oil-petrol  ratio. Even  in  that behalf we find that no evidence was led by the appellants to show as  to what  were the models of the vehicles which were used by  the returned  candidate and the extent to which all those vehicles  had been  used  during  the  elections.  The returned candidate,  R1W1,  was  not  even  asked  a  single question regarding  the extent  of the  use of the different vehicles to  determine the  mileage- run  in respect of each one of  those vehicles.  No explanation was even sought from him regarding  the oil-petrol  ratio or as to why so much of oil  had   been  purchased  for  so  little  fuel.  In  this

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connection,it is  also relevant to note that PW33 Shri Vijay Rathi, the  Accountant of Raj Automobiles, had been summoned by the  appellants alongwith  the record presumably to prove the excess  sale of  1180 litres  of petrol,  apart from the fuel shown in bill Nos. 401, 402, 403 and 404 but the record was never  got exhibited  and there  is , thus, force in the submission of  Mr Manohar,  learned counsel for the returned candidate that  a presumption  should be  drawn against  the appellants to  the effect  that the  summoned  record  being inconvenient was  not got  exhibited by  the appellants. The observation of  the High  Court, under the circumstances, to the effect  that Raj  Automobiles had  suppressed the record does not  appear to  be well  founded as the summoned record had been  brought by  PW33 to  the court but the party chose not to get the same exhibited and no fault can be found with Raj Automobiles      The  High   Court,  as   already  noticed,   found  the suppression of  Rs.18,277.60 on the calculation based on the quantity of petrol purchased for vehicle No. MH-31-G-1722. The  total petrol  purchased for  that vehicle was shown  as 470 litres and the amount of oil purchased for that was shown to be 22 litres. Obviously, the  ratio of  oil-petrol as  deposed to  by Shri Baidya PW53,  does not  appear to  have any  relation to the petrol-oil ratio  for the  said vehicle. On the basis of the ratio as  deposed to  by PW53,  more than  50 litres  of oil should have  been consumed for this vehicle. The High Court, as already  observed, calculated  the cost  of 470 litres of petrol as Rs.6927.80 and than multiplied it by 3 and arrived at the  figure of  Rs.20,783.40 and  deducting an  amount of Rs.2505.80, which  had been  shown to  be cost of the petrol used for  the  two  other  vehicles  used  by  the  returned candidate, determined  the suppression  at Rs.18277.60,  but since the  election petitioners  had alleged  suppression of the use of 1180 litres of petrol worth Rs.17,900/- only, the High Court  fastened the  liability on  the first respondent not for the amount of Rs.18277.60 but Rs.17900/- only      In our  opinion, the  approach of  the High  Court  was wrong and  it fell  into a  complete error  in making  these calculations which  are not even based on guess work but are totally conjectural  in nature. The type of exercise done by the High  Court had  neither any  factual foundation  in the election petition  nor even  in the evidence. The High Court made out  a new case neither the one pleaded by the election petitioners nor  the one  pleaded by the returned candidate. It was  not a permissible course for the High Court to adopt while dealing with the allegation of commission of a corrupt practice in an election petition. Since, no evidence was led by the  election petitioner  about the  alleged purchase  of excess of  1180 litres  of petrol,  the High  Court ought to have found  the issue against the appellants. The finding of the High  Court is, not on any evidence. Except PW1 who made a vague  statement to  the   effect that  he  had  seen  the vehicles pleaded  in the  election petition,  on  the  roads throughout during  the election,  without  indicating  when, where and  which vehicle,  on other evidence was produced to show the  extent to which the other vehicles in question had been used  during the  election by  Respondent No.1  or  his election agent  or by  any other  person with the consent of respondent  No.1   or  his   election  agent.  The  election petitioner could  have examined  withnesses  from  different segments of the constituency to depose, if they had seen the returned candidate or his election agent in that area in any particular vehicle  and then  number of  occasions when  the returned candidate  had been so seen in different localities

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in the  same or different vehicles to show the extent of run of those  vehicles by bringing out the total distance likely to have  been covered.  No such evidence was led, though the production of  such evidence was not an utter impossibility. That  vehicle   No.1722  (which   was  made  the  basis  for calculation of  total  run  by  the  High  Court)  was  more extensively used,  than the  other vehicles  is a  reasonble possibility which  cannot be  ignored. It was incumbent upon the appellants to prove the sale of 1180 litres of petrol in favour of  Respondent No.1  by Raj Automobiles as alleged by them  in  the  election  petition,  by  leading  cogent  and satisfactory evidence and they miserably failed to prove the said charge,  let alone  beyond a reasonable doubt. Even the mathematical calculation made by the High Court also appears to be incorect but we need not detain ourselves to point out the same because of the infirmities pointed out by us in the approach of the High Court. The finding of the High Court on Issue No.4  (V), therefore,  cannot be  sustained and we set aside that  finding and hold that the appellants have failed to prove  Issue No.4  (V) and  consequently the  addition of Rs.17,900.00 in the return of expenditure of respondent No.1 was not  justified and  the said  amount shall  have  to  be excluded. The cross-objection to that extent succeeds and is allowed. ISSUE NO.5 (b) (i) & (ii)      The allegations  of the  election petitioners which led to the  framing of Issue No.5 (b) (i) and (ii) are contained in paragraphs  2.11 to  2.14 of  the election  petition  and concern the issuance of voter cards to 1243382 voters in the constituency by  the returned  candidate after  getting  the same printed  at a  cost of Rs.2,25,000/- from Shakti Offset Works, appealing  to the electorate to vote for the returned candidate. Besides,  Respondent No.1 is also alleged to have got printed  posters of  different sizes,  namely, one  lakh posters of  20"x30"; one  lakh  fifty  thousand  posters  of 18"x23"  and   seventy  five  thousand  posters  of  15"x20" propogating his  candidature and  these posters of different sizes, on  an average of about 300 posters were exhibited at each of  the 1250 polling booths in the constituency. It was alleged that   in  all 3,25,000  posters were got printed by the returned  candidate between  25.4.91 and  21.5.91  after incurring an  expense of  Rs.3,40,250.00 for the printing of the said posters and the first respondent did not include in the return  of his  election expenses  either the  amount of Rs.2,25,000/-  being   the  cost  of  the  voters  cards  or Rs.3,40,250/- being  the cost of the posters. In the written statement, while admitting that the appeal made in the voter cards was  to cast  votes in  favour of the first respondent and that the posters were also published for the furtherance of the  prospects of  the election  of the first respondent, the  returned   candidate  denied   to  have   incurred  any expenditure at  all on  printing and  distribution of either the voter  cards or  the posters.  According  to  the  first respondent, he  learnt about the printing of about four lakh voter cards  by the Nagpur City  District Congress Committee at its  own expense  and also came to know that some posters had been  got printed  and published by Nagpur City District Congress Committee while some more posters had been supplied by Congress  (I) through  its  sub-organisations,at  various levels, as  per the  past practice  and as  per the practice being followed  by the  other parties  also for distribution and that  he had neither authorised nor incurred any expense for the  said cards  and posters  and that the same had been published and  distributed without  his knowledge  let alone his consent.

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    The appellant  Bapat PW1  in his statement deposed that voter cards  had been  issued about  eight days prior to the poll to  every voter  as mentioned  in the voters list Ex.74 and according  to his estimation the cost of printing of the voter cards  would be  Rs.2,25,000/-. In  the course  of his statement he, however, admitted  that in the case of respondent No.2, Shri B. L. Purohit voter cards had also been issued to the voters but went on to say that the same had been got printed by the BJP at  its own  expense and were distributed by the workers of the B.J.P. without any expense being incurred or borne by respondent No.2  himself. With  regard to the publication of the posters,  he deposed  that the  posters had been used by the returned  candidate extensively. Specimen of some of the posters were  produced as Ex.75 to Ex.78. PW1, asserted that the expenditure  for the  printing of  voter cards  and  the posters in  the case  of the returned candidate was borne by the first respondent himself and not by anyone else.      The appellants  in support  of their case examined PW41 Suresh Deotale  President of  Nagpur Gramin  Congress,  PW42 Baliram Dakhne  Cashier, PW43 Baburao Zade, Secretary of the Gramin Congress  and PW46  Marotrao Kumbhalkar, Treasurer of the Nagpur  District Congress Committee. The evidence of all these withnesses however reveals that the Congress Committee had   incurred    the   expenditure   for   publication   of advertisements, voters  cards, posters  etc.  In  connection with  the   election  of   the  returned   candidate.  These witnesses, however, admitted that the Congress party did not maintain any  account in respect of election expenses either for the local bodies, Legislative Assemblies, or Parliament. That  the   work  regarding   the  election  propaganda  and incurring of  election expenses  used to be entrusted to one or the other of the office bearers by the Party. In the case of the  election of  Datta Meghe, the witnesses deposed that the job  had been  entrusted to  PW43  Baburao  Zade.  These witnesses  further   deposed  that   money  for  undertaking election expenses was collected by the Congress Party in the form of  collection coupons.  That a  part of  the  election coupons were supplied by the All India Congress Committee in the demonination  of Rs.2/-  and Rs.5/-  while the rest were printed at  the  local  levels.  No  account  was,  however, maintained of  those coupons. The posters were also supplied by All  India Congress Committee and the Provincial Congress Committee. PW43,  Baburao Zade stated that Shakti Offset was one of  the printers who had undertaken the printing job and that the  orders for printing work had been placed by him on Shakti Offset  through Shri Parshonikar. He admitted that he was a  sitting MLA  at the  time of the election. He however was not  aware if  Parshonikar was  the Secretary  of Nagpur Shahr Zila  Congress Committee.  From The  testimony of PW41 President of  Nagpur Gramin  Congress it  emerges  that  the manner of  collection of  funds for  election  purposes  was through  sale  of  coupons.  The  witness  denied  that  not maintaining of any accounts of those coupons, was a practice devised only  for the  present election but asserted that it was a  practice which  used to  be followed  in all  earlier elections also.  He went  on  to  add  and  that  when  Shri Purohit, respondent  No.2, was  a Congress  Candidate in the Parliamentary elections  of 1984  and 1989,  the expense for his election  propaganda had  been incurred  by the Congress Committee also  by raising funds through sale of coupons and that no  account had been kept either of the coupons or even of the total expense incurred during those elections. He was emphatic that  the Congress  Committee did  not maintain any account in  respect of the expenditure incurred by the party

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in connection  with  the  elections  to  the  local  bodies, Legislative  Assembly   or  Parliamentary   elections.   The evidence of PW42 is almost on the same lines as that of PW41 and PW43  in all  material particulars. This witness further deposed that  he had  learnt from  PW43 Baburao Zade that an amount of  Rs. 40000/- had been paid to Parshionikar towards the election  expenses and that some posters had been issued by the  All India  Congress Committee also. The pass book of the Gramin  Congress which  was  produced  by  the  witness, revealed that  after the withdrawal of an amount of Rs.250/- on 26.9.90,  the next  withdrawal was  only  on  10.4.92  of Rs.3500/- and that no other amount had either been deposited or withdrawn by the party from the Bank. The evidence of the witnesses to  the effect  that funds  for election  expenses were collected  by sale  of coupons  and  donations  and  no account was  maintained of  the receipt  and expenses, thus, receives corroboration from the Bank Pass Book of the Gramin Congress. The testimony of PW43 which supports the testimony of PW41  reveals that  about  30000  to  40000  voter  cards besides some  handbills worth  Rs.2000/- to  3000/- had been got printed  by  the  Party  through  Shakti  Offset  Works. Explaining the  reason for  not maintaining  any account  of receipt and expense, the witnesses stated that since persons who  bought  the  coupons  or  gave  donations  were  mostly businessmen, who  generally paid the amount by cash, and did not want  any record of the payment made by them to be kept, the accounts  were not  maintained. PW44  Vishnu Dutt Misra, Vice-President of  the Nagpur  Nagar Zila  congress and PW45 Awari, President  of Nagpur  Nagar Congress Comittee deposed on the same lines as PW41 to PW43. PW46 Marotrao Kumbhalkar, the  Treasurer   of  the  Party,  further  stated  that  the responsibility for  the election  propaganda of the returned candidate in  the present  case  had  been  placed  on  Shri Parshonikar, who  was made  the Secretary  Incharge  of  the elections of  Respondent No.1  by the  Party.  According  to PW46. an  amount of  about Rs.14  lakhs had  been  collected through donations  and sale  of coupons,  out of which Nagar Congress Committee  had also  got coupons  worth about  Rs.7 lakhs printed and the remaining coupons worth Rs.7 lakhs had been received from the All India Congress Committee. The job for giving advertisement to the newspapers etc. on behalf of various  Congress  Committees  and  organisations  had  been entrusted to  Shri Parshionikar.  He admitted  that even  in 1989 when respondent No.2, Banwarilal Purohit, had contested the election  as a  Congress candidate,  an amount  of about Rs.12 lakhs  to Rs.14  lakhs had been collected through sale of coupons  and donations and the same had been spent by the Party for  the furtherance  of the  election  of  Respondent No.2, Banwarilal Purohit, without maintaining any account of receipt and expense.      Ashok Thakre  PW54, the  Manager of Shakti Offset Works deposed that  none of  the  candidates  had  approached  him personally  for   placing  orders   for  printing  work.  He disclosed the  names of the persons who had aproached him on behalf of different candidates to place orders in connection with  the   printing  of  posters  of  different  sizes,  as reflected in  Ex.75 to  Ex.78 and  asserted that  orders had been placed for the same by Shri Parshonikar and the posters had been  got printed  by Gramin  Congress for which purpose PW43 had  also approached him. He went on to state that Shri Parshionikar had  approached him  on behalf  of  Nagar  Zila Shehar Congress  and that  the printing work was got done by Shri Pande  on behalf  of  the  Yuvak  Congress.  PW54  gave details of  the  various  posters  printed  by  him  and  by reference to  ledger Ex.738/9,  stated  that  an  amount  of

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Rs.50000/- has  been shown  to have  been  credited  to  the account by  the President  Nagar Shehr Congress Committee on 13.5.91 under  five different  receipts, Ex.744  to 748, for Rs.10000/- each,  totally Rs.50,000/- He then deposed that a further sum  of Rs.50000/-  had been  received by  the press from Nagpur  Zila Congress Committee, Gramin-Vibhag and that a sum  of  Rs.50000/-  had  also  been  received  from  Zila Congress Committee (Yuvak) on 6.6.91 and 23.10.91. An amount of  Rs.10000/-   was  received  from  Nagpur  Zila  Congress Committee (I) Gramin also. That all these amounts were spent for  the   printing  work   entrusted  by  various  Congress Committees and  organisation of  the propaganda material for the  election   of  the  returned  candidate.  The  returned candidate in  his deposition  denied to  have authorised  or incurred any  expense as  alleged by the election petitioner in connection aither with the printing of voter cards or the posters etc.  and maintained  that he had not even taken the responsibility to reimburse the expenditure on behalf of any one and that no expenditure in that behalf had been incurred by any one with his consent either.      After considering  the evidence  in its totality in the light of  the pleadings  in the  election petition,  we find that the  election petitioner  has not  adduced any  cogent, satisfactory or  reliable evidence  to  establish  that  the expenditure of Rs.2,25,000/- and Rs.3,40,250/- as alleged in the  petition   had  been   incurred  and/or  authorised  by respondent No.1  for the  printing of  voter cards  and  the posters. On  the other  hand it  emerges,  that  the  entire expenditure on  that behalf  was undertaken and borne by the Congress Party and others and that it was so done as per the past practice also.      The argument  of Dr.  Ghatate however  is  that  Thakre PW54, the  Manager of  Shakti Offset  Works who  denied  the receipt of  any amount from the returned candidate could not be relied  upon because  there has  been some tampering with the record, including the ledger, and therefore it should be inferred that  he was helping the returned candidate. It was submitted by  the learned  counsel that even though PW54 was produced and  examined by the election petitioner, they were not bound  by his  entire evidence  and  that  once  it  was established that the record had been tampered with, the onus would shift  to the  returned candidate  to show that he was not responsible  for the tampering or that the tampering had not been  done at  his instance. This argument is fallacious and does not impress us at all. There is no material brought on the  record to  even suggest let alone establish that the tampering had been done in the record at the instance of the returned candidate. No sound foundation had been laid either in the  petition or  in the  evidence which may justify this court to  raise the  inference, which  the  learned  counsel invites us  to draw.  A similar  argument had been raised on behalf of  the appellants  in the  trial court  also and the learned  trial  Judge  found  that  the  allegation  of  the tampering of  the record  by  Shakti  Offset  Works  at  the instance of  the returned  candidate had  not  at  all  been proved, much  less satisfactorily.  The trial  court rightly found that  the practice  followed by  all political parties for printing of voter cards and posters had always been much similar and  the amounts  for the  said purpose  used to  be spent by  the political  parties by  sale of  coupons and by receiving  donations  and  even  when  respondent  No.2  had contested the  election as  a Congress  candidate  the  same practice had  been followed.  The election  petitioners have failed to  establish any  link between  the alleged expenses and the  returned candidate for printing and distribution of

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voters  cards   and  posters   and  have   not  brought  any circumstance  on  the  record  to  show  that  the  returned candidate had  any hand  in the  tampering of record or even that the tampering of the record was done for the benefit of the returned candidate only.      We wish, however, to point out that though the practice followed by political parties in not maintaining accounts of receipts of the sale of coupons and donations as well as the expenditure incurred  in connection with the election of its candidate appears  to be a reality but it certainly is not a good practice.  It leaves  a lot  of scope  for soiling  the purity of  election by  money influence. Even if the traders and businessmen  do not  desire their names to be publicised in view  the explanation  of the witnesses, nothing prevents the political  party and  particularly a National party from maintaining its  own accounts  to show  total  receipts  and expenditure  incurred,   so  that   there  could   be   some accountability. The  practice  being  followed  as  per  the evidence introduces the possiblity of receipts of money from the candidate  himself or his election agent for being spent for furtherance  of his  election, without  getting directly exposed,  thereby   defeating  the   real  intention  behind Explanation I  to Section  77 of  the Act. It is, therefore, appropriate for  the Legislature  or the Election Commission to intervene  and prescribe  by Rules  the  requirements  of maintaining true  and correct  account of  the  receipt  and expenditure by  the  political  parties  by  disclosing  the sources of  receipts as  well. Unless,  this  is  done,  the possibility of  purity of  elections being  soiled by  money influence cannot  really be ruled out. The political parties must disclose  as to how much amount was collected by it and from whom  and the  manner in which it was spent so that the court is  in  a  position  to  determine  "whose  money  was actually spent"  through the  hands  of  the  Party.  It  is equally necessary  for an  election  petitioner  to  produce better type  of evidence  to satisfy  the court as to "whose money it  was" that was being spent through the party. Vague allegations and  discrepent evidence may only create a doubt but then the charge of corrupt practice cannot be held to be proved on mere lurking suspicion or doubts.      Howsoever, undesirable  and objectionable  the practice might be,  the fact  remains that  the evidence  led by  the election petitioners  in this  case does  not establish  the charge levelled  by them  at all.  In  the  absence  of  any cogent, reliable,  satisfactory and  trustworthy evidence to show that  the respondent  No.1 or  his election  agent  had incurred or  authorised the  expenditure as  alleged in  the petition, the  trial court  rightly found  the issue against the election  petitioner and  we find  no reason  to take  a different view.  We therefore,  confirm the  findings of the High Court on the said issue.      ISSUE 5 (B) (V)      In para  2.20 of  the election  petition  it  has  been pleaded  that  respondent  No.1  had  sent  personal  inland letters to  all the  voters residing within the constituency and the  appellants had  calculated the  price of  each such letter as  Rupee One, inclusive of printing and postage. Two of  such  letters,  Annexures  13  and  14,  containing  the residential address of respondent No.1 allegedly received by Vijay Shinde  and Vinayak  Gode PW49  were annexed  with the election petition.  It was  alleged that respondent No.1 had made an  appeal through  the inland letters to the voters to cast their  vote in  his favour  on 12.6.91.  It was further stated that  though the letters were shown to have been sent by Sarva  Dharma Samajik  Sangathan, the expenditure for the

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same was  in fact authorised and incurred by respondent No.1 himself. It  was pleaded  that there  were 1240830 voters in the constituency and, therefore, respondent No.1 was alleged to have  incurred an  expenditure of  Rs.12,40,830/- on  the inland letters and he had not shown the expenditure incurred by him  in that behalf in the return of expenditure filed by him and  if the  said amount is included, it would show that the  returned   candidate  had   incurred   and   authorised expenditure beyond  the prescribed limits and thus committed the corrupt  practice under  Section 123  (6) of the Act. In the written  statement, the  returned candidate  denied  the allegations and  styled the  same as imaginary and baseless. He denied  to have  sent any  letter  to  Vijay  Shinde  and Vinayak Gode,  Annexure 13  and 14 respectively or to anyone else  in  the  constituency.  The  allegation  that  he  had incurred an  expenditure of  Rs.12,40,830/-  was  vehemently denied.  Respondent   No.1  stated  that  according  to  the information received  by him  after the  election, the Sarva Dharma Samajik  Sangathan had got printed about two thousand letters similar  to Annexure  13 and  14 and issued the same without his  approval or  consent and the entire expenditure must have  been borne  by the  Sangathan itself since it was neither authorised  nor incurred  by him  or by his election agent. It  was stated  that the  allegation in the paragraph were vague  and  general  in  nature  and  lacked  essential ingredients and  particulars and  the assention that all the voters in  the constituency  had received  the letters  from respondent No.1 was based on speculation and conjectures and not on facts.      In the original written statement filed by the returned candidate in  reply to  para 2.20,  it appears that while he denied the  "sending" of  the inland  letters  identical  to Annexures 13  and 14,  there was  no specific denial made by him regarding  his signatures  allegedly appearing  on those letters. In the amended written statement, a specific denial was also  incorporated stating  that the respondent No.1 had not signed  those letters and that inadvertantly it had been omitted to  be mentioned  in the  earlier written statement, while denying  the sending  of the  inland letters. Thus, in the amended  written statement  there was denial both, about the signatures  as well as the sending of the letters by the first respondent  to the voters. Respondent No.1 also denied to have incurred or authorised any expenditure in connection with the printing and postage of those inland letters.      Appellant No.1 Bapat, appearing as PW1 in his statement asserted that each one of the voters in the constituency had received such  an inland  letter from  respondent No.  1 but admitted during  his cross  examination that  he had no idea whether the  letters had  actually been  signed by the first respondent or  by someone else. The petitioner also examined Shri JD  Kotwal PW56  as the Hand-writing Expert to identify the signatures  of Respondent  No. 1  on Annexures 13 and 14 (Ex.79 and  80), and  to compare  the same with the admitted signatures of  the first respondent. The Hand-writing Expert PW56, however,  did not  support the  case of  the  election petitioner and  deposed that  no opinion  could be expressed regarding  the  authorship  or  otherwise  of  the  disputed signatures on  Ex.79 and  80 (Annexure  13 and 14). With the denial by  respondent No.1  that he had neither signed those letters nor  sent any such letters to the electorate and the evidence of  the Hand-writing  Expert PW56,  the  appellants must be  held to  have failed to prove that the letters like Annexures 13  and 14  were signed by respondent No.1 or that he  was   responsible  for  sending  those  letters  to  the electorate. The  argument of  Dr. Ghatate  that even  if the

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letters had  not been  signed by  respondent No.1, but since the same  had been  sent as  an appeal  to vote  for him, it should be  presumed that he was the author and sender of the letters, does  not appeal  to us.  The court can only decide the case  on the  basis of  the evidence led and not on what ought to  have been  led. In  the instant case, the election petitioners have  failed to examine any witness to show that the letters  (like Annexure 13 and 14) had in fact been sent by respondent  No.1 to  the electorate. The letters were, on the face  of it, sent by the Sangathan. No evidence has been led to  show that  the money spent by the Sangathan had been provided by respondent No.1 either or that the Sangathan was a non-existant  body. The  allegation has  remained  totally unsubstantiated. It  was certainly  not obligatory  for  the returned candidate under the circumstances, to have produced any witness  from the  Sangathan to prove that Sangathan had sent the letters on its own or that it had also incurred the expenditure  itself.   Since,  the   case  of  the  returned candidate categorically  had been  that those  letters  were neither signed  by him  nor sent by him nor did he incur any expenditure in  respect thereof,  it was  for  the  election petitioners to  establish the charge by leading reliable and satisfactory evidence.  The evidence of appellant Bapat PW1, to the  effect that  he had  made inquiry  from the  Charity Commissioner and  learnt that  there was  no such  Sangathan registered with  the Charity  Commissioner, to urge that the Sangathan was  a ‘fake’  organisation and  was not a genuine society, ignores  the fact  that the  registration of such a Sangathan is  not necessarily  to  be  done  only  with  the Charity Commissioners.  The petitioner  admittedly  made  no inquiry from  any other  quarter to  find out whether or not the Sangathan was in fact in existence or not. The intrinsic evidence of the document shows that the letters were sent by the Sangathan  and keeping  in  view  the  evidence  of  the handwriting expert,  it appears  that the  letters bore  the name of ‘Datta Meghe’ and not his signatures. The petitioner could have  produced some witness from the Sangathan to show that no  such letters  had been  sent by  the Sangathan. The petitioners did not even summon a witness from the Sangathan alongwith the  record. Had  it been  done and if the summons could not  be served because of the alleged non-existence of such  a  Sangathan,  it  may  have  been  possible  for  the petitioner  to   argue  that   the  Sangathan   was  a  fake organisation and  that an  inference may  be drawn  that the letters had  been sent by respondent No.1 at his expense but no such  inference can  be drawn in favour of the appellants in view  of the  facts and  circumstances  existing  on  the record. Respondent  No.1 had  disclosed  the  name  of  Shri Bhasme as  one of  the officers  of  the  Sangathan  in  his testimony and  the appellants  should have sought permission of the Court to summon Shri Bhasme at that stage atleast but they did  not do  so for  reasons best known to them. We are unable to  agree with  Dr. Ghatate, that the evidence should have been  led by  the  returned  candidate  to  prove  that actually the  letters had  been sent  by the Sangathan after incurring the expenses itself and the petitioners should not be expected  to lead  such evidence.  The onus  to prove the charge was on the election petitioners and in the absence of any satisfactory  evidence adduced  to discharge  that onus, the returned candidate was under no obligation to prove that he was  not responsible for committing the corrupt practice. Again, it  is not  the  case  of  the  appellants  that  the expenditure had  been incurred  by the  Sangathan, with  the consent of  the returned candidate or his election agent nor is it  their case that the returned candidate had undertaken

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to reimburse  the expenditure incurred by the Sangathan. The trial court,  in our opinion, after properly considering and appreciating the  evidence rightly  found that  there was no evidence on  the record  to support  the plea that the first respondent had  spent the  amount as  alleged on the postage and printing  of the inland letters of the type, Annexure 13 and 14  (Ex.79 and  80) or that he had sent those letters to every voter  in the  constitutency. From the material on the record, there  is no  scope even to raise a strong suspicion against the  first respondent in that behalf. The appellants appear to  be labouring under the wrong impression that once they make  an allegation  against  the  returned  candidate, their responsibility  is over  and it  is for  the  returned candidate  to   prove  his  innocence.  It  is  against  the essential  principles  of  election  law.  At  the  risk  of repetition it  may  be  stated  that  where  allegations  of corrupt  practice  are  alleged,  it  is  for  the  election petitioners  to   prove  the  charge  against  the  returned candidate beyond  a reasonable  doubt to the satisfaction of the court. The obligation of the returned candidate to rebut the allegations  by leading  evidence arises  only after the election petitioners have led dependable evidence in support of the  charge of  corrupt practice  and not  till then. The appellants have  in the  present case  failed to  do  so  in respect of  the charge  relating  to  issue  No.5(b)(v)  and accordingly we  agree with  the High Court that the returned candidate was  not required  to refute the charge by leading evidence on  this behalf.  The issue  is accordingly decided against the  appellants and  we confirm  the finding  of the High Court. Issue No. 5(b) (vi) & (vii)      These two  issues relate  to the publication of certain advertisements in  various newspapers  such as Nagpur Times, Nagpur Patrika, Nav Bharat Times, Tarun Bharat among others. There is  some connection  between these  issues and  issues 6(a), (b)  and (c),  which we  shall deal  with  separately. According  to   the  election   petitioners,  the   returned candidate had  opened an  account  with  Nav  Bharat  Times, Nagpur Times  and Nagpur Patrika and had incurred an expense of  Rs.   4,89,424.00  for   the  publication   of   various advertisements in  connection with  his  election  in  those newspapers but  the said  amount was  not  included  in  the return of  expenditure and  that had the same been included, the returned  candidate would  be  shown  to  have  incurred expenses beyond  the permissible limits. The break up of the amount (Rs. 4,89,424.00) allegedly incurred or authorised by the returned  candidate as  given by  the appellants  is  as follows: (1) Nav Bharat Times    = Rs. 2,61,274.00 (2) Nagpur Times & Nagpur     Patrika             = Rs. 2,28,150.00 It was  alleged in  the election  petition that the returned candidate had  an account,  Code No.  M-0042 (Ex. 441), with the Newspaper  Nav Bharat Times and though it was shown that the  expenses   for  the  advertisements  published  in  the newspapers were borne by Nagpur District Congress Committee, Gramin Congress  Committee and  some other organisations and individuals, but  in fact  the payments had been made out of the amounts  provided for  by Respondent  No. 1  to the said Committees, organisations  and individuals.  In the  written statement Respondent  No. 1  denied that  he had incurred or authorised any  expenditure himself  or through his election agent in  respect of the various advertisements appearing in Nav Bharat Times, Nagpur Times and Nagpur Patrika as alleged in the  election petition.  It  was  also  denied  that  the

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advertisements had been published at the instance of or with the knowledge  of Respondent No. 1 or that he had placed his funds at  the disposal  of the party and others to discharge the  liability   arising  out  of  the  publication  of  the advertisements.      We  shall   first  take   up  the  publication  of  the advertisements in  Nav Bharat  Times for which it is alleged that an  expenditure of  Rs.  2,61,274.00  was  incurred  or authorised by Respondent No. 1.      PW6 Narayan  Gawalani, the  Manager of Nav Bharat Times while appearing  as a  witness for  the election  petitioner deposed that  the newspaper  receives advertisements through advertising agencies,  organisations  and  individuals.  The agencies  which   had  released  advertisements  during  the elections were  Prasad Publicity,  Yugdharma Consultants and Commercial Services  (Y.C.C.S).  For  Prasad  Publicity  and Y.C.C.S. they  had a  running account  while Congress had no running account  with Nav  Bharat.  He  then  explained  how various advertisements  appearing in  the paper  came to  be published and  disclosed the sources from which the same had come and  also identified  the person  or party who had made payments in  respect of  those advertisements. He went on to depose that  whenever the advertisements were received, they were entered  in a  register called  the "RO Input Register" but the  same had  not been  preserved and  had  since  been destroyed. That  there was  no other proof pertaining to the receipt and  publication of  advertisements. He produced the ledger and  proved various  advertisements, release  orders, bills etc.  During his  cross-examination, he was confronted with various receipts and he went on to say        "None of  the advertisements  of which      the total works  out to  Rs. 26690/-  as      stated   above were   given   by   Datta      Meghe. The   payment also  was not  made      by       Datta   Meghe       for   those      advertisements.     nor  did    he  take      responsibility      for   making   these      payments." While explaining  the document  Ex. 407 and the existence of words "(Datta Meghe Election advertisements)" written in ink in the copy of Ex. 407, he expressed ignorance as to when or by whom  those words  were inserted  in the  office copy. He admitted that in respect of Ex. 409A, the words "Datta Meghe Account" did  not appear  in the original of the receipt but could not say as to who had written those words in the copy. The witness  in  response  to  the  question  regarding  the association of  Respondent No.  2, with  the partners of the firm stated        "I know  Ramgopal Maheshwari,  Prakash      Maheshwari. They  are the   partners  of      the firm   which  owns Nav Bharat. It is      true that  on many  common social formus      they and  Respondent  No.  2  Banwarilal      Purohit are  together. I  do not know if      they belong  to  the same  community. It      is   not  true  that  our management has      forged the  duplicates of  receipt books      at the  instance of   Banwarilal Purohit      in order  to boster  his false  claim in      the petition."      The witness  categorically asserted  that "M  00042" is the code  number  of  "Datta  Meghe  Election  Advertisement Account" and  that all payments against the said code number and account  had been  received from  Nagpur Shahar District Congress-I Committee  and that  no payment was received from

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Datta Meghe or from anyone else on behalf of Datta Meghe. PW7, Shri  Sapre, Manager,  Accounts of  Nav  Bharat  Times, deposed that Manmohan Maheshwari is the Editor of Nav Bharat Times. That  receipt Ex. 406 was issued first in the name of Datta Meghe  but later  on it was corrected to show the name of the party as Congress Committee and it was done under his instructions because  it had been brought to his notice that payment had  not been  made by  Datta Meghe  but  by  Nagpur Shahar Indira  Congress Committee.  He went on to state that the original  receipt Ex.  406-A  was  signed  by  Kulkarni. Explaining the difference in scoring of certain words in the carbon copy Ex.406-A and its original Ex. 406-A, the witness stated  that   he  had   scratched  the  original  name  and substituted it  with the  name of Shahar Congress Committee. He, however,  could not  state as  to who did the scoring in the original  receipt Ex.  406-A, because  the same  had not been done  by him.  When his attention was drawn to a number of other  receipts and  their carbon copies and particularly the entries thereon, with a view to point out the difference between the  entries in  the originals  and the  copies, the witness stated  that  since  receipts  had  been  issued  by different persons  like Kulkarni,  Prabhakar and  others, he could not  explain the  reason as to why the corrections had been made  but asserted  that the  corrections had  not been made only  in the case of the receipts concerning Respondent No. 1  but such corrections had been made also in respect of the receipts  issued in  favour of some other candidates and all such  corrections were made in routine. The witness then categorically admitted      "We do  not have any personal account of      the respondent  No. 1   Datta  Meghe  in      the   account books.   Except   for  the      ‘Datta  Meghe    Election  Advertisement      Account’ there   is  no other account in      Datta Meghe’s  name. The receipt Ex. 406      was fully  written  by Kulkarni  when it      came to  me, and  it bore  the two  bill      numbers,  and that  was  also  the  case      with original  Ex.   406-A. I   did  not      check up  in whose  names the  two bills      mentioned therein,  stood. They had been      checked     by     the     Advertisement      Department."      PW8 Pannalal  Poddar was working as an Assistant in the advertisement department of Nav Bharat Times at the relevant time.  He   deposed  that  a  subsidiary  ledger  was  being maintained in  the advertisement  department  and  that  the bills which  were prepared  by the  advertisement department were entered  in the said ledger against the accounts of the concerned  parties   and  that  he  used  to  maintain  that register. He  stated that  at page  496 of the ledger, there exists an  account in  the name  of  "Datta  Meghe  Election Advertisement Account"  and that  the said  account had been written up  to page 498 under the same title. He stated that out  of   the  writing  "Datta  Meghe  Election  Advertising Account" Nagpur, the words "Datta Meghe, Nagpur" were in his handwriting but  the remaining words "Election Advertisement Account" were  not in  his handwriting and he could not even identify the  author of  the words  "Election  Advertisement Account" in  the above entry. He stated that entry regarding bill No.  9101007  of  May,  1991  for  Rs.  10,000/-  stood originally in  the name  of Datta  Meghe but  that name  was scored out  later on  but he  could not  say as  to who  had scored out  the name  and susbsituted  the same  by  "Nagpur Congress". That the scoring in the enteries had been done in

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Bill Nos.  9101007, 9101343,  9101439 and  9101940  also  by substituting the  name of  Datta Meghe  with Nagpur Congress and Nagpur Shahar Zila Congress-I. He, however, did not know as to who had made the corrections or even the time when the same had  been made  or the  reason why  they had been made. During his  cross-examination, he  admitted that  there were neither  any  erasers  nor  corrections  in  the  subsidiary register in  regard to the four bills (above noted) and that the entries  in that  register had  been made  within 5 to 7 days  of   the  issuing   of  the   receipts.  The   witness specifically admitted  that it  " is  not possible to say by referring to  the account  whether payment  was received  in this account  through  any  other  organisation  except  the Congress Committees."      Respondent  No.   1  appearing  as  R1W1  deposed  that Parshionikar had  been entrusted  with the  work of  issuing advertisements on  behalf of  the Congress  Committee.  That Parshionikar was  a man of his confidence. He denied that he had  himself   entrusted  any  job  of  publication  of  the advertisements in the newspapers to Parshionikar. He went on to add  that he  had not  asked Nav  Bharat Times  to open a separate account  for his election advertisements and denied any knowledge  whether  Nav  Bharat  Times  had  opened  any account as  "Datta Meghe  Account". He denied the suggestion that Account  No. M-0042 had been opened by him initially in the name of "Datta Meghe Account" but was lateron converted, at his  instance,  to  the  name  of  "Data  Meghe  Election Advertisements Account"  to escape  the rigours  of law.  He went on  to asert that he had not given any advertisement to Nav Bharat  Times nor  had he  paid any  amount to  the said paper.      Dr.  Ghatate,   learned  counsel   appearing  for   the appellants argued  that since  there was  an account  in the name  of   Datta  Meghe,   being  Account  No.  M-0042,  and admittedly the  District Congress  Committee had  no account with Nav  Bharat Times,  the inference  was obvious that the assertion of  the returned  candidate that  neither  he  had issued any  advertisements in  Nav Bharat  Times nor  did he make any  payment for  the same  or even agreed to reimburse the  expenses   incurred  for   the   publication   of   the advertisements  in  the  said  paper  was  not  correct.  He submitted that  the interpolations  made in  the copy of the receipt Ex.  406 and  its original Ex. 406-A was a tell tale example of  the tampering  of the record by Nav Bharat Times with a  view  to  help  Respondent  No.  1  to  conceal  the incurring  of   expenditure  by  him  and  that  an  adverse inference should  be drawn  that all the scoring etc. by the employees of  Nav Bharat  Times only  with a  view to favour Respondent No.  1,  In  support  of  the  argument,  learned counsel pointed out that receipt Ex. 406 dated 17.5.1991 was initially issued in the name of Datta Meghe and subsequently in the  original receipt  Ex. 406A,  where the  name of  the party had  been initially  left blank,  the name of Congress Committee was  written even  though in  the carbon copy, the name of the party continued to be shown as Datta Meghe which was also later on interpolated and substitued to read "Datta Meghe  Election   Advertisement  Account".  Learned  counsel submitted that  from the  fact that the original receipt Ex. 406A, was  produced  during  the  cross-examination  of  the witness by  the  counsel  for  Respondent  No.  1  the  only explanation for  the original  receipt Ex. 406-A being found in possession of Respondent No. 1, could be that he had made the payment  and kept the receipt, as otherwise there was no occasion for  the original  receipt to  be  found  with  the counsel for the returned candidate.

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    Thus, wherever  it was  found that  the involvement  of Datta Meghe  could be  proved, his  name was  scored off and replaced by  Congress Committee  etc. by  Nav Bharat  Times. According to Dr. Ghatate even if Datta Meghe himself had not placed any order for issuance of any of to the newspaper, it was out  of the  funds provided by him that the payments had been made  and therefore  the returned  candidate  would  be deemed to  have incurred  the said  expenditure. Though  the arguments of  Dr. Ghatate  appear on  the first  blush to be attractive but  they do not bear close scrutiny. Had receipt Ex. 406-A,  which is  the original  of receipt  Ex. 406 been with Respondent  No. 1,  containing a  blank entry which was later on filled up as District Congress Committee showing it as the party making the payment, there was no reason why the same entry  could not  appear in the carbon copy Ex. 406, if the employees  from Nav  Bharat Times  were  out  to  oblige Respondent No.  1. The  explanation given  by the  witnesses from Nav  Bharat Times regarding the appearance of different names in the original and the carbon copy, cannot be said to be  wholly   unacceptable,  particularly   in  view  of  the attendant circumstances.  The possibility that interpolation was made  in the  copy of  the receipt  Ex. 406,  to  create evidence against the returned candidate also cannot be ruled out   particularly in  view of the association of respondent No. 2  with the  management of  Nav  Bharat  Times.  If  the original Ex.  406A contained  the name of Congress Committee and the  entry in  the carbon  copy had  been left blank, it could have  been filled up by adding the name of Datta Meghe That apart,  the receipts  Ex. 406-A and its carbon copy Ex. 406 relate to payments made in respect of two bills based on two distinct  release order.  Neither the correctness of the release orders,  admittedly not  issued by  Datta Meghe, nor the authenticity  of the  relevant bills,  which bills again had not  been drawn  in the  name of the returned candidate, has been  doubted by the appellants. Therefore, much capital cannot be  made out  of the difference of the entrfes in the original and  the carbon  copy of receipts Ex. 406-A and Ex. 406, when  it is  not disputed  that Ex.  406  was  actually issued  in   the  name  of  Nagpur  Shahar  Indira  Congress Committee. It  is also  pertinent to  notice here  that  the appellants have  led no evidence whatsoever to show that any order for  advertisement had been placed by Respondent No. 1 himself or  by his  election  agent with Nav Bharat Times in respect of  either of the two release orders or bills. Not a single bill,  out of  the massive  record  produced  by  the appellants, is  in the name of the returned candidate. There is not a single receipt of payment issued in the name of the returned candidate either. The witnesses appearing on behalf of  the   petitioners  have   categorically  asserted   with reference to  the record  that no  amount had  been paid  by Respondent No.  1 for any of the advertisements published by them in  their  newspapers.  The  learned  Trial  Judge  has elaborately  considered   various  documents  to  which  his attention was drawn and the arguments raised on the basis of the so-called  interpolations etc.  on some of the documents and concluded  that  there  had  been  some  errors  in  the mentioning of Code numbers in some receipts etc. But rightly found  that   the  first   respondent  could   not  be  held responsible for  any of  those interpolations.  No  evidence direct or  circumstantial has been led by the petitioners to support the  charges levelled against the returned candidate to the effect that the returned candidate had provided funds to the party and it was his money which was paid through the hands of  the party.  The allegation has remained absolutely unsubstantiated. As  a matter  of fact,  the evidence led by

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the election  petitioners instead  of supporting their case, has to  a large  extent, demolished  the same  in as much as none of the witnesses have contradicted the assertion of the returned candidate  that he  incurred no expense, other than that which  he had  disclosed in  the return of his election expense. The  Trial Court  therefore, rightly  held that the expenses in  respect  of  all  the  advertisements  (subject matter of  the issues)  which were  published in  Nav Bharat Times could  not be said to have been incurred or authorised by the first respondent. We find that the conclusion arrived at by  the Trial  Court  is  based  on  correct  and  proper appreciation of  the evidence  and learned  counsel for  the appellants has been unable to point out any flaw or error in the reasoning of the learned Single Judge of the High Court. We, accordingly uphold the finding of the High Court.      We shall  now consider  the allegations  regarding  the expenditure  allegedly   incurred  in  connection  with  the advertisements which  appeared in different issues of Nagpur Times and  Nagpur Patrika  for the  election of the returned candidate.  It   is  not   disputed   that   none   of   the advertisements were issued by the returned candidate himself nor any  bill was  drawn against him nor any     payment was received  from  him.  These  advertisements  appeared  under different names.  For example, the advertisements, Ex. 84/13 and 84/15  appeared in the name of a "Well Wisher". The bill for those  advertisements, Ex.  474, was drawn by the Nagpur Times  /Nagpur  Patrika  combined  in  the  name  of  "Nitin Furnitures" and  the receipt  of payment,  Ex. 475  was also drawn in  the name of "Nitin Furnitures", Nagpur. Similarly, two advertisements  dated 8.6.1991 published in Nagpur Times being  Ex.  84/14  and  85/15,  were  published  by  "Punjab Woodcrafts". The  bills in respect of the same were drawn in the name  of ‘Punjab  Woodcrafts’ for  Rs. 15,000/-  and the receipt, Ex.  477 dated  14.9.1991, also  shows the  name of M/s. Punjab  Woodcrafts  as  the  party  who  had  made  the payment. The  advertisement issued  in the Nagpur Times, Ex. 84/15 and  in Nagpur Patrika, Ex. 85/16 were again published by a  "Well Wisher"  and the  bill Ex.  478 dated 30th June, 1991 for  the said  advertisement was  issued in the name of "Ranjit Engineering Works" and the receipt, Ex. 479, for the same was also issued in the name of Ranjit Engineering Works (by mentioning  its  Code  No.  ICR-0436).  Again,  for  the advertisements published  in Nagpur Times and Nagpur Patrika dated 10.6.1991,  by a  "Well Wisher", the bill was prepared in the  name of  "Talmale Bandhu"  on 30th June 1991 and the receipt in respect of the said bill dated 14.9.1991 was also issued in favour of "Talmale Bandhu".      The appellants  examined Shri  Mahendra Bangarde  PW 40 who was  working as  the Finance  Manager with  Nagpur Times since 1983.  He stated  that Ms. Neelima used to work as the Data Operator.  She, however,  was not  the examined  by the appellant. He  proved various  entries in the ledgers, bills and receipts concerning publication of advertisements in the Nagpur  Times.   He  did   not  state   that  any  of  those advertisements had been published either by Respondent No. 1 or by  his election  agent or  that any  payment in  respect thereof had  been made  by Respondent  No. 1 or his election agent nor  even that  respondent NO. 1 or his election agent had taken  the responsibility for making the payment for the concerned advertisements.      Santosh Sarode  PW9 was  working as the Manager General (Coordination) with  the Nagpur  Times at  the relevant time and deposed that he knew about the advertisements which were published in  the Nagpur Times and Nagpur Patrika during the last  Lok   Sabha  elections.   He  deposed   that   various

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advertisements which  had appeared  in the  Nagpur Times  in support of  the election  of the returned candidate had been published at the instance of Shri Parshoinkar, who had taken the responsibility  for settling  the bills  in  respect  of those   advertisements. He went on to say that it was at the asking of  Shri  Parshoinkar  that  bill  Ex.  474  for  Rs. 15,000/- dated  30.6.1991 was  drawn in  the name  of ’Nitin Furnitures’. The  payment for  the said bill was received on 14.9.1991 from Nitin Furnitures. He admitted that the Punjab Woodcrafts had an account with the Newspaper and that it was their represntative  who had        requested them  for  the publication  of   an  advertisement   for  which  also  Shri Parshoinkar had  taken the responsibility for making payment and that  later on  Shri Parshoinkar  had brought the amount and paid  the same  on  behalf  of  Punjab  Woodcrafts.  The witness  stated   that  according  to  his  knowledge,  Shri Parshoinkar was  an office  bearer of the Congress Committee and admitted  that payments  for some  other bills also were made by  Shri Parshoinkar  on behalf  of various  parties as well as  on behalf  of the  Congress Committee. Referring to the corrections  made  in  the  Code  numbers  appearing  in certain bills,  the witness  stated that he had no knowledge as to  who had  made those  corrections or  overwritings and when the  same were made but categorically asserted that all the payments  had been  made only  by Shri  Parshoinkar. The witness admitted  that there was an account styled as "Datta Meghe Election Advertisement Account" with his newspaper and that the  Nagpur Shahar District Congress Committee also had a  separate   account  with   his  paper.   Explaining   the corrections made  in respect  of recipts No. 779, 825, 1026, 1356 which  had been  first shown credited in the account of "Datta Meghe  Election Advertisement  Account", the  witness stated that  it was  the  Nagpur  Shahar  District  Congress Committee, who  had  asked  the  newspaper  to  publish  the advertisements and had also undertaken the responsibility to make the  payment for  the same  and since the said Congress Committee had  also an  account with them directly, they had transferred  the   "amounts"  from   "Datta  Meghe  Election Advertisement Account"  to  the  account  of  Nagpur  Shahar District  Congress  Committee,  as  the  advertisements  had actually emanated  from the  Congress Committee and payments had also  been made  by the  Congress Committee. The witness explained that  initially in  their records  all the amounts which  were  being  received  from  Nagpur  Shahar  District Congress Committee  as well  as from Nagpur Gramin Committee were being  credited in the Account of ’Datta Meghe Election Advertisement Account’  but lateron  the same were corrected to  accord   with  the   actualities  and  credited  in  the appropriate  Account   of  the  party  responsible  for  the advertisement and  payments. The  witness stated  that since Shri  Parshoinkar   had  brought   the  payments   for   the advertisements   from    the    Nagpur    Shahar    District CongressCommittee, Nagpur  Gramin Congress  Committee, Nitin Furnitures, Punjab  Woodcrafts, Ranjit Engineering Works and Talmals Bandhu  there had  been  some  confusion  about  the mentioning of  the Code  Numbers in various receipts. During his, cross-examination,  the witness  categorically asserted that  no   payments  were   made  by  Datta  Meghe  for  the advertisements which  were released  by Prasad publicity nor had Datta Meghe taken the responsibility for making payments in respect  of those  advertisements.  Thus,  we  find  that according to  the witnesses  examined  by  the  petitioners, neither  Datta   Meghe  had  issued  any  advertisement  for publication nor  had he  made any payments in respect of the advertisements issued  at the  instance of different parties

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in the newspapers.      Respondent No.  1 during  the course of his examination asserted:        "I  had   not asked   any of  the news      papers to   open  an account in  my name      in respect of the advertisements, during      the election   period. Neither did I ask      my election  agent or  any one  else  to      open such  an account  on my  behalf.  I      have no  account in   my  name  as Datta      Meghe with   any  of   the  news papers,      because   I never  asked such account to      be opened.  I learnt  yesterday  that an      account had  been opened  in my  name by      Janvad,   only yesterday.   I   do   not      know   whether   that account  had  been      opened   during the  election period. It      is not  true that  I had opened personal      accounts in  my name  with  Nav  Bharat,      Nagpur Times    and  Nagpur  Patrika  in      relation to  the advertisements   during      the election.  It is not true that I had      asked the   entries which  stood  in  my      name   to   be transferred  in  the name      of the   Congress  Committees. It is not      true   that I   supplied  the  funds for      publishing   these  advertisements    to      the    Congress   Committees,   or   the      institutions or individuals who made the      payments."      The assertion  of the  returned candidate finds support from the  witnesses produced  by the  petitioners concerning the advertisements  published in  Nagpur  Times  and  Nagpur Patrika.      The argument  raised by  Dr. Ghatate  in respect of the advertisements published  in Nagpur Times and Nagpur Patrika was only  a repetition  of the arguments raised on behalf of the election  petitiones in  the Trial  court.  The  learned Single  Judge,   after  examining  minutely  various  bills, receipts, advertisements  and entries in the ledgers etc. as also analysing  the oral  evidence, came  to the  conclusion that the  election petitioners  had failed  to establish the charge levelled  against Respondent No. 1 to the effect that he was  responsible  for  the  publication  of  any  of  the advertisements or  that he  had incurred  or authorised  any expenditure himself  or through  his election  agent or even that the  funds allegedly  provided by him had been utilised to discharge  the liabilities. The High Court found that the returned candidate  could not  be connected  with any of the interpolations or tampering with the record of the newspaper either and observed :                "The question,    however,  is      whatever may  be  the reasons  for   the      manipulation,   can  the  liability  for      manipulation be   fastened on  the first      respondent.  Merely because there  was a      change in   the  names  in the bills and      there was   every  good  reason for  the      name   of  the  first respondent, if  it      had     appeared  in     the    original      document being  suppressed    and  there      was a   Datta Meghe  Advertising Account      0056   in the  book of  Nav Samaj  Ltd.,      it  cannot  be  said  that    the  first      respondent’s name   had  appeared in the

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    original  bill     and  that,  that  was      removed and  new names were substituted.      The    mater  cannot    rest  merely  on      surmises. The persons, who  had actually      accepted the  advertisements,  were  not      examined.   Though  Sarode’s    version,      when  it   comes  to   be  against   the      interest of  the respondent No. 2. would      have to  be considered   with more  care      and     caution  for   disbelieving  the      version that  the first  respondent  was      not concerned  with  the  advertisements      some positive evidence was necessary. On      the other   hand, the  positive evidence      is that   the  first respondent had  not      given  these advertisements  and had not      accepted the   responsibility for  these      advertisements.   None    from   Talmale      Bandu,  Punjab    Wood  Craft,    Ranjit      Engineering Works  and   Nitin Furniture      was called   as  a witness  to show that      they had  not given  the advertisements.      If such  evidence were  led,    then  an      inference could  have legitimately  been      raised that   since  they  had not given      these advertisements,  they must    have      been   given by  the  first  respondent,      because he  would   be the   person  who      would be  really interested in advancing      his   own cause.  on their own, may come      forward for  giving the  advertisements,      without   any apparent  motive,  in  the      circumstances,   though  there    is  no      reason to  doubt the  evidence that  the      names in  the  bills  and  the  receipts      issued by  Nav   Samaj Ltd.    had  been      changed in  order to  conceal  the  real      advertiser,   I find  that that evidence      by itself is not sufficient  to   clothe      the    first   respondent     with   the      responsibility     of     giving     the      advertisements."                                             (Emphasis added)      We find  ourselves in complete agreement with the above opinion of  the High  Court.  Relevant  witnesses  were  not examined by  the election  petitioners for reasons best know to them.  The appellants  have offerred no explanation, much less a  satisfactory one, as to why those witnesses who were relevant and  were likely  to shed some light were withheld. The evidence  led by the appellants is not only insufficient but also  confusing, contradictory  and often destructive of the case  set up by the petitioners. We are hesitant, in the face of the evidence on the record, to take a view different than the  High Court.  On the basis of the above discussion, Issue 5(b)  (vi)&(vii), except  to the extent we shall refer to  certain  items  lateron,  are  held  not  to  have  been established by  the election  petitioners and  the same  are decided against them. Issue No.6 (a).(b)&(c)      In para  2.23 A  of the  amended election petition, the case projected  by the  election petitioners  was  that  the returned candidate,  respondent  No.  1,  had  got  released various advertisements  through  Yugdharma  Consultants  and Commercial services  for publication in the newspaper ’Tarun Bharat’. A Statement, Annexure 18-A, indicating the bills in

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respect  of   the  advertisements   allegedly  released   by respondent No.  1 in the said newspaper was filed and it was alleged that  an amount  of Rs. 2090.00 had been received by Tarun Bharat  towards the  advertisement  expenses.  It  was pleaded that though some of the bills had been been drawn in the name  of respondent  No. 1 himself and he had been shown to have settled those bills by making payments thereof, some of the  other bills  were fictitiously shown under the names of certain  dummy organisations  or individuals,  though the payment  in   respect  of   each  one   of  those  items  of advertisements was  also made  by respondent  No. 1  himself and/or by his election agent, Shri Sudhakar Deshmukh, during the period  25.4.1991 to  16.6.1991 and all that expense was suppressed from  the return  of election  expenses. In  para 2.23/B of  the amended  petition, it  was pleaded  that  the advertisement details  where of  were contained in Annexures 18-B and  18-C, had  also been  released for  publication by respondent No.  1 himself and/or by his election agent or by the individuals/organisations and others under the authority of Respondent  No. 1 and or his election agent. to the daily newspaper Hitvada,  through Orange  city Advertising, Nagpur and prasad  Publicity, Nagpur  respectively and an amount of Rs. 40,000/-  and 23,520/-  had been paid to Hitvada towards the charges  of those  advertisements  through  orange  city Advertising and  prasad Publicity  respectively.  That  even though the  bills for  the amount  were drawn in the name of certain organisations, and individuals actually the payments in respect  of each  one of  the bills,  had  been  made  by Respondent No.  1 himself  and/or his  election agent,  Shri Sudhakar Deshmukh,  but the returned candidate had failed to include the  said expenditure  in the return of his election expenses.      In Paragraph  2.23 C  of the amended election petition, by reference  to the  statement contained  in Annexure 18-D, detailing  the   advertisements  released   through   Prasad Publicity  to  Tarun  Bharat,  it  was  pleaded  that  those advertisements had  been issued  by  respondent  No.  1  for publication in  Tarun Bharat  and an  amount of Rs. 71,440/- had been  paid to  Tarun Bharat  towards the  publication of said advertisements  and even  though some of the bills were drawn in the name of Respondent No.1 himself and he made the payments thereof,  the other  bills  had  been  fictitiously drawn in  the name  of certain organisations or individuals, though in  fact the payment in respect of the same were made either by  Respondent No. 1 himself or by his election agent shri Sudhikar  Deshmukh  and  that  an  expenditure  of  Rs. 71.440/- in  that behalf  was not  included by  him  in  the return of election expenses.      The returned  candidate in his written statement, while admitting the  publication of  some of the advertisements in Tarun Bharat,  the expenditure  where of he had shown in the return of  election expenses,  denied that  he had  made the payments of  Rs. 2090.00  to  Tarun  Bharat  as  alleged  in paragraph 2.23  A (Annexure  18A) or  had even asked them to publish the  concerned advertisement. He also denied that he had authorised  or incurred  an expenditure  to the  tune of Rs.40,000.00 and  23,520.00 as alleged in para 2.23 B of the amended election  petition in  respect of the items detailed in Annexure  18 B  and 18  C. In  reply to  para 2.23 C, the returned candidate  denied to  have incurred any expenditure himself or  though his  election agent  or with  his consent through any  other organisation,  association or  individual for the advertisements, as itemised in Annexure 18-D, to the election petition.  He asserted  that  no  expenditure  with regard to  the publication of the alleged advertisements had

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been incurred  or authorised  by him  and  he  categorically denied to  have suppressed any amount from the return of his election expense.      We shall first take up for consideration Issue No. 6(c) which concerns  the  publication  of  seven  advertisements, which according  to the  election petitioners were issued by the election  agent  of  Respondent  No.  1,  Shri  Sudhakar Deshmukh and  Published on  18.6.1991 in  Lok Mat,  Lok  Mat Samachar, Hitavad,  Nagpur Times, Nagpur Patrika, Nav Bharat and Tarun  Bharat.  The  said  advertisements  were  "thanks giving" advertisements.  The total  expenditure incurred  in respect of  the same  as alleged  in  the  amended  election petition was  Rs. 39,500/-.  Some of the advertisements were alleged to  have been directly released to the newspapers by the election  agent of  Respondent No.  1 while  others were alleged to have been released through prasad Publicity.      According to  Mr. Manohar,  the learned  senior counsel for the  returned candidate  the expenses  involved  in  the publication of all these advertisements, even if accepted as true and  assumed for  the sake  of argument  to  have  been incurred or  authorised by  the election agent of Respondent No. 1,  were not  required to  be included  in the  election expenses, as the advertisements had been published after the declaration of  the result and were not published during the crucial dates  mentioned in  Section 77 of the Act.According to Dr.  Ghatate, on the other hand, since the advertisements had appeared in various newspapers on 18.6.1991, it would be reasonable to  presume  that  the  advertisements  had  been issued prior  to mid-night  between 17th  June,1991 and 18th June,1991 and  therefore the  expenditure  involved  in  the publication of these advertisements would be deemed to be an expenditure incurred in connection with the election and was required  to   be  included   in  the   return  of  election expenditure.      As already  noticed, Section  77(1) of the Act mandates that a  separate and  correct account of all the expenditure in connection  with the  election, incurred or authorised by the returned  candidate or by his election agent between the dates on  which he  had  been  nominated  and  the  date  of declaration of  the results  thereof, both  dates inclusive, shall be  maintained.  The  High  Court,  after  a  detailed discussion of  the submissions  made by  learned counsel for the parties, which have been reiterated before us also, came to the  conclusion that  all the  seven  advertisements  for which the  total expenditure  of Rs. 39,500/- was alleged to have been  incurred or  authorised by  the election agent of the returned  candidate were  "thanks giving" advertisements and were  published after  the  declaration  of  result  and therefore they did not fall within the prohibitory limits of the time  schedule prescribed in Sub- section (1) of section 77 of the Act and were as such not required to be taken into account while  computing the  expenses incurred by the first respondent.      We are  in agreement  with the  view of  the High Court that the  advertisements in  question could  not be  said to have been  issued in  connection with  the election, even if that expression  is to be given a wide amplitude. What is it that the  Legislature intended to achieve by prescribing the inner and  the outer  limits in  Section 77  of  the  Act  ? Obviously, it  was the elimination of money influence during the elections  and maintaining  of purity  of elections. The expenditure incurred  after the declaration of the result of the election  can possibly  have no nexus with the purity of the electoral process. The very fact that the advertisements thanked the  electorate for  electing Datta Meghe would show

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that the  same could  only have  been issued for publication after  the  declaration  of  Datta  Meghe  as  the  returned candidate.  The  expenditure  incurred  in  that  connection therefore cannot  be said  to be an expenditure ’authorised’ or ’incurred’ during the prohibited dates. Indeed, there may be  cases   where  some   expenditure  can  be  incurred  or authorised by  a returned  candidate in  connection with his election, even  after the  declaration   of the  result, but unless that  expenditure can  be related  to the  process of election, authorised  or  incurred  during  the  prohibitory limits set  out in  Section 77  (1) of  the Act,  it is  not required to  be included in the return of expenses. The mere fact that  the advertisements  appeared in the newspapers on the very  next day  cannot lead  to any presumption that the expenditure in  connection therewith  had been  incurred  or authorised by  the returned  candidate during the prescribed prohibitory dates  in anticipation  of  his  being  declared elected. We,  agree and uphold the finding of the High Court that there  was no  nexus between the amount spent on thanks giving  advertisements   with   the   election   after   the declaration of  the result  of election and decide issue No. 6(c) against the election petitioners.      Issue No.  6(a) arises  out of  the allegations made in para 2.13  of the  election petition and the items contained in Annexures  17 and  18 to  the petition. It deals with the advertisements allegedly  issued by Respondent No. 1 through M/s. Yugdharma  Consultants and  Commercial Services, Nagpur (for short  ’YCCS’) to  publicise his  candidature. A  chart containing 27  items of  expenditure incurred  in respect of various  advertisements  published  on  different  dates  in different newspapers  in connection with the election of the first  respondent   were  relied   upon  to  urge  that  the advertisements had  been released  through  two  advertising agencies namely  Yogdharma Consultants & Commercial Services (YCCS) and  Prasad  Publicity.  According  to  the  election petitioners Respondent  No. 1  incurred  an  expenditure  of Rs.2,74,224/- on  the advertisements  released through  YCCS but the said expenditure has been suppressed by the returned candidate and if included in the return of election expense, would show  that the  returned candidate  had committed  the corrupt practice as envisaged by Section 123 (b) of the Act.      That some  of the  advertisements had been published in various newspapers  and had  been released  through YCCS  or Prasad Publicity  has not  been disputed  by learned counsel for Respondent  No. 1  before us.  His argument, however, is that neither  Respondent No.1 had authorised the publication of those advertisements through YCCS or Prasad Publicity nor had Respondent  No.1 or  his election  agent  authorised  or incurred  the  alleged  expenditure  of  Rs.  2,74,224/-  in respect of  those advertisements.  The main  thrust  of  the argument of  Dr. Ghatate,  appearing for  the appellants, on the other hand was that in the release orders which had been issued by  YCCS the  name of "Datta Meghe" had been shown as the client  and, therefore,  it  was  futile  to  urge  that respondent No.1  or his  election agent  had not incurred or authorised  the   expenditure  in   connection  with   those advertisements. Reliance  was placed  on the  advertisements which appeared in the issues of Lok Mat and Lok Mat Samachar dated 1.5.1991,  2.5.91, 3.5.91, 5.5.91, 6.5.91 and 21.5.91, being Ex. 83/2 to 83/6, 83/34, 83/35, and 83/91 to argue the expenditure in  respect of  the same  had been  incurred  or authorised by  respondent No.1.  We, however,  find that the bills in  respect of  each of  the aforesaid  advertisements were admittedly  issued in  the names of persons, other than the first  respondent. Those had been issued in the names of

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Sushila Bai  Jadav; Nagpur  Nagar Congress  Committee; Yuvak Congress Committee  and Supersteel  Furniture etc.  Even  in respect of  the advertisements  which appeared in the issues of Yugdharma  dated 1.5.91,  3.5.91, 8.5.91 and 11.5.91, the bills had  admittedly been  issued in  the names  of  Nagpur Nagar Zila  Congress  Committee.  The  election  petitioners sought to  connect Respondent  No.1 with  the advertisements issued through  YCCS by  pointing out  that the name of Shri Datta Meghe had been shown as the client in those bills and, therefore, he  alone must be presumed to have discharged the liability arising  out of  those bills either directly or by placing his funds in the hands of the parties in whose names the bills  had been  drawn. Reliance  has been placed on the statement of  Shri Madhukar Kishti, PW 55 by learned counsel for the appellants in support of his submissions.      Shri Madhukar  Kishti, PW  55 was  at the relevant time the Managing  Director of Yugdharma Cooperative Society, the parent company,  which publishes  the daily Yugdharma run by Yugdharma Industrial  Cooperative society. Yugdharma Workers Newspapers Pvt.  Ltd. used  to run the daily Yugdharma prior to it being taken over by the YCCS. It was Yugdharma Workers Pvt. Ltd.  who had  constituted YCCS  in March  1990 as  the sister  concern  for  routing  advertisements  to  different newspapers. PW55  deposed that  he used  to do whatever work was required  to be  done by  the YCCS.  He went on to state that YCCS  released advertisements for publication for Datta Meghe’s candidature  for the Parliamentary Elections of 1991 to various newspapers and asserted that those advertisements were received  by them  from Yuvak  Congress Committee  etc. Explaining as to how the name of Datta Meghe had appeared in certain release  orders against  the name of the client even though  Datta   Meghe  had   not   released   any   of   the advertisements, the  witness stated that since the space had to be  booked in  relation to the election of Datta Meghe in various newspapers,  the witness  had, on  his own mentioned the name  of Datta  Meghe against the name of the client for the  sake   of  convenience,  though  Datta  Meghe  had  not entrusted any  advertisement to  YCCS for  publication.  The witness added that he had not received any orders personally on behalf  of YCCS  from any of the clients of YCCS and that the orders  used to  be received by Shri Thakre Shri Prakash Deshpande. In  his cross-examination,  the witness, however, conceded that  the name of Datta Meghe had been mentioned in cerain release  orders only  because the  name of the client had not  been disclosed  by the  party  and  the  space  was required to be booked in the newspapaers in advance owing to the rush  of advertisements.  Since, the advertisements were required to  be published in connection with the election of Datta Meghe,  he had  shown his name against the name of the client on  his own  accord.  PW55,  further,  admitted  that neither any bill nor any receipt had been issued by the YCCS in the name of Datta Meghe. Thus, we find that PW55 does not advance the  case of  the election  petitioners at all in so far  as  the  allegations  concerning  issue  No.  6(a)  are concerned. Besides,  this witness  had no personal knowledge of the  nature of the transactions on the basis of which the release orders  came to  be issued. The election petitioners had summoned  various release  orders and  other record from this  witness  to  connect  the  name  of  Datta  Maghe  but curiously enough they were neither exhibited nor got proved. The other  witnesses, who  could throw  some  light  on  the nature of the transaction, like Shri Thakre and Shri Prakash Deshpande, though summoned, were not examined on this aspect for reasons  best known  to them.  The submission of learned counsel for  the appellants  that the  explanation given  by

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PW55 regarding  the reason  for  the  name  of  Datta  Meghe appearing in  some of the release orders is not satisfactory cannot  help  the  appellants  because  there  is  no  other evidence or  explanation offered by the election petitioner. Even  otherwise   the  explanation   appears  to   be  quite plausible. It  was for  the election  petitioners to  adduce better and  cogent evidence,  direct or  circumstantial,  to show that  the returned candidate had incurred or authorised either himself or through his election agent the expenditure in respect  of the advertisements issued by YCCS, as alleged in the  petition, but  no such evidence was produced and the allegation has remained unsubstantiated.      Shri Prakash Despande, PW11, the Deputy General Manager of Hitvada did prove the signatures of PW55 on release order Ex. 586  dated 7.5.1991 but was silent about any transaction between YCCS  and the first respondent. Same position exists in respect  of  other  advertisements  also.  We  need  not, therefore,  detain   ourselves  to   refer  to   all   other advertisements, their  release  orders,  bills  or  receipts because from the evidence of PW55 it stands established that no payment  for any of the advertisments issued by YCCS came from the  returned candidate,  Respondent No. 1 deposed that the advertisements  had been  issued by  different  parties, associations and  individuals and those parties had made the necessary payments.  The petitioners have led no evidence to show that  the advertisements  which were  issued under  the names of  different parties,  organisations and  individuals like Nagpur  Nagar Congress Committee, Indira Brigade, Youth Congress, Phartiva  Sher  Sangathana,  Vidharbha  Professors Club  etc.  were  in  fact  not  issued  by  those  parties, organisations, institutions or individuals, by examining any witness from  such bodies  and, therefore, the argument that the advertisements,  though shown  to have  been  issued  by different parties and organistions etc., were in fact issued at the  instance of  the first respondent or that it was his money which  they had  paid to  discharge the liabilities in respect of  these advertisements, has no basis let alone any foundation. The  election petitioners have totally failed to bring any material on the record to connect Respondent No. 1 either with  the publication  of or  expenditure incurred in respect of  the various  advertisements as  alleged  in  the petition.  Even   though   the   names   of   the   parties, organisations, associations,  institutions, and  individuals etc.  had  been  mentioned  in  the  advertisements  as  the sponsors of the advertisements, the election petitioners did not examine  any one  of them  to elicit from them that they had not  issued or  caused to be issued those advertisements or that  they had  not incurred  any expense  in  connection therewith. We  are not  impressed with the submission of the learned counsel  for the  petitioners that  since  identical advertisements came to be issued simultaneously in different newspapers on  the same  date  or  on  different  dates,  an inference should  be raised  that it  was done  only at  the instance of  the first  respondent, because he alone was the beneficiary irrespective of different names of sponsors. The argument has  neither logic  nor  any  basis.  The  election petitioners led no evidence to even create a doubt about the identity  of  the  sponsors  and  merely  because  identical advertisements appeared on the same date, it is not possible to hold  that the  sponsors were  fictitious persons or that the actual sponsor was the returned candidate himself. It is not unknown  that during the elections, many sympathisers as well as  ’others’ come forward to support the candidature of a  particular   candidate  and   sponsor  and  pay  for  the advertisements which  they  get  published  to  further  the

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prospects of that candidate’s election. Moreover, apart from the returned  candidate, the party which sponsors him as its candidate is  equally interested  in the  furtherance of the prospects  of   his  election  and  may  approach  different organisations, associations  or individuals  to sponsor  and publish the advertisements at their expense in favour of the candidate and even to suggest to them that the same could be done by  availing of  the services of YCCS which was engaged in the propoganda cannot be ruled out. The burden of proving the issue  was heavy  on the  election petitioners  but they have miserably  failed to discharge the burden. No evidence, direct or  circumstantial has  been led even to show that it was the  money of the returned candidate which had been used by the  party, other  associations, institutions or persons, for  the   publication  of  the  advertisements  in  various newspapers. The  evidence on the record does not lead to any inference that it was the first respondent’s money which was used for publication of advertisements and in the absence of such an  evidence, no  responsibility can be fastened on the first respondent  in respect  of the expenditure incurred in connection with  those  advertisements.  The  learned  trial Judge after  a detailed  discussion of  various exhibits and taking into  consideration the  law on the subject concluded that :      ........................................       " Datta  Meghe’s  connection  with  the      advertisements released  by    YCCS  has      not been  established, and  there is  no      other evidence   to  show    that  Datta      Meghe either  incurred or authorised the      expenses    for    the    advertisements      released through  YCCS,   and all    the      advertisements,   which have been issued      through  the agency of YCCS will have to      be  left   out,  while  considering  the      expenses incurred  or authorised  by the      first respondent Datta Meghe."         We are in complete agreement with the      above conclusions  and nothing  has been      pointed out before us to persuade us to take a different view. Issue No. 6(a) is, therefore, decided against the election petitioners. ISSUE NO. 6(b)           According to  the allegations  contained  in  para 2.23-A  of  the  amended  election  petition,  the  returned candidate had, besides releasing advertisements through YCCS in various  newspapers also  utilised the services of Orange City Advertising,  Nagpur and  Prasad Publicity,  Nagpur for publication  of   advertisements  in   connection  with  the furtherance of  his elections  in  various  newspapers.  The details of  the advertisements  allegedly  released  by  the returned candidate  to the  newspaper daily  Hitvada through Orange City  Advertising, Nagpur and Prasad Publicity Nagpur were provided in Annexure 18B and C attached to the election petition. The total amount alleged to have been spent by the returned  candidate   in  that   behalf  was  stated  to  be Rs.40,000/- and  Rs.23,520/-. In  para 2.23-B  the  election petitioners averred  that  although,  it  appears  from  the statements at  Annex. 18B and 18C that the bills were issued in the  name  of  certain  organisations,  the  payments  in respect of  each one  of the  bills had in fact been made by respondent No.  1 himself  and/or his  election agent,  Shri Sudhakar Deshmukh during the period from 25.4.91 to 16.6.91. It was  alleged that  the orders  for each  of the  items of advertisements appearing  in the statements at Anex. 18B 18C

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were also  placed by  respondent No. 1 himself and/or by his election  agent   Shri   Sudhakar   Deshmukh   or   by   the organisations and individuals as indicated in the statements at the  instance and under the authority of respondent No. 1 or his  election agent.  Besides  the  election  petitioners alleged in  para 2.23-C  that some  more advertisements  had been released  by respondent No. 1 during 25.4.91 to 16.6.91 through Prasad  Publicity in Tarun Bharat and an expenditure of Rs.71440/-  had been incurred therefor which was also not disclosed by  the returned  candidate in  the return  of his expense.      In   the    written   statement,   respondent   No.   1 categorically denied  that the  advertisements  detailed  in Annexures 18B  and 18C  had been  published or issued by him and asserted  that no  expenditure in  that behalf  had been incurred or  authorised by  him or by his election agent. It was  denied  that  he  had  authorised  and/or  incurred  an expenditure of  Rs.40000/- and  Rs.23520/-  as  itemised  in Annexure 18B  and 18C.  Similarly, it  was asserted  by  the returned candidate  that he had not placed orders for any of the advertisements  detailed in  Annexure 18D either himself or through  his election  agent nor had he authorised any of the organisations  or individuals  mentioned in Annexure 18D to get  published the advertisements. It was maintained that no expenditure  whatsoever with regard to the advertisements itemised in  Annexure 18D were incurred or authorised by the returned candidate  or by  his election  agent and therefore there was  no question  of disclosing the same in the return of election  expenses.    With  regard to The advertisements allegedly released  through  Orange  City  Advertising,  the learned trial Judge has noticed:        "With  regard   to Issue  No.6(b), the      learned  counsel   for  the  petitioners      stated  that   he  would  not  be  in  a      position to  urge that   the expenditure      on the  advertisements introduced in the      expenditure  incurred   by   the   first      respondent. I  have already  found  that      no respondent. I have already found that      no   other     item    of    expenditure      incurred   through    prasad  Publicity,      except  what has  been included in issue      no. 5(b) (vi) &  (vii) can  be included,      and   issue   No.   6   (b)  is answered      accordingly."      Learned counsel for the appellants has not disputed the above finding  before us  and as  such we  have no reason to take a view different than the one taken by the High Court.      We have dealt with in the earlier part of the judgment, the allegations  relating to the expenditure incurred by the returned candidate  through Prasad  Publicity, while dealing with issues  5(b) (vi) and (vii). We shall now advert to the findings with  regard to  certain amounts  which  have  been found to have been suppressed by the returned candidate from the return of elections expenses.      The election  petitioners relied  upon the testimony of Shri Anant  Shastri PW50,  who used  to carry on the work of advertising agency  in the  name of  prasad  Publicity.  The witness deposed that he knew respondent No.1 and that he had received advertisements  for publication  in the  newspapers from several  institutions with  which respondent  No.1  was connected. Those  institutions included  Radhika  Bai  Meghe Memorial Trust;  Nagar Yuvak  Shikshan Sanstha; Polytechnic; Engineering College;  Dental College;  Pharmacy and  Medical College, being  run by  those institutions. That he had been

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releasing the advertisements on behalf of those institutions since 1984.  He went  on  to  add  that  payments  had  been received for  the publication  of  the  advertisements  from various  organisations   as  also  from  Nagpur  Shahr  Zila Congress Committee  and entered  in a ledger which, however, had been destroyed by him in the last week of March 1992. He stated that  the account  ledger had  been destroyed  by him before he had received the summons to appear in the court as a witness in the election petition. According to PW50 he did not himself  write the  account books and that the same were written by his accountant Shri Dhale. After referring to the counter foil  book, PW50  deposed that  ledger folio No. 226 pertained to the account of Yashwantrao Chauhan Social Forum and that  counterfoil No.003363  from the  same  counterfoil book also  bore ledger  folio No.  226 and was issued in the name of Datta Meghe Mitra Mandal. The word "staff" which had been written  below "Datta  Meghe Mitra  Mandal" in the copy had, however,  been scored out later on. The witness went on to say  that counter  foil No.003364  also bore ledger folio No. 226  and and  was issued  in the  name  of  Nagpur  Zila Congress Committee.  Counterfoil No.  003365 which also bore ledger folio No. 226 was issued in the name of Narayan Ahuja while counterfoil  No. 003366 with the same ledger folio No. was issued  in the name of Rajiv Sena. The witness explained as to  how the  same ledger folio No. (226) appeared against various counterfoils  and stated  that various organisations which had  come forward  to support the candidature of Datta Meghe and  were releasing  advertisements in  his favour had been clubbed  together under  one and  the same ledger folio No. 226.  He denied  the suggestion that the account against ledger folio  No. 226  was of  Datta Meghe  and not  of  the organisations clubbed together.      The High  Court after considering the evidence of Anant Shastri PW50  in great  details opined  that the witness was enjoying the  patronage of  the returned  candidate  and  of various institutions  with which  the returned candidate was connected and  that the  witness had destroyed the ledger, a material document,  "probably because  those  documents,  if retained, would  not  have  been  favourable  to  the  first respondent". The  High Court  did not accept the explanation offered by  Anant Shastri PW50 regarding the time and reason for the  destruction of  the ledger. The High Court repelled the argument  of learned  counsel for the returned candidate that the  release order of prasad Publicity Ex. 225 relating to advertisement  Ex. 88/1  was suspicious  because the date 28.4.91 did  not appear on the carbon copy Ex.712, which had been produced  by Anant  Shastri PW50 presumably because the High Court  felt that the witness was favouring the returned candidate. Similarly,  the High  Court did  not  accept  the criticism made  by learned  counsel for  the  respondent  in respect of release order No. 5031 dated 28.4.91 in which the name of  Datta Meghe had appeared in the carbon copy, as the client, though  there was  no mention of the date 28.4.91 on it. The  High Court  noticed that  though below  the name of Datta  Meghe,   the  word  "Karyalaya"  had  been  initially mentioned in Ex. 711, the manner in which that word had been written would  show that the word "Karyalaya" might not have been written on 28.4.91 but on some other date. According to Shri Anant  Shastri PW50 the advertisement dated 28.4.91 had been given  to him  by Shri  Vasant Parshonikar on behalf of Nagpur Nagar Zila Congress and it was for publication of the programmes arranged by Nagpur Nagar Zila Congress Committee. That  he   had  given   identical  advertisements   to  four newspapers including Nagpur Patrika and Lokmat. According to the witness,  the word  "Karyalaya" had  been  omitted  from

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Ex.325  inadvertently  as  he  forgot  to  mention  it.  The witness, however, stated that Datta Meghe was not his client for the  said advertisement and the words ’Datta Meghe’ were used only as a caption and the actual bill was issued in the name  of   the  real  client,  Nagpur  Nagar  Zila  Congress Comittee.      According to  Shri Padmakar  PaunikarPW3, bill  Ex. 156 was issued  to the party on 29.4.91 itself. It was signed by Bhojraj PW12  and the  receipt Ex.157  was  also  signed  by Bhojraj PW12.  He admitted  that both  the bills EX.227 were prepared on  two different  type-writers and  both bore  the signatures of  PW12. he  Conceded that the three bills dated 29.4.91 were  issued on  three different formats. EX.156 was issued on  the format  Nar kesari  Prakashan  and  disclosed Datta Meghe  as the  client and  that advertisement had been released by  prasad Publicity;  EX.227 was  on the format of Tarun Bharat  and showed  Yashwantrao Chauhan  Forum as  the party Concerned;  and EX.  603 was  again on  the format  of Tarun Bharat  and showed  Datta Meghe  as the  name  of  the client. According  to PW12,  the name of Yashwantrao Chauhan Forum was  shown as client in Ex. 227 because they had asked for the  bill in the name of Yashwantrao Forum when bill Ex. 227 was  issued. The  witness admitted  that all  the  three bills were  identical. The  High Court dealt with this issue relating to  the advertisement Ex.88/1 which had appeared in Tarun Bharat for a sum of Rs. 1320/- and observed:        "If  one   were to   go  only   by the      different formats  on which  the   bills      were   issued   and   different    names      which appeared  on the  bills, it  would      appear that  there was  a good  deal  of      confusion and  on the basis of the bills      themselves,  no   inference    could  be      raised as to who was the real client. If      regard is to be had to the fact that the      original release  orders mentioned   the      name   of Datta   Meghe as client, there      was no   reason   for  Tarun  Bharat  to      depart    from    normal  practice    of      issuing   the   bills  in  the  name  of      Prasad  Publicity   by    showing  Datta      Meghe as  the client,  and that seems to      have   been   done   with    the    bill      Ex.156)   issued purportedly  on 29.4.91      on the format of Narkeshri Prakashan. By      that   time, the   forms  of   Narkesari      Prakashan were  being used. It  would be      only when  a bill  witha different  name      would be   required  that the  change in      the name  would appear,  and the    only      person, who  was interested  in having a      bill in  the name   different  from  the      one used  in the release order, would be      Prasad Publicity  which was  represented      by   Anant Shastri. To  the extent  that      Datta  Meghe’s   name  appeared  in  the      original   release order,  there  is  no      demur even  by Anant  Shastri who  was a      party to the transaction. If his version      that the   name  of   Datta Meghe    was      mentioned   merely   as   a caption  was      true, there   was  no difficulty for him      to allow  the name   of  Datta  Meghe to      continue in  the  original  bills  which      were     issued.  Coupled     with   the

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    position that all the original documents      issued by  Tarun Bharat are said to have      been handed   over by  Anant Shastri  to      a person  about whose  identity he   was      not   clear, it  is difficult  to accept      the position  that   the name  of  Datta      Meghe in  the release  orders issued  to      Tarun  Bharat   appeared  merely   as  a      caption."           The High Court then opined:        "In view  of the  above factum,  there      can be  no doubt,  though there   was  a      deliberate   attempt   to  disguise  the      transaction,  that     the  amount    of      Rs.1320/-   under the   bill  Ex.156 for      the  advertisement  published  in  Tarun      Bharat dated  21.4.91 (Ex.88/1)   on the      basis  of     which  the  release  order      (Ex.225),  was     paid   bythe    first      respondent   under   receipt Ex.157,  on      29.4.91."      After  hearing   learned  counsel   for  the   returned candidate at  length and  going through  the record,  in our opinion the  finding recorded  by the  High Court  is  quite sound. The  explanation for  appearance of the name of Datta Meghe in the release orders does not appeal to common sense. Anant Shastri did not handover the documents to a ’stranger’ whose identity  he could not recollect and admittedly he did not handover  the same  to Shri  Parshoinikar. Thus,  in the facts and  circumstances on  the record,  the High Court was was right in concluding that the expense for bill No. 156 in respect of  advertisement EX.  88/1 had  been authorised  or incurred by  the returned  candidate. Even  the challenge to the  said  finding  by  learned  counsel  for  the  returned candidate before  us was  only half_hearted.  We thus  agree with the  finding of  the  High  Court  and  hold  that  the returned candidate  did incur  an expenditure  of Rs. 1320/- for Bill EX.156 in respect of the advertisement published in Tarun Bharat  Ex.88/1 but  failed to include the same in the return of  his election  expenses. The  High  Court  rightly included that  amount to  the amount disclosed in the return of election expenditure.      Coming now  to the  advertisement which appeared in the Election Special Issue of Tarun Bharat dated 21.5.91 and for which an  expenditure of  Rs.7000/- was alleged to have been incurred by  the returned  candidate, we  find that the plea with regard  to this  advertisement was  not raised  by  the appellants in  the original  election petition  and was  not even included in the first amended election petition but was introduced  for   the  first  time  by  an  amendment  dated 18.12.91. In  the verification to the election petition, the contents of the relevant paragraphs were verified as ’partly based  on  personal  knowledge  and  partly  on  information rceived from  ......Tarun Bharat.....In  the affidavit filed in support of the allegations of corrupt practice, again the contents of  para 2.23  were verified  as  based  partly  on personal knowledge  and partly  on information received from the  official   record  of   Tarun  Bharat.   The   election petitioner, however,  did not in his deposition disclose the basis of  his ’personal knowlege’ for making the allegation. In the  pleadings a  wide latitude  was left by the election petitioners  to   lead  evidence   on  any  of  the  various ’possibilities’  detailed  in  the  election  petition.  The ’vagueness’ of the pleadings even after amendment shows that the election  petitioners were out on a wild goose chase and

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trying to  fish for evidence so as to be able to fasten some liability on the returned candidate or his election agent at least in  some case. PW39 Laxman Trimbakrao Joshi, the Chief Editor  of  Tarun  Bharat  was,  examined  by  the  election petitioners in  support  of  the  allegations  made  in  the petition  regarding  publication  of  the  advertisement  in Election Special  Issue of  Tarun Bharat.  He  deposed  that Tarun Bharat  had decided to issue an Election Special Issue after  the   elections  were   announced  and  that  he  had personally contacted  Datta Meghe  about 8 to 10 days before the publication  of the  issue on  telephone and  had a talk with Datta  Meghe personally  and had  requested him for the issuance  of  an  advertisement,  as  he  was  a  contesting candidate. Datta  Meghe, according  to the witness, had told him that  he would  think about  the matter  and admittedly, thereafter, did  not get in touch with him. The witness went on to  state that  an advertisement in support of respondent No. 1  was published  in Tarun  Bharat dated 21.5.91. It had been received  through  Prasad  Advertising  Agency  (Prasad Publicity)  who   had  also   supplied  the   material   for publication. The  witness, however, did not know whether the bill for  the advertisement had been prepared in the name of Prasad Publicity  or someone  else nor did he know nor as to who had  paid the  bill. He  did not even know as to who had instructed Prasad Publicity to give the advertisement or who made the  payment for the same to the Prasad Publicity. This advertisement Ex.221 is the subject matter of three bill Ex. 192 bearing No.4167 (shown as Duplicate); Ex.234 No.4178 and Ex.605, No.4167  (written after  scoring out  4178). All the bills are  dated 21.5.91.  Where as  in Ex.192, which was on the format of Narkeshari Prakashan the bill was addressed to Prasad Publicity,  showing Datta  Meghe’s name  as the party releasing the  advertisement, Ex.234  was on  the format  of Tarun Bharat  and again  addressed to  Prasad Publicity  but showing NSUI  as the  client while  Ex.605 was issued on the format of Tarun Bharat and was addressed to prasad Publicity and showed  Datta Meghe  as the client. The High Court after considering the  evidence of  PW3, Paunikar (who had deposed that Prasad Publicity had not placed the order); PW39 Laxman Joshi, (who  had deposed that the advertisement was received from the  Prasad Publicity that the bill had been settled by Prasad Publicity); PW50 Anant Shastri and PW12 Bhojraj, held that the  advertisement had  been issued by respondent No. 1 and that  Anant Shastri  PW50 had  manipulated the bills and the record to help the returned candidate.      We have  carefully perused paragraphs 154 to 157 of the judgment  of  the  learned  trial  Judge  dealing  with  the question of  the expenditure of Rs.7000/- in connection with the advertisement  Ex.221 in  the Election Special Issue and the evidence  on record.  Keeping in  view the difference in the three  bills relating  to the same advertisement and the use of  these different  formats by Tarun Bharat, we find it difficult to  agree with  the High  Court that  the election petitioners  have   established  that  respondent  No.1  had incurred  the   expenditure  of   Rs.7000/-  in  respect  of publication of  Ex.221. The  findings appear  to  be  rather laboured ones and if Tarun Bharat advertising office was not "very careful  about giving  the particulars  to  the  bills which they  issued and  that the  bills were not issued from bound  book"   as   observed   by   the   High   Court,   no adverse.inference  could   be  drawn  against  the  returned candidate. Indeed neither Shri Paunikar PW3 nor Bhojraj PW12 had any  talk with  Datta Meghe  in respect  of any  of  the advertisement and  from the  testimony of PW39 Laxman Joshi, it is  not possible to hold that pursuant to the talk he had

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with the  returned candidate,  the advertisement in question had been published by the returned candidate himself and not by or  on behalf  of NSUI  in whose favour the bill had been drawn. As already noticed neither in the verification of the petition nor  in the  affidavit, PW39  had been disclosed as the source of information. The appellants have not explained the basis  for making  the said  allegtions. The findings of the High  Court in  our opinion  are based  on surmises  and conjectures and  we agree  with Mr.  Manohar, learned senior counsel for  the returned  candidate that in the face of the vague  pleadings   and  inconclusive  evidence  led  by  the election petitioner  coupled with the discrepent evidence of PW39,  who  admittedly  was  not  shown  as  the  source  of information for  the said  allegation, it is not possible to hold that  the advertisement  in question,  Ex.221, had been released by  and paid for by Datta Meghe himself. It is also relevant in  this connection  to note  that no release order had been got produced by the election petitioners in respect of this  advertisement which  could disclose  who  the  real client was.  We, are  therefore, of  the  opinion  that  the material on  the record  was not  sufficient to  fasten  the liability for  the publication  of the  advertisement in the Election Special Issue of Tarun Bharat Ex. 221 for Rs.7000/- on the  returned candidate.  We, accordingly,  set aside the finding of  the High  Court and  hold that Rs.7000/- was not spent by  the returned  candidate  for  the  publication  of Ex.221.      The High  Court also  found that an amount of Rs.9900/- in respect  of Ex.258  had been  suppressed by  the returned candidate from  the return  of his  election  expenses.  The receipt Ex.258 shows that an amount of Rs.9900/- was paid on 20.5.91 by Sharad Pawar Mitra Mandal for the publications of the advertisement.  A consolidated  bill had  been issued in the name  of Sharad  Pawar Mitra  Mandal as  the  publisher. According to  PW4,  Ashok  Jain,  the  advertisements  which appeared in  Lokmat and  Lokmat Samachar  Ex.83/18 and 83/19 dated  12.5.91  against  bill  No.257  had  been  given  for publication by  Narayan Ahuja and Sharad Pawar Mitra Mandal. The witness  admitted that  in the bill, the name of Narayan Ahuja was  not mentioned  and that  the payment for the bill had been  made by  Sharad Pawar Mitra Mandal. From a careful consideration of the observations of the High Court in paras 183 to  187, the  pleadings and the evidence in that behalf, we find  that recourse  has been  taken by the learned trial Judge  to   surmises  and   conjectures  to  hold  that  the expenditure had  in fact been incurred by respondent No.1 in respect of the said advertisement. There is not even an iota of evidence  on the record to show that the first respondent had incurred  the expenditure of Rs.9100/- as alleged by the election  petitioners   in  their   evidence,   though   not specifically  pleaded   in  their   election  petition  both original and  amended. The  election petitioners  had learnt about the  role being  played by  Narayan Ahuja  even before they filed  the election  petition. It  was for them to have examined Narayan  Ahuja to elicit from him as to whose funds he was  utilising for  making payments  for  publication  of various advertisements. The petitioners chose not to examine him for  reasons best  known to  them. We  do not think that there was  any  obligation  on  the  part  of  the  returned candidate to  have examined  Narayan Ahuja and lead negative evidence to  the effect  that no  funds had been provided to him by the returned candidate and that the payments had been made by the parties who were responsible for the publication of various  advertisements through  him. The observations of the High  Court that  Narayan Ahuja was a person "who had no

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financial   or   political   background   for   representing organisations", is  clearly based on conjectures because the evidence on the record does show that Narayan Ahuja had been working for  the political  parties and  without there being any pleading  or evidence  on the  record, it was to say the least rather  unfair for  the High  Court to  conclude  that Narayan Ahuja  had "neither  any financial  status  nor  any political background".  We do  not find it possible to agree with  the   High  Court  that  the  returned  candidate  had suppressed the  amount of  Rs.9100/- in  respect  of  Ex.221 (receipt Ex.258)  and accordingly set aside the said finding of the  High Court,  which is  not based on any satisfactory material on the record.      The finding of the High Court in respect of some of the items as  detailed  in  Annexures  8  to  15,  involving  an expenditure  of  Rs.22900/-,  in  our  opinion  are  equally fallacious and  conjectural. The  same are not based even on correct appreciation of evidence. Recourse has been taken to surmises and  imagination to  return these findings. We find it difficult  to subscribe  to the view of the learned trial Judge which  is not supported by any material on the record. The positive  evidence led  by the  election petitioners  is that the  returned candidate  had not himself or through his election  agent   given  any   of  the   advertisements  for publication and  had not  accepted  any  responsibility  for making payment  in respect  of any  of those  advertisement, even  though   the  advertisement   were  issued   for   the furtherance of his election prospects. There is no direct or circumstantial evidence  led by  the election petitioners to show that  the amount paid in the name of Sharad Pawar Mitra Mandal had been placed at the disposal of the said Mandal by the returned  candidate or  his election  agent. There is no evidence even to suggest that respondent No.1 had undertaken the responsibility of making the payments in connection with the expenses  incurred by  Sharad Pawar  Mitra  Mandal.  The election petitioners,  for reasons best known to them, chose not to  examine any  witness  from  Talmale  Bandhu,  Punjab Woodcraft, Ranjit Engineering Works, Nitin Furniture, Sharad Pawar  Mitra   Mandal,  D.M.M.   Mandal  and  various  other organisations under  whose names  either the  advertisements had been published or who had according to the evidence made payments for  those advertisements  as  per  the  bills  and receipts on  the record.  If any  evidence was  led  to  the effect that  none of  the persons,  parties or organisations had in  fact issued  the advertisements or they or anyone of them had  denied the making of any payment, it may have been possible to  argue that  those advertisements  may have been got published by the first respondent himself or through his election agent  or  through  some  other  persons  with  his consent or  with the  consent of  his election  agent and in that event  the  onus  may  have  shifted  to  the  returned candidate to  explain the  source of  the expenditure and in the absence of any satisfactory explanation it may have been possible to  draw an  inference that it was the money of the returned candidate.  Since no  such evidence  was led and no proof was  submitted in  support of  the alleged charge, the question of  shifting of  onus on  the returned candidate to prove his  non-liability did  not  arise.  The  High  Court, therefore,  was  not  justified  in  saddling  the  returned candidate with  any expense other than Rs.1320/- in addition to the  expenses disclosed  by him  in  the  return  of  his election expense.      Thus, on the settled principles extracted in an earlier part of this judgment, we find that the election petitioners have miserably  failed to  discharge  the  onus  of  proving

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various  charges  levelled  by  them  against  the  returned candidate regarding the commission of corrupt practice under Section 123 (6) of the Act. The High Court was, justified in holding that  the returned  candidate had  not committed any corrupt practice  as envisaged by Section 123 (6) of the Act and in  dismissing the  election petition. However, the High Court fell  in  error  in  holding  that  certain  items  of expenditure totalling  Rs.58,2220/- had  been suppressed  by the returned  candidate and  deserved to  be included in the return of  his election  expense. Except  to the  extent  of Rs.1320/-,  no  other  liability  can  be  fastened  on  the returned candidate  in respect  of the  other items  of  the alleged expenditure  on publication  of advertisements  etc. The election appeal consequently fails and is dismissed with costs. The  cross-objections to  the extent  indicated above succeed  and   are  allowed.   The  costs  are  assessed  at Rs.10000/-.      Before parting  with the  judgment we  would,  however, like to  express our  disapproval of  the  manner  in  which amendments  of   the  election   petition  were  allowed  on occasions more  than once and how evidence was allowed to be brought on  the record  against the  pleadings  and  settled legal principles.      Section 86(5) of the Act deals with the amendment of an Election Petition. It lays down that the High Court may upon such terms  as to costs or otherwise, as it deems fit, allow amendment in  respect of particulars but there is a complete prohibition against  any amendment  being allowed  which may have the  effect of  introducing either  material facts  not already pleaded  or of  introducing particulars of a corrupt practice not  previously alleged  in the petition. The first part of  Section 86(5) of the Act, therefore, is an enabling provision while  the second  part creates a positive bar. Of course, the  power of  amendment given  in the Code of Civil Procedure can  be invoked  by the High Court because Section 86 of  the Act  itself makes  the procedure  applicable,  as nearly as  may be, to the trial of election petition, but it must not  be ignored that some of the Rules framed under the Act  itself   over-ride  certain  provisions  of  the  Civil Procedure Code  and thus,  the general  power  of  amendment drawn from  the Code of Civil Procedure must be construed in the light  of the provisions of the election law and applied with  such   restraints  as  are  inherent  in  an  election petition. It  appears to  us that  the High  Court  did  not properly consider  the provisions  of the election law while repeatedly allowing  amendments of  the election petition in the present  case. The  High Court  allowed  an  application Ex.27 filed  by the  election petitioner  for permission  to amend the  petition on 28.11.91. Yet another application for amendment of  the election petition, Ex.44 was again allowed by the  High Court  on 18.12.91.  The petitioner filed still another application,  Ex.47A, to  again amend  the  election petition and  the High  Court allowed  the same  on 18.1.92. Even after  the pleadings  were  completed  and  the  issues framed on  21st of  January 1992  and a part of evidence had been led  by the  parties, the  High Court  allowed one more application filed  by the  election petitioner No.1, Ex.701, and  permitted   an  amendment  of  the  election  petition, apparently to  bring the  evidence in  conformity  with  the pleadings. In  the first  place, the High Court ought not to have allowed  evidence to be led by the election petitioners which was  beyond the pleadings of the parties for no amount of evidence  can cure  a defect  in the pleadings but it was all the  more improper  for the  trial court to have allowed the  pleadings  to  be  amended  so  as  to  be  brought  in

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conformity with the evidence already led in the case. To say the least,  it was  not a desirable or a proper course to be adopted in  an election  petition where,  as pointed  out by this Court  in Jagannath  Vs. Jaswant  Singh (1954 SCR 892), the statutory  requirements of  the law  of election must be strictly observed.  Of course, since evidence was allowed to be led,  though beyond  the pleadings without any objections from the  opposite side,  the court could have evaluated and analysed the  same to  determine the worth of that evidence, which in  the facts and circumstances of the case came under a cloud  but to  allow the amendment of the pleadings with a view to  confer a ‘legal status’ on the evidence already led was to  say the  least improper.  The reasons  given by  the learned trial  judge to  allow the  election petition  to be amended repeatedly ignores the sanctity which is attached to the pleadings  and the  affidavit filed  in  support  of  an election petition,  which under  law is required to be filed within a  prescribed time  and those  reasons do not impress us. We need say no more on this aspect of the case.