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PETITIONER: BABURAO BAGAJI KAREMORE & ORS.

       Vs.

RESPONDENT: GOVIND & OTHERS

DATE OF JUDGMENT27/11/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN GOSWAMI, P.K.

CITATION:  1974 AIR  405            1974 SCR  (2) 429  1974 SCC  (3) 719  CITATOR INFO :  E          1975 SC 290  (3)  MV         1975 SC1417  (35)  RF         1976 SC1187  (31)  F          1976 SC1599  (32)

ACT: Representation  of  the People Act, 1951--S. 100  read  with sub-secs.  1,  2,  3,  3A, 4,5 and 6  of  s.  123--  Corrupt practice--Scope of.

HEADNOTE: The first respondent was declared elected to the Maharashtra Legislative  Assembly getting the highest number  of  votes. His election was challenged by 4 electors on various grounds of corrupt practices under s. 100 read with sub-sections  1, 2, 3, 3A, 4, 5, and 6 of s. 123 and for contravention of the provisions  of s. 127-A of the Representation of the  People Act, 1951. It was alleged in the petition that the first respondent did not  keep  separate and correct account of  all  expenditure incurred and authorised in connection with his election, nor were  his accounts kept in accordance with s. 77 of the  Act read with Rule 86 of the Conduct of Election Rules.  He  did not  obtain vouchers for every item of expenditure  incurred etc., as prescribed by s. 77 of the Rules framed thereunder. He suppressed many items of expenditure which were in excess of  the authorised amount of Rs. 12,000/-. Secondly, it  was alleged by the petitioners that in an election meeting  held on February 18, 1972, the agent who was an active  supporter of  the first respondent, made a false statement of fact  in relation to the personal character and conduct of respondent no.  2, as well as petitioner No. 1. It was alleged that  he made  a  statement  in  his  speech  in  that  meeting  that respondent  no. 2 secured the withdrawal of  the  petitioner no.  1 by giving him a bribe of Rs. 60,000. According  to the petitioners, the first respondent got  the said  statement  published in a weekly dated  23rd  February 1972,  and the statement was published with the  consent  of the first respondent as his election agent.  Further, it was alleged  that he printed election pamphlets and  posters  in which he appealed to the voters on the grounds of caste  and community.   The petitioners gave instances to show how  the

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propaganda   was  carried  on  the  by   issuing   pamphlets containing  false  statement of facts and  which  the  first respondent  or its maker either believed to be false or  did not believe to be true. The  first respondent denied that he made any  statement  in relation to the personal character or conduct of the  second respondent,  nor did his election agent or workers with  his consent, make any such statements nor could it be said  that any   of  the  statements  were  reasonably  calculated   to prejudice the prospect of his opponent.  It was also averred that  the  expenditure  shown by him in the  return  of  his expenses  was correct and the return was in accordance  with law  and  the rules framed thereunder ; that  there  was  no contravention  of s. 77 of the Act read with rule 86 of  the Rules and denied that he incurred expenditure much more than Rs. 12,000/as alleged.  Although the third respondent filed his written  statement, practically admitting  all the allegations in the  petitions against  the  1st  respondent,  subsequently  he  filed   an application  for  permission to withdraw the  power  of  his counsel one Mr. Desh mukh through whom he filed the  written statement.  Deshmukh was permitted  to withdraw hid  written statement.   Thereafter, the third respondent did  not  take any  apart proceedings.  Respondent No. 4  neither  appeared nor   filed  his  written  statement.   Later,  the    trial proceeded  ex-parte  against. both response Nos.  3  and  4. Respondent  No.  2  though represented,  did  not  file  his written statement.  On these pleadings, as many as 31 issues were framed by the High Court of which issue no.  1  related to  a preliminary objection that the petition was liable  to be rejected for non-joinder of all the persons who had filed their   nomination papers for the election.  The High  Court decided the 1st issue against the first respondent, but  all other  issues  were held not proved by the  petitioners  and therefore,  the petition was dismissed with  costs.   Before this  Court,  the appellants restricted their  case  to  the three heads if corrupt practices viz.(1) under s. A602Sup.CI/74 430 123(4)  of  the Act, for Publication of false  statement  of facts  in relation to personal character or conduct  of  the candidate  or  in relation to the candidature or  its  with- drawal;  (2)  under S. 123(6) for incurring  or  authorising expenditure  in  contravention of S. 77 of the Act  and  (3) under S. 123(3) for making an appeal on the ground of  caste or  community  by  printing,  publishing  and   distributing pamphlets Ex. 42 and 43. Dismissing the appeal, HELD : (1) Taking the last head under issues 19 and 21 which relate  to two pamphlets, Ex. 42 and 43 in which a  communal appeal  had  been made to the electors to vote for  the  1st respondent  there  is  no doubt that Ex. 42 and  43  made  a communal  appeal  to  Kunbi  and Teli  voters  to  vote  for respondent no. 1. If these pamphlets are proved to have been printed,  published and distributed by the  1st  respondent, then  he  will  be guilty of  corrupt  Practice  within  the meaning of sub.S. (3) of S. 123 of the Act.  The High Court- found   that  they  were  neither  printed,   published   or distributed  by or on behalf of the first respondent nor  by his election agent or by his workers with his consent or the consent of his election agent.  On a perusal of the evidence as a whole and having considered the contentions advanced by both the         parties, it cannot be said that the fin  of the  learned  trial  judge that Exts. 42  and  43  were  not Printed.  or  published or distributed before  the  date  of

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polling,  is  vitiated  and on  evidence,  this  finding  is clearly sustainable. (ii) As  regards  the second head which relates  to  corrupt practice under Sub-s. (6)     of  Sec.  123 of the  Act  for incurring or authorising expenditure in contravention of  S. 77, the learned trial judge was of the view that it had  not been  shown how there was non-compliance of S. 77 read  with S.  86  and also no arguments were advanced on  this  point. Every item of expenditure that has been shown in the  return has  been  supported by the original voucher which  was  not challenged.  Nor anything had been brought to the notice  of the  Court to show that there had been any averment  in  the pleading that the accounts filed were not a true copy of the accounts maintained.  Therefore, the requirements of ss.. 77 JUDGMENT: (iii)     As  regards addition of Rs. 2992-95 to the  amount of  Rs. 7,499-11 found by the High Court, it can be  pointed out that there is no justification in adding this amount  to the total because Exts. 86 ad 87 were given on behalf of Jan Singh  and  Congress  parties, whose  names  also  had  been written  on those chits by the persons signing them  at  the petrol  pump.   Further,  in  respect  of  the   expenditure incurred  in illuminating the truck and hiring the  tractor, the  evidence  so  adduced by  the  witnesses  were  rightly disbelieved by the trial court.  The evidence in  connection with hiring of cycles was also not reliable.   Similarly the trial Court had rightly rejected the evidence in  connection with  Kirti  Hotel expenses of Rs 1,959/-.  As  regards  the amounts paid to Laxmi Litho works for printing etc. the High Court was right when it said that Ex. 62 was a  consolidated receipt  of Rs. 765/- and this amount had been  included  in the return of election expenses.  Similarly, the High  Court had  rightly  rejected  the  allegation  of  certain  petrol expenses  incurred  by  the 1st respondent.  A  sum  of  Rs. 1,938-50  however,  is not accounted for and in  absence  of satisfactory  explanation,  this amount has to be  taken  as election expenses and must, therefore, be added. (iv) Even  if the contention of the petitioner  is  accepted that Rs. 1,939/- incurred by Bhan dalal for which no account was  given, Rs. 100/- paid towards the salary of  Hari,  the driver,  Rs. 695/- in respect of Sakhare Rs. 192-40  or  say Rs.  192/in  respect  of petrol, Rs.  600/-  regarding  hire charges  of  a taxi, hired by the father-in-law of  the  1st respondent and Rs. 129/- incurred for Shende, respondent no. 1,  the several items will amount to Rs. 3,655/-.  If  these amounts are added to the election expenses already shown, it would  come  to  Rs.  11,154.  Even  on  this  seeking,  the election expenses are well within the limit of Rs.  12.000/- and  consequently  the appellant’s charge  against  the  1st respondent for committing corrupt practice under Sub-s.  (6) of s. 123 of the Act is not established. (v)  As  regards  the statement made by a protagonist  of  a separate  Vidarbha  with the consent of the  1st  respondent that  the second respondent paid a bribe of Rs. 60,000/-  to the  first respondent to withdraw from the contest  and  the allegation that the said false statement appeared in a paper with  the consent of the 1st respondent, the 1st  respondent denied that the above statement was ever made or that 431 it was made in his presence or with his consent, nor did  he have  any knowledge that it was published  paper  with  this consent or that the paper was acting as his agent.  Further, the trial court held that the witnesses who gave evidence in support of the allegations were not present at the  meeting. it  was not proved that the first respondent ever  consented

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at   the  second  respondent  to  make  the  alleged   false statement.  The trial court, therefore, rightly rejected the allegations. (vi) In examining the question whether the allegations about the commission of corrupt practices by a returned candidate, the Court has to keep in view that the allegations about the commission  of  corrupt practices are  of  a  quasi-criminal nature,  the proof whereof has a double consequence  of  not only  setting aside the election of the returned  candidate, but also imposing subsequent disqualification debarring  him from becoming a candidate at any election for a period of  6 years.  Inasmuch as the charge is a serious one and is of  a quasi-criminal  nature,  the onus of Proving  the  essential ingredients  prescribed  by sub-s.(4) of s. 123  is  on  the person who allege them. (vii)In  the  present  case, from the evidence,  it  is  not proved  that  the offending statement was made by  Dhote  an agent of respondent no 1, in the meeting or that it was made with  the consent of respondent no. 1, The  appellants  have not established the corrupt practice under this head also by any credible evidence. (viii)    As regards the costs "incurred" in section 96  and 119   of  the  Act,  it  means  what  is  actually   spent,. Accordingly,  in the present case, it was incumbent  in  the High  Court  to award costs to the  first  respondent  which costs  he  was  entitled to if he could  show  that  he  bad incurred them.  Admittedly, there was no proof of payment of any fee to counsel by the first respondent.  As such,he will not  been titled to the amount of Rs.400/- per diem  awarded by  the High Court.  The first respondent cannot be  allowed to  file any fee certificate before this Court since he  had not done earlier. Laxminarayan  v. Returning Officer, C. A. No. 1014 of   1972 decided on September  28,     1973, referred to.

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 901 of 1973. Appeal  under  Section  116A of the  Representation  of  the People  Act 1957 from the judgment and order dated the  12th February,  1973 of the High Court at Bombay,  Nagpur  Bench, Nagpur, in Election Petition No. 2 of 1972. K.   H.   Deshpande,  A.Shelat,  N.  M.   Ghatate   and   S. Balakrishnan, for the appellants. S.   N.  Kherdekar, V. S. Sirpurkar, K. V. Sirpurkar, C.  K. Ratnaparkhi and A. G. Ratnaparkhi, for respondent no. 1. Gulab Rao Patel and Shiv Pujan Singh, for respondent Nos. 2- 4. The Judgment of the Court was delivered by JAGANMOHAN  REDDY,  J.-The  first  respondent  Govind  Ramji Shende  was declared elected as a member of the  Maharashtra Legislative  Assembly from Bhandara general constituency  on March 11, 1972.  Fifteen persons had filed their  nomination papers,  before the last date for filing the nominations  on February  8,  1972.   These  nomination  papers  were   duly scrutinised  on February 9, 1972 and accepted as valid.   By the  date fixed for withdrawal on February 11, 1972,  eleven persons  who  had  filed their  nominations  withdrew  their candidature  leaving  only  four  persons  to  contest   the election.   Of  these  the first  respondent  contested  the election as an independent 432 candidate,  the  second  respondent  Tirpude  contested   on Congress  (R)  ticket, the third respondent contested  as  a

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Republican   Party   (Khobragade  Group)  and   the   fourth respondent as a Republican Party (Gaikwad Group) candidates. These candidates polled respectively 41,511; 24,224;  3,585; and  564  votes.   As  we  have  said  earlier,  the   first respondent was declared elected as he had polled the highest number  of votes and with a substantial majority  of  17,287 votes. Four  electors  from  the constituency, of  whom  the  first petitioner  Baburao Bagaji Karemore was one, filed  a  joint petition challenging the election of the first respondent on various, grounds of corrupt practices under s. 100 read with sub-ss. (1), (2), (3), (3A), (4), (5) and (6) of s. 123  and for  contravention  of  the provisions of  s.  127A  of  the Representation  of the People Act,  1951-hereinafter  called ’the  Act’.  It was alleged in the petition that  the  first respondent did not keep separate and correct account of  all the  expenditure incurred and authorised in connection  with his  election  between the date of the  publication  of  the notification  of  holding the election and the date  of  the declaration of the results thereof.  Nor were these accounts kept  in accordance with the provisions of s. 77 of the  Act read with r. 86 of the Conduct of Election Rules-hereinafter called  ’the  Rules’ by not showing distinctly the  date  on which the expenditure was incurred or authorised, the nature of the expenditure, the amount of the expenditure, i.e,  the amount paid and the amount outstanding, the date of payment, the  names  and addresses of payers, the  serial  number  of bills  and  the names and addresses of the persons  to  whom outstanding are payable.  It is also alleged that the  first respondent  has  not obtained a voucher for  every  item  of expenditure  and the vouchers are not arranged  serially  in chronological  order  according to the date  of  payment  as prescribed  by  s.  77  of the  Act  and  the  Rules  framed thereunder.   Although the outside limit of the  expenditure which a candidate at an election to the Legislative Assembly was Rs. 12,000/- the first respondent suppressed many  items of  expenditure which were in excess of that amount such  as expenditure on items relating to petrol, vehicles, printing, painting, loudspeaker and generator, hire charges of cycles, badges,  serving  of food and refreshment,  processions  and public meetings, bands, construction of booths, payment made to  workers,  office establishment etc.   Apart  from  these suppressions, it is also alleged that M. T. Dalal 1 R. W. 1, and Shivshankar Ninave 1 R. W. 10 who were active agents  of the first respondent were carrying on systematic  propaganda on his behalf and they were also incurring expenditure  with the consent of the first respondent as well as his  election agent  Bhole  and were authorised to  incur  expenditure  on behalf  of  the  first respondent.   Apart  from  these  two persons it was also alleged that Kharabe and Wagner, father- in-law   and  maternal  uncle  respectively  of  the   first respondent and Ramaji Gaidhane who were actually carrying on a  systematic election campaign and propaganda on behalf  of the first respondent also incurred expenses on various items with  the consent and authority of the first respondent  and his  election agent Bhole, which expenses were not shown  in the return of election expenditure submitted by the 433 first  respondent.  Several other instances were also  given by  the  petitioners and it was alleged that  if  all  these items  of  expenditure  were  included  in  the  return   of expenditure, the limit of Rs. 12,000/would exceed. Secondly,  it  was  alleged by the petitioners  that  in  an election  meeting  held  at Shahid  Maidan  of  Bhandara  on February  18,  1972  on  behalf  of  the  first   respondent

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Jambuwantrao  Dhote,  who  belonged  to  the  Maha  Vidarbha Sangharash   Samiti   and  was   actively   supporting   the candidature of the first respondent , made a false statement of  fact  which he himself as well as the  first  respondent either believed to be false or did not believe it to be true in  relation  to  the  personal  character  and  conduct  of respondent  No.  2  Tirpude  as well  as  petitioner  No.  1 Karemore.   The said Jambuwantrao Dhote is alleged  to  have made a statement in his speech in that meeting that the res- pondent  No.  2  (Tirpude) secured  the  withdrawal  of  the petitioner  No.  1 (Karemore) by giving him a bribe  of  Rs. 60,000/-.   It was also alleged that these false  statements were, made by Dhote in the presence of the first  respondent and  with  his consent and that the  first.  respondent  was present in that meeting when Dhote delivered the speech  and also  spoke subsequently in the same meeting.  According  to the petitioners, the first respondent got the said statement published  in  the Bhandara Times, a weekly,  in  its  issue dated  February  23,  1972,  which  newspaper  was  for  all practical  purposes acting as his agent.  At any  rate,  the statement  was  published  with the  consent  of  the  first respondent and his election agent.  It  was  again alleged that the first respondent  also  got printed  or  caused  to be printed  election  pamphlets  and posters  in  which appeal to the voters on  the  grounds  of caste  and  community was made.  In this connection  it  was averred that the electors were asked to refrain from  voting in favour of respondent No. 2 (Tirpude) and other candidates on  the ground of their race, caste and community  and  were asked  to vote for himself on the ground of his race,  caste and  community with a view to further the prospects  of  his election  and to prejudicially affect the election of  other contesting  candidates.  The petitioners gave  instances  to show how this propaganda was carried on by issuing pamphlets by  making  it appear to the voters by statements  of  facts which were false and which the first respondent or the maker either believed to be false or did not believe to be true. The  first respondent denied that he made any statements  in relation to the personal character or conduct of the  second respondent  Tirpude,  nor  did his  election  agent  or  his workers with his consent or that of ’his election agent make any such statements, nor could it be said that any of  those statements  were  reasonably  calculated  to  prejudice  the prospects of Tirpude’s election.  While admitting that Bhole P.  W. 40 was his election agent, he denied that he  himself or  his  election agent Bhole or any other person  with  his consent  or that of his election agent committed any of  the corrupt  practices  alleged  in the petition,  or  that  the alleged corrupt practices had materially affected the result of the election, It was also averred that the expenditure 434 shown  by him in the return of expenses was correct and  the return  was in accordance with law and the Rules  framed  in that  behalf;  that  there was no  1  contravention  of  the provisions of s. 77 of the Act read with r. 86 of the  Rules and  denied that he incurred expenditure much more than  Rs. 12,000/-  as  alleged in the petition.  It was  also  denied that M. T. Dalal 1 R. W. 1 and Shivshankar Ninave 1 R.W.  10 were  his.  active agents and were carrying  out  systematic propaganda on his behalf or were incurring expenditure  with his  consent  as well as of his election agent  B.H.  Bhole. All  these  all negations with respect to the part  said  to have been played by M. T. Dalal also known as Bhau Dalal and Shivshankar  Ninave  were  denied.   The  first  respondent, however,  admitted  that Bhau Dalal was only  authorised  to

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purchase  petrol  and all the expenses incurred by  him  had been  shown  in  the  return of  expenses  but  denied  that Kharabe, Parashram Waghaya and Ramaji Gaidhane were actively carrying on a systematic election campaign and propaganda on his  behalf  or that they incurred  expenditure  on  various items with his consent and authority or with the consent  of his  election agent Bhole.  It was submitted that  if  these persons  did incur any expenses it was on their own  account and  as  friends or relatives, but he had not  consented  to their incurring the same nor did he authorise them to  incur such  expenses.   In  so far as the use  of  cycles,  bands, loudspeakers,  petromax and jeeps was concerned,  he  denied that all of them were hired by him or his election agent  or with his consent or with the consent, of his election agent. Similarly  the various other items of  expenditure,  besides those  shown  by him in the return of  expenses,  were  also denied   as  having  been  incurred  during   his   election propaganda  either  by him or his election agent or  by  any person  with the consent of his election agent.   All  other allegations  in  respect of providing  free  conveyance  for carrying the voters to polling booths or of having asked the voters   to  refrain  from  voting  in  favour  of   Tirpude respondent  No. 2, or the other candidates on the ground  of caste  and community or in having asked the voters  to  vote for himself on the ground of his race,. caste and community, or  of having Promoted or attempting to promote feelings  of class   or  religious  hatred  or  of  having  printed   and distributed  the several pamphlets mentioned in paras 35  to 38 of the petition were denied.  Nor was any of the  alleged acts  indulged in to further the prospects of  his  election and  to  prejudicially  affect the  election  of  the  other contesting  candidates.   The  averment  that  he  and   his election   agent  made  allegations  against  the   personal character  or conduct of Tirpude respondent No. 2 were  also likewise denied. The first respondent further denied knowledge of the  public meeting  held  on  February  18,  1972,  at  Bhandara  where Jambuwantrao  Dhote  is alleged to have made a  speech.   He denied that any statement relating to the personal character and  conduct  of  Tirpude (second  respondent)  as  well  as Karemore (first petitioner) was made either by  Jambuwantrao Dhote  or by him or that those statements were made  knowing them  to  be  false or not believing them to  be  true.   He denied  all knowledge about Jambuwantrao Dhote  having  made any  statement  assailing the conduct and character  of  the rival  candidate Tirpude.  He denied that he was present  at the said meeting 435, wherein  Dhote  is alleged to have delivered the  speech  or that he spoke in the said meeting.  He also denied that  the Bhandara Times, a Weekly published at Bhandara was making  a propaganda on his behalf or that the said Weekly was  acting as his agent.  Accordingly he denied committing any  corrupt practice  within the meaning of s. 123 (1), (2), (3),  (3A), (4), (5) and (6) of the Act. Shende  also  denied. that he got printed or  caused  to  be printed  election  pamphlets  and posters  contrary  to  the provisions of s. 127-A of the Act nor did he make any appeal on  the  ground  of caste and community  and  exploited  the communal  sentiments  or appealed to the voters  to  refrain from  voting  for  the other candidates  belonging  to  the, scheduled caste. At  this  stage  we  may point out  that  though  the  third respondent filed his written statement practically admitting all  the  allegations  in the  petition  against  the  first

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respondent, subsequently he filed an application that he  be permitted  to  withdraw  the  power of  his  counsel  A.  M. Deshmukh  through whom the written statement was  filed  and also to withdraw his written statement.  A. M. Deshmukh  was permitted to withdraw his power from the case, but the third respondent  was  not  permitted  to  withdraw  his   written statement.  Thereafter the third respondent did not take any part in the proceedings.  Respondent No. 4 neither  appeared nor  filed  his written statement.  Consequently  the  trial proceeded  ex parte against both respondents Nos. 3  and  4. Respondent No. 2 though represented did not file his written statement, On  these pleadings as many as 31 Issues were framed by  the High  Court, of which Issue No. 1 related to  a  preliminary objection  that the petition was liable to be  rejected  for non-joinder   of  all  the  persons  who  had  filed   their nomination papers for the election.  The High Court  decided this  issue  against  the first respondent,  but  all  other issues   were  held  not  proved  by  the  petitioners   and consequently  the petition was dismissed with costs  of  the first  respondent  together with the counsel’s  fee  of  Rs. 14,400/-.   As the first respondent was represented by  more than  two counsel, and as there were 36  effective  hearings coursers fees where the first respondent was represented  by more  than  two  counsel  was  assessed  at  Rs.  400/-  per effective  hearing, and where only one  counsel  represented him  it  was assessed at Rs. 250/-  per  effective  hearing. Respondent No. 2 was not awarded any costs as he was held to be colluding with the petitioners who in fact were espousing his  cause.  Respondents Nos. 3 and 4 were also not  awarded any  costs  as  they were ‘exparte.   The  petitioners  were directed to bear their own costs. In  this appeal the learned Advocate for the  appellants  at the   very   outset  indicated  that  the   appellants   are restricting  their  case  to  the  three  heads  of  corrupt practices, namely :-               1.    Under   s.   123(4)  of  the   Act   for               publication  of  false statements of  fact  in               relation  to personal character or conduct  of               the   candidate   or  in   relation   to   the               candidature or its withdrawal.               436               2.    Under   s.  123(6)  for   incurring   or               authorizing expenditure in contravention of s.               77 of the Act.               3.    Under s. 123(3) for making an appeal  on               the ground of caste or community by  printing,               publishing and distributing pamphlets Exts. 42               & 43.               issues under the first head are as follows               23    (a)  Did  the  respondent  no.   1  make               statements  of facts in relation  to  personal               character   or  conduct  of   the   contesting               candidate  N.  K. Tirpude by himself,  by  his               election agent or his workers and agents  with               his consent and that of his election agent ?               (b)   -Were  these statements false  and  were               believed  by  the  respondent no.   1  or  his               workers  to  be false and not believed  to  be               true ?               (c)   -Were   these   statements    reasonably               circulated  to prejudice the prospects of  the               election of Tirpude ?               The  finding  of the High Court on  all  these               Issues was in the negative.

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             26  (a)  Did  Jambuwantrao  Dhote  address  an               election   meeting  on  18-2-1972  at   Shahid               Maidan, Bhandara ?               (b)   -Did he in that meeting make a statement               of fact in relation to the personal  character               and conduct of Tirpude and Karemore ?               (c)   -Was   such  statement  false   to   the               knowledge   of  the  maker  as  well  as   the               respondent n. 1?               (d)   -Did   Dhote  in  his  speech   make   a               statement that Tirpude secured the  withdrawal               of  Karemore  by  giving him a  bribe  of  Rs.               60,000/- and was this a false statement ?               (e)   -Was this statement made in the presence               of the respondent no.  1 with his consent ?               (f)   Was  the  statement  published  in   the               Bhandara Times purported to have been made  by               Dhote,  published  with  the  consent  of  the               respondent no. 1 and his election agent ?               (g)   -Was  the Bhandara Times acting  as  the               agent of the respondent no. 1 ?               The High Court though it held on issue No.  26               (a)  that such a meeting was held at  Bhandara               found in respect of issues 26 (b) to (g)  that               they were not proved.               437               Issues under the second head are as follows :               2.-Did  the respondent no.  1 or his  election               agent  B. H. Bhole and other persons with  the               consent  of the respondent no.  1  Shende  and               his  election  agent  commit  acts  enumerated               hereunder :               (a)  (i)   Incurring    or   authorising    of               expenditure in contravention of section 77  of               the Representation of the People Act ?               (ii)  Not   keeping   the   account   as   per               provisions of section 77 read with rule 86  of               the Conduct of Election Rules ?               (iii) Not arranging serially in  chronological               order  the vouchers according to the  date  of               payment  as prescribed by section 77  and  the               Rules framed thereunder.               (d)   -Did  the respondent no.  1 take  out  a               procession    on   1-3-72    accompanied    by               loudspeaker, band, tube lights, petromax  etc.               and   incur  expenditure   therefore   through               himself  or his election agents and  were  not               accounted for in the return ?               The  finding of the High Court on issue 2  (a)               (i)  to (iii) was in the negative and that  on               issue   2  (d)  was  that  expenses  for   the               procession  dated  March  1,  1972  have  been               accounted for in the return.               3. Did     the  respondent no.  1 take  cycles               on hire as under               (d)   15 cycles for 20 days at the rate of Rs.               1.50  per day from Fakruddin Patel  of  Chhota               Bazar, Bhandara?               The High Court found this. issue not proved.               4. (b)     Did  the workers of the  respondent               no.   1  take their meals at the cost  of  the               respondent no. 1 at Kirti Boarding and Lodging               Hotel, Bhandara ?               (c)   Did  the  respondent no.   1  incur  and               expenditure of about Rs. 2,000/- on the  meals

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             and refreshment of these workers ?               (d)   Did  the  respondent no.   1  incur  and               expenditure  at the Kirti Hotel od  Rs.  630/-               between 10-2-72 to 18-2-72, Rs. 715/-  between               19-2-72 to 29-2-72, Rs. 650.55 between  1-3-72               to 6-3-72 ?               (e)   Was  thid amount paid by the  respondent               no.  1 through Sheoshankar Ninave ?               Was  this expenditure incurred by Ninave  with               the consent and authorisation of the  returned               candidate Shende or his  election agent ?               The  finding  of the High Court on  all  these               issues was in the negative.               438               5. (a)     Did  the  respondent  no.  1   hire               jeeps,  Ambassador  cars, taxies,  tempos  and               tractors  for  the  purposes  of  can  in  the               constituency bearing nos. 1 MPC-9029-Jeep, (2)               MRG-98-Taxi, (3) MHC- 191  taxi, (4) (4)  MRG-               2216-Car, (5) MHN-4391-Car, (66)  BYJ-5107-Car               (7) MHG-3105- Truck, (8)  MHG-3638-Tractor,(9)               MHX-5080-Tractor, (10)    MHG-2902-Tempo   and               (11) MHG-143-               (b)   Were the above vehicles taken on hire by               the  respondent Taxi ? no.1  and used  by  him               and  his workers and his election, agent   for               the purposes of election propaganda?               (c)   Did the workers of the respondent no.  1               use  those  vehicles with his consent  or  his               election agent ?               The finding on issuer 5(a) was that only  Taxi               No.   MHG-191  was  hired  but  not   by   the               respondent no.  1 ; finding on issue 5(b)  was               that Taxi No. MHG-191 was used by the  workers               of  the respondent no.  1 for the  purpose  of               election  propaganda and the finding on  issue               5(c) was in the negative.               7.    (d)  Did the respondent no.  1 incur  an               expenditure of Rs. 8,000/ for the purchase  of               petrol and diesel oil for cars, jeeps, taxies,               trucks and tractors from various petrol pumps,               such   as   Gurjar  Brothers   Petrol   Pumps,               Bhandara,  Petro]  Pump of Sale  and  Purchase               Society at Tumsar and from Kulwal and Sons  of               Tumsarfor the purposes of the several vehicles               used by him for an election propaganda, and               (e)   Was this expenditure incurred by him  or               his  workers  with  his consent  or  with  the               consent of his election agent ?               (f)Did  the respondent no.  1 purchase  petrol               and diesel oil, through M. T. Dalal,  Kharabe,               Ninave and Saxena ?               (g)   Were  the  charges for the  purchase  of               this  petrol and diesel actually  incurred  by               the respondent no.  1 through his workers ?                (h)  Did   the   respondent   no.    1   take               camouflage receipts in the name of Jana  Sangh               and  Congress (0) parties to conceal the  true               nature   of  the  transactions,   though   the               expenditure,  was incurred and  authorised  by               him ?               The finding on issue 7(d) was that petrol  oil               etc.  worth  Rs. 2,992-95 was  purchased  from               Gurjar  Brothers  in addition  to  the  amount               shown in the return of expenses ; the  finding

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             on 7(e), (f) and (g) was in the affirmative as               regards the total amount of Rs. 3,970-35;  the               finding on 7(h) was in the negative.               11.   (a)  Did  the respondent no.   1  incure               expenditure  of more than Rs. 6,000/- for  the               pay  of 10 drivers and for the meals, tea  and               refreshments  for  the workers  at  Panchsheel               Lodge,  Bhandara, Baba Rup Lodge, Bada  Bazar,               Bandara and Kirti Hotel, Bhandara ?               439                (b)  Was  this expenditure  incurred  by  the               respondent,  no.  1 personally as well  as  by               his election agent and other Workers: with the               consent  of  the  respondent  no.   1  or  his               election agent at various place throughout the               constituency,   including   Mohadi,    Warthi,               Bhandara, Shahpur and Kardi ?               The  finding on issue 11(a) is that it is  not               proved except ’the extent of Rs. 230-60 and on               (b) that it does not arise except for Rs. 230-               60.               14.   (d)  Did  the  respondent  no.   1   got               prepared printed.               posters  in  various  sizes  and  got  printed               badges  in  3  varieties of  about  10,000  in               number ?               (e)   Did  he  incur  an  expenditure  of  Rs.               8,000/- for this purpose ?               (f)  Did  the  respondent  no.   1  incur   an               expenditure of Rs. 800 for preparing  stencils               for wall paintings and for painting the  walls               through paid workers at different places  like               Bhandara,  Mohadi,  Eklari,  Warthi,  Shahpur,               Dhargaon, Dardha, Karadhi, Mundri, etc. ?               The  finding of the High Court on issue  14(d)               is  that  respondent no. 1  got  printed  from               Laxmi  Litho Works 5500 posters in  two  sizes               and  25000 badges but the expenses  have  been               accounted for ; on issue 14(e) the finding  is               that respondent no.  1 incurred expenditure of               Rs.  765/- on printing of posters  and  badges               which are accounted for and on issue 14(f) the               finding  is that besides what has been  stated               in the return, respondent no.  1 did not incur               any more expenditure.               15. (a)    Did the respondent no.  1 get  more               than   lakhs  of  copies.  of  pamphlets   and               incurred thereon an amount of Rs. 1,000/- ?               (b)   Did  the respondent no.  1  get  printed               and  published the pamphlets such as  (1)  Lok               Shikshan   Karita   Mat  Patrika,   (2)   Naya               Yuvkanche  Awahan,  (3)  Nimra  Nivedan,   (4)               Chhatra Chhatraya Nava Yuvak Bhaiyo Aur  Bahno               Jahir  Paigam, (5) Chala, Cycle-la  vote  apan               Devoo;  (6)  Namra Nivedan,  (7)  Jambuwantrao               Dhote  Yanche Jagir Bhashan, (8)  Jan  Jagriti               Parcha,  (9)  N.  K.  Tirpud  Khalil   Prashan               Chettar  dya, (10) Teli Matdar Bandhu  Bhagini               Na  Awahan, (11) Kunbi Matdar Badndhu  Bhagini               Na Awahan, (12) Khoote Kadhi Bolnar Nahi ?               The finding of the High Court on 15(a) is that               respondent no.1 got printed only the pamphlets               at  serial  Nos.  1,  3,  6,  and  7  incurred               expenditure  thereon as shown in  the  return,               and  on  (b)  in that  respondent  no.  1  got

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             printed  and published only the, pamphlets  at               S. Nos; 1, 3, 6 and 7.               440               16.   (b)  Did the respondent no.  1 not  show               in  his return all expenses aforesaid  or  any               part   of  it  and  thereby  contravened   the               provisions of section 77 of the Representation               of  the  People Act and  committed  a  corrupt               practice within the meaning of section  123(6)               of the Act ?               The  finding is that respondent no.1  did  not               show the amount ,of Rs. 2,992-95 but that does               not  amount to a corrupt practice  within  the               meaning of s. 123(6) of the Act.               The  net  result of these  findings  was  that               though  the first respondent had shown in  his               election  return  a  sum of  Rs.  7,749-11  as               election expenses a further sum of Rs.  2,992-               95 was added by the High Court as amount spent               on petrol but not included in the return.   If               this :sum was added to the amount shown in the               election  return the total amount of  expenses               as  have been found by the High Court to  have               been incurred by the first respondent came  to               Rs.  10,741-96  which  was  still  within  Rs.               12,000/-  permissible  under  the  law  to  be               incurred.               The issues under the third head are as follows               :               19. (a)    Did  the respondent no.  1 issue  a               pamphlet  which  was printed  at  Bharat  Seva               Chhapakhana at Bhandara and published by S. G.               Balpande,  Eklari,  which is signed by  N.  S.               Motorola  of  Mohadi, Sakharam  Narayan  Singh               Dipte and S. G. Balpande Alkari ?               (b)   Was  this  pamphlet published  with  the               consent  of  the  respondent  no.  1,  or  his               election agent ?               (c)   Was it widely distributed throughout the               constituency  by  the respondent  no.  1,  his               election agent, or his workers and agents with               the  consent of the respondent no.  1 and  his               election agent ?               On these issues the finding of the High  Court               was in the negative.               21. (a)    Did  the  respondent no.  1  get  a               pamphlet printed and published from the Bharat               Seva  Chhapkhana,  Bhandara published  in  the               name  of Tukaram Rakhlu Shende and  signed  by               Tukaram  Rakhlu  Shende,  Mandvi,  making   an               appeal to the voters on the Kunbi community ?               (b)   Was  this  pamphlet  published  by   the               respondent  no.   1 or his election  agent  or               Tukaram Rakhlu Shende with the consent of  the               respondent no.  1 or his election agent ?               (c)   Did this pamphlet amount to an appeal to               the  voters on the basis of caste and  was  it               meant  to create hatred between the caste  and               community or class and soliciting votes in the               name of caste and community ?               (d)   Does  this  amount to  corrupt  practice               within the meaning of section 123 of the Act ? 441 The  finding on issue 21(c) was in the affirmative and  that on  (a),  (b) and (d) was in the negative.  In  other  words

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though the pamphlet specified in issue 21(a) amounted to  an appeal  to  the voters on the basis of caste  and  meant  to create  hatred between the caste and community or class  and soliciting votes in the name of caste and community. it  was not  printed  and published by the first respondent  or  his election agent or Tukaram Rakhlu Shende with the consent  of the first respondent or his election agent. We  will  take the last head under issues 19 and  21  first. These  relate to two pamphlets, Exts. 42 and 43, in which  a communal  appeal  to  the electors to  vote  for  the  first respondent was made.  Exhibit 142 is a pamphlet which  makes an appeal to the Kunbi voters while Ext. 43 makes an  appeal to  the Teli voters.  The appeals in these exhibits  are  as follows Exhibit 42 :              To Kunbi Voters Brothers-Sisters.                            Appeal Voters    Brothers-Sisters,   there   are   in   all    nine constituencies  in  Bhandra  district; and out  of  them  in Bhandara, Tumsar, Adyal and Pauni constituencies, there  are only  70,000 Kunbi voters.  While deciding the candidate  in this area, the Congress has not taken notice of the strength of  the Kunbi community and Congress leader Shri Tirpude  of this district has purposely left aside the Kunbi  community. This means there is no place of honour in this area to Kunbi community.               Therefore Kunbi  voters               (1)   be united and defeat Congress  candidate               Shri Tirpude to achieve its place.               (2)   Community  leader  Shri  Govind   (Dada)               Shende be elected by overwhelming majority.               On   Cycle  Symbol  Symbol  of  Cycle]   after               affixing stamp, elect the Dada Shende.               Yours humbly,               (Vinit)               Tukaram Rakhalu Shende, Mandwavi,               Taluq, District Bhandara.               Publisher : Tukaram Rakhalu Shende, Printer  :               Bharat Seva Chhapakhana, Bhandara. Exhibit 43 :                To Tell Voter Brothers-Sisters                            Appeal There are nine constituencies in this Bhandara district. out of  them, in Bhandara, Adyal, Tumsar  constituencies,  there are about 442 60,000 Teli voters. in this election, Congress has not taken any  notice of the active workers of the Teli  community  in this  constituency,  and in the name of Teli  community,  an outsider  rich  lady  is set up  from   Pauni  constituency. Likewise,  by denying a ticket granted to Shri the  feelings of the Teli community are hurt. Behind  this misdeed of them, it is obvious that there is  a hand  of  Shri  N. K. Tirpude,  a  Congress  candidate  from Bhandara constituency._ For this misdeed of theirs, Teli community should teach  him a lesson in this election. It  is requested that the voter brothers, sisters from  Teli community  should  put mark on the Cycle  symbol  of  Govind (Dada) Shende and elect him by overwhelming majority. Yours humbly, (Vinit) M.S.  Motghare, Mohadi, Sakharam Narayanji  Dipate,  Mohadi, S.G. Balpande, Ekalari. Publisher  :  S.G. Balpande, Printer : Bharat  Seva  Chhapa- Ekalari                           khana, Bhandara.

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If  these  pamphlets  are proved to have been  issued  by  a candidate  or  his  agent or by any other  person  with  the consent of a candidate or his election agent, to vote on the ground  of his religion, caste, race, community or  language or  they  are  used as an appeal to  religious  symbols  for furtherance  of  the  prospects  of  the  election  of  that candidate  which prejudicially affects the election  of  any candidate,  then  he will be guilty of  a  corrupt  practice within  the  meaning  of sub-s. (3) of s. 123  of  the  Act. There  is  no  doubt that Exts. 42 and 43  make  a  communal appeal  to Kunbi and Teli voters to vote for respondent  No. 1.  Not only do they have that effect, but they also  impute to  the  rival  candidate Tirpude respondent No.  2  a  bias against  those  voters.  The only  question,  therefore,  is whether it is proved that these pamphlets have been printed, published  and  distributed by the first respondent  or  his election  agent or by any other person with the  consent  of the first respondent or his election agent.  The High Court, while  holding  that  the pamphlets  amounted  to  making  a communal  appeal, found that they were neither got  printed, published  or  distributed  by or on  behalf  of  the  first respondent nor by his election agent or by his workers  with his  consent  or the consent of his election agent,  and  as such  there  was no corrupt practice committed  within-  the meaning of sub-s. (3)    of s. 123 of the Act. This  finding has been attacked by the learned Advocate  for the  appellants  on  the ground that  the-  appreciation  of evidence  by  the  learned Judge of the High  Court  is  not warranted.  It is needless for us to reiterate what has over a  long  course been observed in numerous decisions  that  a finding  arrived  at  on  an  appreciation  of   conflicting testimony  by  a  Trial Judge who  had  the  opportunity  of observing  the demeanour of witnesses while giving  evidence should not be lightly 443 interfered with merely because an appellate court which  had not  the advantage of seeing and hearing the  witnesses  can take  a different view, Before a finding of fact by a  Trial Court can be set aside it must be established that the Trial Judge’s findings were clearly unsound, perverse or have been based  on  grounds  which are unsatisfactory  by  reason  of material  inconsistencies or inaccuracies.  This is  not  to say  that  a  Trial Judge can be treated  as  infallible  in determining  which  side  is  indulging  in  falsehoods   or exaggerations  and  consequently  it does  not  preclude  an appellate court from examining and appreciating the evidence in order to ascertain whether the finding arrived at by  the Trial Judge is warranted.  If that is not warranted, it can, on its view of the evidence, arrive at a conclusion which is different  from  that arrived at by the Trial  Court.   This aspect  was discussed in detail in Laxinarayan v.  Returning Officer(1),- to which we were parties. We  have  already  set out in  brief  what  the  appellant’s allegations and the respondent’s answer to those allegations were.   What has now to be ascertained is, firstly,  whether the  pamphlets Exts. 42 & 43 have been proved to  have  been printed  by Bharat Seva Chhapkhana, Bhandara and in  respect of  Est.  42  published by Tukaram  Rakhalu  Shende  and  in respect of Ext. 43 by S. G. Balpande, Ekalari; secondly,  if they  are  proved  to have been so  printed  and  published, whether  the  first  respondent or  his  election  agent  or Balpande  or  Tukaram Rakhalu Shende got  them  printed  and published  with the consent of the first respondent  or  his election  agent  and  thirdly  that  these  pamphlets   were printed,  published  and  distributed  during  the  election

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before  the date of polling.  In proof of these  allegations the appellants sought to establish (1) by direct evidence of witnesses who were present at a meeting in Saxena’s house in which respondent No. 1, Bhole P.W. 40 and    others     were present,  where  it was decided to appeal to  the  Teri  and Kunbi  voters;  (2) by evidence of the printer  who  printed them; (3) by the pamphlets being taken delivery of on behalf of the first respondent; and (4) after taking delivery  from the  printer  of  copies of pamphlets, giving  them  in  the election  office  of  the first respondent.   On  the  first circumstance, the evidence of P.W. 27 and P.W. 40 was relied upon  by the appellants.  P.W. 40 is an Advocate who  became the  election agent of the first respondent on February  21, 1972.   Both P.W. 27 and P.W. 40 speak about a meeting  held in  the house of P.W. 27 on February 11, 1972 in  which  the first  respondent  Shende, Bhau Dalal (M.T. Dalal)  R.W.  1, Saxena (P.W. 27), Dhaskar Ninawe (1 R.W. 7) and others  were present where it was decided to appeal to the Teli and Kunbi voters  who formed a majority of the electorate.  The  other witnesses who were said to have been present, namely, 1 R.W. 1 Dalal, 1 R.W. 7 Bhaskar Ninawe and the first respondent, 1 R.W.  15  Shende, denied that any talk of that  nature  took place or that any such decision was arrived at.  The learned Judge did not accept the evidence of these witnesses for the reason  that  the evidence of P.W. 27 Saxena is not  of  any value  for  substantiating the printing and  publication  of Exts. 42 and 43 because he does not mention the name of (1)  C. A. No. 1014 of 1972 decided on September, 1973. 444 P.W.  40  at  the meeting held on February  11,  1972,  even though P.W. 40 says he was present not only at that  meeting but also at a meeting held on February 12, 1972 in the house of  1 R.W. 1 Dalal at which the decision to print  Exts.  42 and  43 was taken.  Even 1 R.W. 15 Shende, 1 R.W.  1  Dalal, Bhaskar  Hardikar (1 R.W. 5) and Bhasker Ninawe (1  R.W.  7) did  not mention the name of Bhole P.W. 40 as being  present at  the  meeting held on February 11, 1972 in the  house  of P.W.  27 nor were they asked about the meeting  on  February 12, 1972 held in the house of Dalal.  They also deny  having placed   any  orders  for  printing  the  pamphlets  or   of publishing   or  distributing  the  appeal  nor  were   they signatories  to  the pamphlets.  The presence  of  P.W.  40, therefore, was held to be improbable.  The evidence of  P.W. 40  was further held to be improbable because at that  stage he was not interested in the election. The learned Advocate for the appellant contests this finding on the ground that the evidence of Saxena about the  meeting on  February 11, 1972 makes the printing of Exts. 42 and  43 probable;  that  the  learned  Judge  did  not  discuss  the evidence   of   respondent’s   witnesses   on   merits   and probabilities;  that Bhole eventually became election  agent as  such  it is quite natural to presume that he  must  have been  associated with the election campaign right  from  the start; and that in any case no suggestion was made to  Bhole that he was not interested in the election at the stage when the  matter  of communal appeal was decided.  On  the  other hand, it is submitted that a definite suggestion was made to 1 R.W. 1 Dalal and there was no point in cross-examining him when it was denied by Dalal that any such meeting had  taken place. We will now examine the evidence to see whether the  learned Judge  was  justified  in  rejecting  the  evidence  of  the appellant that at the meeting held in P.W. 27’s house it was decided to make a communal appeal, that on the next day  the manuscripts  of  Exts. 42 and 43 were discussed and  it  was

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decided  to have the same printed and published,  that  they were got printed at the Printing Press of Jagdishkumar Gupta P.W.  35 and that delivery was taken of these pamphlets  and thereafter distributed. It  is true that though Saxena says that in the  evening  of February 11, 1972 a meeting was held at his place which  was attended by Dada Shende (1 R.W. 15), Bhau Dalal (1 R.W.  1), Parashram Waghaye, Bhaskerrao Hardikar, Bhasker Ninawe,  Ram Hadau, Sarwan Hedau and some others, he did not specifically mention P.W. 40.  He, however, says that. at that meeting it was considered that as there might be 32,000 Teli and 24,000 Kunbi  voters  in Bhandara constituency and that  since  the first  respondent was a Kunbi, the support of  Kunbi  voters should be sought.  He also says that since Karemore who  was first  given a ticket by the Congress was a Teli  and  since that  ticket  had been cancelled in favour of  Tirpude,  the support of Teli community should also be sought in favour of the  first respondent as Teli candidate was deprived of  the ticket.   This  witness  also admits  that  Bhau  Dalal  was incharge of the election campaign.  The learned 445 Advocate  for the appellant contends that though  P.W.  40’s name was not mentioned, the probability that he was present, cannot   be  ruled  out  inasmuch  as  P.W.  27   does   not categorically exclude his presence when he says that  others were  also  present there.  The criticism that  it  was  not suggested  in  cross-examination  whether P.W.  40  was  not present is, in our view, not tenable, because at that  stage it  could not be ascertained what P.W. 40 would  say.   Even so, whether at that meeting P.W. 40 was present and  whether such  a  discussion took place to appeal to Teli  and  Kunbi voters,   can   only   be  ascertained   from   an   overall consideration  of the evidence and the probabilities in  the case. P.W. 40 who asserts that he was present at the meeting  held on  February  11, 1972 in the house of P.W. 27  Saxena  says that  on  that  day  after the name  of  the  candidate  for election was finalised, the respondent came to the  Bar-room to  see Advocates Bhau Dalal, Waghaye and Saxena as to  what the future programme in the election should be.  It was then arranged that they should meet at the house of Saxena in the evening  at 7 or 7-30 p.m. The meeting was accordingly  held in the house of Saxena where Saxena P.W. 27, Dada Shende  (1 R.W. 15), Bhau Dalal (1 R.W. 1), Bhaskar Ninawe (1 R.W.  7), Ram  Hedau,  Shrawan  Hedau, Bhaskar Hardikar  (1  R.W.  5), Parashram waghaye and 4 or 5 other persons were present.  At that  meeting  there were deliberations as to  how  best  to conduct  the  election  campaign and secure  a  majority  of votes.   In that meeting it was decided to make  efforts  to get  votes of Teli voters for Dada Shende.  The next day  in the morning (ie.  February 12, 1972) a meeting was  arranged with  him  at the house of Bhau Dalai (1 R.W. 1).   He  went there.   At that meeting Bhau Dalal, Shivshanker  Ninawe  (1 R.W.  10) and 2 or 3 others were present.  Bhau  Dalal  said that  some pamphlets are to be printed and that they  should go  to  the  Press.   There  were  two  manuscripts  of  the pamphlets which were to be printed.  He says the manuscripts appeared to him to contain propaganda on communal basis  and accordingly  he  expressed  his  doubts.   Then  they   were satisfied  that  they  could  not be  said  to  contain  any propaganda  on communal basis.  The two manuscripts  on  the basis  of  which the pamphlets were to be  printed  had  the caption   "Teli  Bandhawana  Awahan  and  Kunbi   Bandhawana Awahan".   He  also  admits that while  he  and  Shivshankar Ninawe were going to invite Jambuwantrao Dhote, on their way

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to Pind Kepar, they went to Bharat Sewa Press and  collected the  two  types of pamphlets referred to above.   They  then returned the pamphlets to the election office and  deposited them  there.  He also says that he took out a few  pamphlets from those bundles and they went to Pindkepar; that he  read those  pamphlets  after they were printed  and  the  printed pamphlets  were the correct copies of the manuscripts  which he  had read earlier.  Exhibits 42 and 43 were shown to  the witness.  He said that those pamphlets were similar to those taken  by them from Bharat Seva Press.  The manuscripts  42A and  43A were also shown to him and he said that  they  were the  same  which he had read earlier at the  house  of  Bhau Dalal.   He admits that he was appointed election  agent  of the first respondent on February 21, 1972 3--M60Sup CI/74 446 and  the declaration forms to that effect were submitted  to the Returning Officer on the same day.  In cross-examination he admitted that  he took interest in this election in order to get himself acquainted with political life and to get  an opening in politics.  What is more, he went to the length of admitting  that  he  had not so far read  the  election  law though  he took part in the mid-term Lok Sabha  election  of 1971 and the 1972 Assembly elections.  When the  manuscripts Exts. 42A and 43A of which Exts. 42 and 43 were the  printed pamphlets were. shown to him he said he could not  recognise the  handwriting  though he admitted he  knew  Bhau  Dalal’s handwriting.   He did not say they were written by  him  nor were  they  according to him in the  handwriting  of  Bhole, Saxena,   Bhaskar   Ninawe,  Shivshankar   Ninawe,   Bhaskar Hardikar.  He says he does not know the persons whose  names appear as signatories to the pamphlets Exts. 42 and 43,  nor does  he know the publishers of the two pamphlets.  He  only came  to  know the name of Gupta whom he had known  by  face when  the pamphlets Exts. 42 and 43 were given for  printing in  his Press.  According to him he had gone to Bharat  Seva Press  with Bhau Dalal and two or three others 2 or  3  days after the date of withdrawal.  Two or three days after  that date  the  printed pamphlets were delivered to  them.  4,000 copies of each were taken and at the time of taking delivery about Rs. 50/or so were given by Shivshankar Ninawe (1  R.W. 10) to Gupta and a receipt was obtained from him by  Ninawe. He also says that at the time of taking delivery, Ninawe had not  with him the bill or the order copy from the Press  nor does he know if Gupta had written any order for the printing work. From  this  evidence, it emerges that on February  12,  1972 when  the manuscripts of Exts. 42 and 43 were seen  by  him, the  first respondent has not been. stated to be present  in the house of Bhau Dalal.  While he specifically mentions the name of the first respondent as being present at the meeting in P.W. 27’s house on the evening before, namely on February 11, 1972, his omission to mention Shende as being present on February  12, 1972 is significant.  There is no warrant  for the submission that no suggestion was made to the witness in cross-examination  that  Shende was present because  when  a witness has not mentioned the name of a person being present and it is the specific case of the first respondent that  he was not present at that meeting,.he could not be expected to suggest that he was present or even that he was not present. Secondly,  it  is rather strange that the witness  being  an Advocate  and having admitted that he had taken part in  the mid-term  Lok Sabha Election of 1971 and Assembly  Elections in  1972, he did not read the ,election law then or even  by the  time  when he was giving evidence.   Though  ordinarily

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unless one is concerned with a particular matter, he may not be  expected  to be conversant with that branch of  the  law with which he is not dealing, nonetheless an Advocate who is claiming to be an election agent and has earlier admitted to have taken part in the election work would be expected to be conversant with the election law.  This admission shows that either  he was very raw knowing nothing about  the  election law,  and hence, as stated by the first respondent, was  not entrusted with any important work, or that he had experience of election work and knowing that a communal appeal 447 to  voters  would be a corrupt practice under  the  Act  has changed   his  loyalty  to  support  the   petitioners   and Respondent No. 2 against the first respondent. It  has  been stressed with great emphasis  that  the  first respondent  admitted  that Bhole P.W. 40  was  his  election agent and hence any admission made by him in this regard  is binding   on  the  first  respondent.   Though   the   first respondent  admits appointing Bhole as his  election  agent, his case is that he had not known him personally but he  was introduced to him by Saxena P.W. 27 an Advocate, who was the Vice-President of ’ the Congress-0.  It was at the  instance of Saxena that Bhole was appointed as his election agent but was  not entrusted to do any work in the election,  nor  was Bhole  entrusted with any funds or with any work,  nor  were any  of the workers of the first respondent approaching  him for instructions, guidance and orders.  It was alleged  that Bhole volunteered to work as an election agent only for  the purposes  of getting some experience of election  work,  but was only figuring as a dummy and practically took no part in the election.  At any rate, he was not appointed an election agent at the time when the pamphlets were said to have  been printed  but subsequently.  It was then alleged  that  after the  election, Saxena Advocate and Bhole who was his  junior had  been  won over by Tirpude respondent No.  2  for  whose benefit  the  petitioners had filed the  election  petition. There  is  no doubt that Bhole changed his  loyalties  along with Saxena as pleaded by the first respondent.  He goes all out to depose to incidents alleged to have taken place which will injure the first respondent, particularly in respect of matters which others present did not speak of.  For instance he is the only witness who says that Jambuwantarao Dhote  at the meeting held on February 18, 1972, indulged in  communal propaganda when no one else who is said to have been present at  the meeting said so.  He denies that he is a  Junior  of Saxena and yet admits that he worked in 10 or 15 cases  with Saxena  as his junior.  Though he asserted that he  saw  the manuscripts of the pamphlets, is unable to give the  correct heading  of  the  appeal in Exts. 42  and  43.   The  actual heading on Exts. 42 is "KUNBI MATDAR BANDHU BHAGININA AWHAN" and  on Ext. 43 "TELI MATDAR BAN.  DHU BHAGININA AWHAN".  if his  evidence  is further scrutinised in the  light  of  the evidence of other witness, it is equally uninspiring. Bhau  Dalai’  1  R.W. 1’ while he admits that  there  was  a meeting  on February 11’ 1972 at the  house of P.W.  27  for deciding as to what action should be taken in respect of the election propaganda, he does not speak of any meeting in his own house on February 12, 1972 at which P.W. 40 was present, nor  is there, any mention by him of the  manuscripts  Exts. 42A and 43A of which Exts. 42 and 43 are printed  pamphlets, being shown or discussed.  He also denies having either seen the  proprietor  of  the Bharat Seva Chhapkhana  or  of  his having  gone  to  him to place any order  for  printing  any pamphlets  at  that Printing Press including  the  offending pamphlets.   Bhau  Dalal,  however,  says  that  after   the

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election petition was filed, he was told by.  Dada Shende (1 R.W.1) that two pamphlets regarding appeal to Teli 448 and  Kunbi  communities  have  been  filed  along  with  the election  petition and in consultation with others a  letter under  the  signature  of Dada Shende  was  written  to  the proprietor of Bharat Seva Chhapakhana about the printing  of the  pamphlets in his Press.  After a few days, Shende  told him that the proprietor of the Bharat Seva Press had given a letter  explaining his position.  Exhibit 126 is the  letter which  Shende wrote to the proprietor of the Chhapakhana  in consultation with him and these letters were acknowledged on August  11, 1972 by the proprietor (Exts. 127 and 128).   In October 1972 Shende and he (Dalal) saw the two pamphlets  in the  file  of the District Election Officer,  Bhandara.   In cross-examination,  it  was suggested to  the  witness  that there  was  a meeting in his house on February 21,  1972  at which  P.W. 40 was present.  He however, denied  that  there was  any  talk at the house of Sexena on February  11,  1972 about  the details of election work, nor was  any  programme relating  to  election discussed at the house of  Saxena  on that  evening,  nor were Bhasker  Hardikar,  Bhasker  Niwas, sheoshankar  Ninawe, Ram Hedau, Shrawan Headau and  Advocate Bhole  asked to attend the meeting at the house  of  Saxena. There  was  also no thought given between  February  11  and February 18, 1972, for the appointment of an election agent. It was on February 18, 1972, that it was decided to  appoint an   election  agent.   In  the  lengthy   cross-examination spreading  over  33 cyclostyled pages, there is not  a  sug- gestion  that  a meeting was held in Bhau Dalal’s  house  at which  Bhole was present or at which the manuscripts of  the pamphlets  Exts. 42A and 43A were considered and  discussed. It  is, in our view, idle to say that because a  meeting  at P.W. 27’s house (Saxena’s house) on the evening of  February 11,  1972 was denied, the meeting on February 12, 1972  also would  be denied, and, therefore, no questions  were  asked. If  no  questions were asked in respect of  the  meeting  of February  12,  1972,  at which the manuscripts  of  the  two pamphlets  were  alleged to have been  discussed,  then  the inference  is that the appellant did not wish  to  challenge that  any  such meeting took place, particularly  when  Bhau Dalal ascertained that the first time he came to know  about these  pamphlets was after the election petition was  filed. Surely, if the positive case of the appellant was as  spoken to by P.W. 40 that a meeting had taken place at Bhau Dalal’s house  on February 12, 1972 at which the manuscripts of  the offending pamphlets were seen and discussed, it should  have been suggested that statement was false and that the witness had  known  about  those pamphlets  much  earlier  when  the manuscripts were discussed in his house.  Even according  to P.W. 40, Shende was not present nor did he authorise at that meeting the printing or publication and distribution of  any such pamphlets.  Another significant statement of P.W. 40 is that though he expressed doubts at the meeting that the  two manuscripts of the pamphlets which were to be printed  might amount  to a propaganda on communal basis,  he  nevertheless says that when they discussed the contents of the  pamphlets they  were satisfied that those pamphlets could not be  said to contain propaganda on communal basis.  If this is so, and for  an  election  agent, particularly a  lawyer  who,  said earlier,  had  admitted having taken part in  election  work previously, and would be expected to know what would amount 449 to  a communal appeal, then the inference would be that  the manuscripts that were discussed and got printed were not the

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offending  pamphlets  Exts.  42  and  43.   It  is  however, contended  that Bhau Dalal, Ninawe (1 R.W. 7) and the  first respondent Shende admit that they met in Saxena’s house  and discussed  election strategy in view of Tirpude  filing  his nomination.   Dalal  denies that he tried to  find  out  the number of voters in Bhandara constituency caste-wise,  while Ninawe  merely  admits that there was a  general  discussion about  the election.  Shende also does not admit that  there were  any discussions about strategy.  Whether strategy  for the election was discussed at that meeting or not, and there must have been some discussion of how the election  campaign must be conducted, it will be too far fetched to infer  from that  admission that they discussed about making a  communal appeal  to  the voters.  In our view, the evidence  of  this witness  was  rightly disbelieved by the Court.  Nor  is  it established  from a reading of that evidence that a  meeting as spoken to by P.W. 40 took place on February 12, 1972,  or that the manuscripts of the impugned pamphlets, Exts. 42 and 43,  were  either discussed or it was decided to  have  been printed. The next question is whether Exts. 42 and 43 were printed in the  Bharat  Seva Chhapakhana, and, if so,  when  were  they printed.   Jagdish Kumar Gupta, P.W. 35, asserts that  Exts. 42  and  43 were printed at his Press, but the case  of  the first respondent is that they were not printed at his Press, and  in  any case they were printed subsequently  after  the election  results  were  declared  and  for  supporting  the election  petition.   The  learned  Judge  disbelieved   the evidence  of P.W. 35 on various grounds, namely, that  since the  Press was adjoining the house of Rambhat, Secretary  of the  Congress,  it was unlikely that this Press  would  have been  chosen;  that the order book Ext. 125 is only  a  bill book;  that  Shende  and Ninawe were not  asked  to  produce original  bills;  that there is no signature of  the  person placing the order, and, therefore, an adverse inference  can be drawn to hold that there was a separate order book and it was  suppressed.   The learned Judge also commented  on  the fact  that the order was not taken in the name of the  first respondent Shende; that there were no account books produced or maintained; that no acknowledgment of the delivery of the printed   material  was  taken  or  produced  nor   do   the manuscripts  Exts.  42A and 43A bear the  signature  of  the publishers.  There was also no declaration filed by P.W. 35, the  printer, as required by sub-s. (2) of s. 127-A  of  the Act and that the conduct of the witness while giving  copies of Exts. 42 and 43 in the election office was unnatural, and it  was  also noticed that P.W. 35 was a  polling  agent  of Tirpude respondent No. 2, who was a Congress candidate. The several reasons given by the learned Judge were assailed by the appellants’ Advocate and it was pointed out that Bhau Dalal  knew the printer well; that his house was across  the road; that Bharat Seva Chhapakhana was an obscure Press  and that the owner Gupta P.W.35 could be persuaded to print them without much ado; that P.W.35 does not have a separate order book  at  least for the last 2 or 3 years but  only  a  bill book; that the comment that he has not produced his 450 account  books assumes that he has account books, but  which fact  has not been suggested to him.  It is  also  contended that the reason why the order was not taken in Shende’s name was  because  the witness was asked to take the order  in  a different  name.   In support of other  matters  upon  which reliance  was  placed,  namely, that  he  did  not  maintain accounts;   that   no  accounts  were  produced;   that   no acknowledgment  of delivery of printed material  was  taken;

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that  Exts.  42  and 43 did not bear the  signature  of  the publisher, it is submitted that no questions were asked.  So far  as  non-filing  of the declaration  is  concerned,  the learned Advocate says that other printing presses like Bhan- dara  and Sharda Printing Presses did not file  declarations for all the pamphlets printed, as is clear from the evidence of P.W. 28 Sharad Hardikar and P.W. 16 Jagdish Kumar.  While it  is  not  denied  that P.W. 35 was  a  polling  agent  of respondent No. 2, it is submitted that he became the polling agent  at  a  very late stage which fact at  the  most  will necessitate  close  scrutiny of the evidence,  but  this  by itself does not warrant his evidence being rejected. It  appears  to  us that when an election  of  a  successful candidate  is challenged, particularly on ground of  corrupt practice,  it  is  not unknown that  attempts  are  made  to manufacture   or   bring  into  being  subsequent   to   the declaration  of  the result, documents  or  other  material, which  could be used for unseating a  successful  candidate. At any rate when any impugned document is hotly contested on that ground and it is the case of the respondent that it was brought  into  existence  subsequently,  the  onus  on   the petitioner who challenges the election on that ground is all the  more heavy.  It can be safely assumed  that  candidates who  take  part in elections are expected to know  that  any communal appeal to the voters will affect the result of  his election,  or expose him or any election agent or any  other person on Ms behalf who indulges in such communal appeals to a charge of corrupt practice.  The fact that P.W. 35 was the election agent of the second respondent would have  deterred either the first respondent or any one acting on his  behalf from  entrusting  such an agent with the  work  of  printing pamphlets which ex  facie make communal appeal to the voters to vote for him, unless it    is  assumed  that  they   were rockless and oblivious to the consequences. In    any  case, what  must  be  ascertained is whether  in  fact  they  were entrusted with the work at the time when it is alleged--that they were so entrusted. In  order to substantiate the averment that the evidence  of P.W.  35 is trustworthy, it is contended that he  had  filed Exts.  42  and 43 with the election office even  before  the date  of  polling  and  that  the  Collector  and   District Magistrate as also his Deputy Ramteke P.W. 18 had seen those pamphlets two or three days before the date of the  polling. The   evidence   of  these  witnesses,  it   is   contended, corroborates  the evidence of P.W. 35 that he printed  those pamphlets  before  the  date of the polling  and  had  filed copies thereof at the election office.  Apart from the  fact that these pamphlets were printed by P.W. 35, it has also to be established that they were printed at the instance of the first respondent or his agent or some other person with  his consent, and were published and distributed before March  5, 1972, the date of poll. 451 It may be noticed that under sub-s. (2) of s. 127, a  person is prohibited from printing or causing to print any election pamphlet  or  poster,  (a) unless a declaration  as  to  the identity  of  the  publisher  thereof,  signed  by  him  and attested  by two persons to whom he is personally known,  is delivered  by  him  to the printer  in  duplicate;  and  (b) unless,  within a reasonable time after the printing of  the document,  one  copy  of  the declaration  is  sent  by  the printer, together with one copy of the document where it  is printed  in the capital of the state to the Chief  Electoral Officer,  or to the District Magistrate of the  District  in which  it  is  printed.  Under sub-s.  (4)  any  person  who

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contravenes  any  of the provisions of sub-s. (2)  shall  be punishable with imprisonment for a term which may extend  to six,  months, or with fine which may extend to two  thousand rupees,  or with both.  Even assuming that a  candidate  who gets the pamphlets printed contrary to the above  provision, the printer at any rate being unconcerned with the result of the   election,   will  not  expose  himself   to   criminal prosecution  or punishment or imprisonment  by  contravening the provisions.  It is not denied that any such  declaration as required under sub-s. (2) of s. 127 was obtained or filed by P.W. 35 in the election office. P.W.  35 says that he has a printing press in his house  and he  has  no servant and does the  composing,  printing  etc. himself.   He knows Bhau Dalal well since  childhood  though Bhau  Dalal  says  he knows him by face  but  not  by  name. According to him on February 12,1972 Bhau Dalal, Sheoshankar Ninawe, Bhole and two or four other persons whom he did  not know, had come to his house at about 10 A.M. when Bhau Dalal asked him to print the pamphlets as per the two  manuscripts brought  by him.  He quoted Rs. 13/- per thousand for  4,000 pamphlets.  Then they went away.  In the afternoon at  about 3 P.M. Bhau Dalal, Sheoshankar Ninawe and Dada Shende  again came to his Press.  Shende gave him his order to print 4,000 pamphlets each according to the manuscripts and paid him Rs. 50/-  as advance.  He, however, asked him to take  down  the order  in  the name of Sheoshankar Ninawe.   He  asked  that pamphlets  and the bill for the remaining amount  should  be given  to  Sheoshankar  Ninawe who  will  pay  the  balance. According  to him, the order was taken on the printed  order book  of his Press and the original order form was given  to Ninawe but that part of the order which gives details is  in the  order book.  He produced the said book and  counterfoil which  was  in  his handwriting.  It is  Ext.  125  and  the counterfoil  is Ext. 125A.  He produced the two  manuscripts from  which he printed the exhibits, Exts. 42A and 43A.   He admits  that he does not maintain any accounts and that  his Press  is  registered under the Press Act in his  name.   He took  no declaration from Sheoshankar Ninawe,  Dada  Shende, Bhau Dalal or any other person to print this material in his Press.  About 8 or 15 days after he delivered the  pamphlets to  Sheoshankar  Ninawe,  he learned  from  one  M.A.  Khan, Proprietor, Taj Press, that copies of the pamphlet are to be given  at the office of the Election Officer.  He  gave  one copy  each of the pamphlets to some person in  the  election office   near  the  Treasury,  but  he  did  not   get   any acknowledgment  for having given the two pamphlets  in  that office.   He also admits that he had printed some  pamphlets in connection with the election of 452 1971  mid-term  Lok Sabha.  In cross-examination  he  admits that  he  was a polling agent for Tirpude in Tilak  Ward  at Bhandara.  He made an attempt to identify Exts. 42A and  43A to  be  in  the handwriting of Tukaram  Hakudu  Shende,  but immediately resiled from that statement and said that he did not know in whose handwriting the manuscripts Exts. 42A  and 43A  were, nor does he know who had signed  the  manuscripts nor  did  he  ask Bhau Dalal to put  his  signature  on  the manuscripts as it was a pamphlet containing an appeal to the Teli  and Kunbi community, nor did he take any  letter  from Bhau  Dalal  authorising  him  to  print  the  pamphlets  in accordance with the manuscript.  He does not know if Tukaram Shende  was amongst the persons who came to him on that  day either in the morning or in the afternoon.  He does not know any of the three persons under whose name the pamphlet  Ext. 43 is printed and whose name appears on Ext. 43.  He is also

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not  aware  that a declaration from the publisher is  to  be taken  while  printing.  Even at the time  of  printing  the pamphlets in connection with the mid-term Lok Sabha election he  was not aware that a declaration from the publisher  was to be taken or any such declaration was also taken.  He  did not also give a copy of the pamphlet printed in his Press in the  election office.  He further states that two  or  three days  after he had a talk with M.A. Khan, Proprietor of  Taj Printing  Press,  he  submitted a copy of each  of  the  two pamphlets  in  the  election office.  Though  he  admits  he received a letter from Dada Shende demanding from him copies of  the  pamphlets  which were distributed  as  having  been printed  in his Press, he denies that he gave any  reply  to this  letter and says that he did not think it necessary  to give  a reply to it. When his two letters dated  August  15, 1972  and  October  27, 1972 were shown  he  says  that  the letter-heads  are not his letterheads, nor are they  printed in  his Press, nor are the two letters in  his  handwriting, nor  do they bear his signature.  He, however,  admits  that the copy of the letter from Dada Shende (Ext. 126) which  he acknowledged  on  August 11, 1972 bears  his  signature  and endorsement  at the back.  He denies that any one on  behalf of  Dada  Shende came to him to ask for the  copies  of  the pamphlets  or for a reply nor does he admit that  he  handed over  the  two  letters Exts. 127 and  128  to  Dada  Shende personally  saying  that he had written the letters  in  the presence of Bhau Dalal. A  perusal of the letters Exts. 126, 127 and 128 which  were put  to him would show that Shende the first respondent  had written to him to say that translations of the two handbills which were described in those letters were filed along  with the election petition and since they were said to have  been printed  at  the  Bharat  Seva  Chhapakhana,  Bhandara,   he requested P.W. 35 to send him two copies of each of the  two handbills.  In that letter Shende also stated that he  never saw those two handbills before, vide Ext. 126.  To this, the replies  purporting to have been given by P.W. 35 are  Exts. 127  and  128  dated August 15, 1972 and  October  27,  1972 respectively.   In  the first mentioned letter  P.W.  35  is alleged  to have stated that the pamphlets were not  printed in  his  Press, that he did not know either  the  publishers referred  to by Shende or the persons who had  signed  those pamphlets.  A further statement was made in that letter that there was no body else working in his Press except  himself, and that he himself singly did the entire 453 work  of  the  Press.  This latter  statement,  it  will  be observed,  is  consistent with and is corroborated  by  what P.W.  35  has  said in his evidence.  In  the  letter  dated October 27, 1972, which was sent after inspection was  taken of  the  pamphlets in the election office, P.W.  35  made  a statement denying that he had printed in his Press any  type of   pamphlets  for  any  of  the  candidates  in   Shende’s legislative assembly elections, and that he, therefore,  did not  produce  printed  copies of the  pamphlets  before  the District  Election  Officer or in his office.   As  we  have seen,  the writing of both these letters has been denied  by the witness, who in fact, admitted that he received Shende’s letter  Ext. 126, when it is admitted that he  received  the letter  Ext. 126 from Shende, if the witness’s case is  that he printed the pamphlets and filed copies of the same before the  District Election Officer or in his office, surely  one would  have expected him frankly to say so at  the  earliest opportunity  when it was afforded to him, that he did  print them  and  filed them in the election office.  Nor,  in  our

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view,  is  it likely for Shende having written Ext.  126  to P.W.  35 to have kept silent and not pursue the matter  with P.W. 35.  Nor is it likely that when these pamphlets were an important  piece  of evidence against Shende he  would  have remained  silent and would not pursue the matter  with  P.W. 35. No  doubt  the first respondent contended that  the  letters were  genuine and prayed for their examination by an  expert but actually did not examine the expert, and consequently we are  asked to draw an adverse inference against the  letters being genuine.  The learned Advocate further contended  that there  were several discrepancies between the  evidence  put forward  by  R.W. 1 Dalal and the  first  respondent  Shende regarding  the  manner  in  which Exts.  127  and  12&  were obtained,  and  consequently  that evidence  should  not  be accepted.  At any rate, it is pointed out that the effort on the  part  of  the first respondent would  clearly  show  an anxiety  on his part to get out of Exts. 42 and 43.   We  do not quite appreciate this submission because the  pamphlets, if proved, would certainly hurt the first respondent and  he would,  therefore,  contest either the  genuineness  or  the proof   of   those   pamphlets.   There   would   be   minor discrepancies  in the evidence in every case and we have  no doubt that Bhau Dalal 1 R.W. I did not say that the  letters were signed in his presence.  In support of this  submission an  application dated November 29, 1972 filed on  behalf  of the petitioners was relied upon.  In that application  there was a reference to the suggestion made to P.W. 35 that Exts. 127 and 128 were handed over to Dada Shende by the witnesses saying  that  those  documents were written by  him  in  the presence of Bhau Dalal.  As the witness denied this  sugges- tion,  it was prayed that the documents may be sent  to  the handwriting  expert.  Both the first respondent as  well  as the  petitioners applied to have them examined, but  neither of  them led evidence of experts.  The petitioners got  them examined by an expert, but did not produce him as a  witness while the first respondent did not name an expert but  asked the  Court to nominate.  In any case no evidence of  experts was  produced by either side.  It was not also suggested  to Bhau  Dalal that the letters were signed by P.W. 35  in  his presence.  Even Shende in his examination-in-chief does  not say  that  the letters were signed by Gupta P.W. 35  in  the presence of Bhau Dalal 1 R.W. 1. All that he says is 454 hat  Ext. 127 was handed over to him by Gupta P.W. 35  while Ext.  128  was  sent  to  him  through  a  peon.   The  only suggestion  made in cross-examination was that the draft  of his  letter Ext. 126 was prepared in consultation with  Bhau Dalal  to which Shende gave a negative reply.  There  is  no suggestion that any of the letters said to have been written by  P.W.  35 were written in the presence of Bhau  Dalal  or Shende.   The story of Shende was that he sent Ext.  126  to P.W. 35 through his peon Waman and in reply thereto P.W.  35 had brought with him the letter of August 15, 1972 Ext.  127 and gave it to him in his house.  On the other hand he  said that  P.W. 35 did not tell him as to in whose  presence  the letter was written.  He stated that he had shown this letter of  P.W. 35 to Bhau Dalal and told him that it was given  to him by P.W. 35.  Shende said that he had no occasion to  see the  handwriting of Gupta P.W. 35 nor did he ask Bhau  Dalal or  Sheoshankar Ninawe to make enquiries about the  printing of  the  pamphlets.  We do not see any  discrepancy  between this statement and the evidence of Bhau Dalal.  In our view, the evidence of P.W. 35 does not inspire confidence not only because of this, but because of other inherent defects which

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have  been  pointed  out by the learned Judge  of  the  High Court.  The witness does not say that he became an  election agent  of  respondent 2 Tirpude only towards the end  as  it sought  to  be  contended.  He merely says  that  he  was  a polling  agent of Tirpude respondent No. 2 in that  election in Tilak Ward at Bhandara which admission was elicited  from him  in cross-examination.  There was also no  reexamination to  suggest that at the time when he printed  the  offending pamphlets  he was not an election agent of Tirpude.  It  is, however, contended that the evidence of this witness that he filed  Exts. 42 and 43 in the election office within 2 or  3 days  from  his  being informed by Mr.  Khan  that  election pamphlets should be filed, is corroborated by the fact  that they were said to have been seen in the election office  two or three days before the polling day. The  learned Advocate for the first respondent  states  that even this submission does not help the appellant’s case.  If the  evidence of Bhole P.W. 40 is read with the evidence  of this  witness,  it  would appear  that  the  pamphlets  were delivered  to Bhole and Sheoshankar Ninawe on  February  16, 1972, eight or fifteen days after this date he came to  know that  the  copies of the pamphlets have to be filed  in  the election  office, and two or three days thereafter he  filed them.  On this reckoning, it is contended that the pamphlets were filed in the election office about March 5, 1972, which was the date when the poll was held.  If so, the possibility of  these pamphlets being printed and filed in the  election office after the date of the poll becomes probable. In support of this contention, it is pointed out that  these two  pamphlets  did not find a place in the  first  list  of documents comprising items 1 to 41 filed by 1 R.W. 12 in the fourth week of March 1972.  These pamphlets were only  shown in the supplementary list of documents prepared in September 1972  by T. Zanjal (1 R.W. 13).  According to  this  witness the  pamphlets  were seen by him in May  1972.   Though  the Collector  and  District Magistrate, Bhandara,  Mr.  Narayan Wasudeo  Patankar  P.W.  38  says  that  he  saw  these  two pamphlets sometime 455 before  the polling when they were brought to his notice  by the District Deputy Election Officer, on going through  them he did not find that they, raised any law and order problem. It  is stated that this evidence has not been challenged  in cross-examination.   On  the other hand, the  contention  is that  this officer merely spoke from memory and  could  have been mistaken as to the exact time when the offending pamph- lets  were  brought to his notice.  In  his  examination-in- chief it has been stated by him that as far as he remembered the two pamphlets-were appeals to particular communities  in the  matter  of voting.  It is true that after  a  lapse  of time,  it is difficult to rely upon one’s memory’ and it  is not  possible to be certain when exactly an  event  occurred and  what exactly took place at the time.  After a lapse  of time one may honestly think that a certain event took  place at  a  certain  time,  but  that  may  not  be  correct  and particularly when there is no aid to assist him he can never be  certain  that  it  is  so.   Even  so  from  the  cross- examination  of  P.W. 38 it is evident that he  was  unaware whether  any  circulars  were issued  to  all  the  Printing Presses  in the District to send the printed material  along with  a  declaration  to  the  District  Election   officer. According  to him, it was for the District  Deputy  Election officer  to have done the needful.  He said that he did  not know  if  he  had done so.  He could not  say  who  used  to receive   the  pamphlets  or  other  printed   material   in

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connection  with the elections as also the  declarations  in the   election   office.   In   these   circumstances,   the possibility of his recollecting the precise time when he saw those  pamphlets is liable to error.. One thing  is  certain from  the evidence of Ramtake P.W. 18 that Exts. 42  and  43 were  put up before him by his clerk Zanjal 1 R.W.  13.   He however,  says that this was done 4 or 5 days prior  to  the election.  He, brought these pamphlets to the notice of  the Collector  and District Magistrate about two or  three  days prior  to  the  date  of election  stating  that  these  two pamphlets were of a communal nature.  There was no  writing, but  they were brought to his notice in his  personal  talk. In.  his examination-in-chief and even in  cross-examination he  admitted  that any printer of a pamphlet  concerning  an election  matter  must  send the pamphlet  to  the  Election Officer  accompanied by a declaration of the publisher.   He also  said that the pamphlets and the declarations  received in  his  office  were noted in the  inward  Register  and-he followed  the  practice of making an  endorsement  on  every paper that he received’ as an Election Officer.  He  further stated that on the declaration that was received in  respect of  a  pamphlet, an endorsement about the receipt  was  made when it was received and the Inward Register Number in which it  was  noted  was also shown  on  that  declaration.   He, however,.  admitted that the pamphlet which was received  as per  that declaration, did not bear any endorsement  or  the inward  register  number.   He,  however,  contradicted  his statement  when he said that they receive any paper  brought to them by any body regarding an election matter.  They also accepted   a  pamphlet  brought  to  them  even  without   a declaration   of  the  printer  or  publisher,  but-   again reiteratedthat every paper they received in  connection with the election matterto   be  entered’  in  the   Inward Register.Contrary  to this categorical statements Exts.  42 and 43 neither bear aninward register number nor are they accompanied  by  any declaration of the  publisher,  nor  is there an endorsement by any of the officers in the  Election Office, nor did Ramteke P.W.18 456 as  Deputy District Election Officer enquire from  Zanjal  1 R.W.  13  as  to  why no endorsements  were  made  on  those pamphlets  in  order to show on which date  those  pamphlets were received, even though he had noticed, when he saw those pamphlets,  that there was no endorsement on them.  He  also did  not ask him to make any endorsement regarding the  date on which those pamphlets were received nor did he direct him to  make an endorsement on those pamphlets on the date  when they were shown to him.  He is unable to give reasons why no endorsement  was  made by either himself about the  date  on which  they  were  shown to him nor did  he  make  any  note regarding the date on which he had shown those pamphlets  to the  Collector & District Magistrate.  The  witness  Ramteke frankly  admitted that he will not be able to tell on  which date  the pamphlets or the declarations were  placed  before him,  nor will he be able to tell on which dates any  poster or  pamphlet, or declaration or a letter was  placed  before him,  either  before  the election or  after  the  election. Having  regard  to this frank :admission of Ramteke,  it  is difficult  to hold that these pamphlets were  placed  before him  before the date of election.  The significant facts  to be  noticed are that contrary to the  established  procedure these pamphlets have no inward register number, nor is there any  endorsement  thereon.   In any  case,  one  would  have expected  these witnesses to have placed their  initials  on those  pamphlets when they were shown to them even  if  they

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had  not  done so before.  If the District  Deputy  Election Officer  himself  could not do it, he  could  have  directed Zanjal 1 R.W. 13 to do so. The  version of Zanjal R.W. 13 on the other hand shows  that papers  concerning  election  matters, if  received  in  the Collector’s  i.e.  District Election Officer’s  office,  are sent  to  the  Election Branch by the  Head  of  the  Branch (General) and received by the Receipt Clerk of the  election office.   He then puts up the papers to N.T. (Election)  who in  turn  puts  the  papers  before  the  District  Election Officer.  If the papers are directly brought to the Election Branch Office then they are received by the Deputy  District Election Officer and in his absence by the N.T.  (Election). No clerk is authorised to receive the papers concerning  the elections.   He  also said that all the  election  material, i.e.   pamphlets,  posters,  declarations  etc.  which   are received  in  the election office are entered in  an  Inward Register  as and when they are received.  These entries  are taken  by the Receipt Clerk.  According to him the  original list  of the papers was prepared by Kadhav, N.T.  (Election) in  the  first  or  second  week  of  April  1972  when   an application  for certified copies of the posters, return  of election   expenses  etc.  was  received  in   the   office. Thereupon  the Deputy District Election Officer Ramteke  had asked Kadhav N.T. to prepare a list of the papers which were in his custody and accordingly a list was prepared which  he handed over to Ramteke’ A supplementary list of three papers which were marked as S. Nos. 13-A, 42 arid 43 in the file of the  District Election Officer was prepared by  the  witness (Zanjal)  sometime in the beginning of November 1972  before Diwali,  as  an  application  for  certified  copy  of  some documents had been received.  At the time the witness handed over the papers to Kadhav N.T. for preparing the first  list as  asked  by the Deputy District Election Officer  the  two pamphlets marked at 457 Sr.  Nos. 42 and 43 were not amongst those papers.   He  was directed by the Deputy District Election Officer Ramteke  to prepare the supplementary list in the beginning of  November 1972.   According  to  him he might  have  come  across  the pamphlets  at Ext.  Nos. 42 and 43 in the District  Election Office  file  sometime  in the month of May  1972  when  the inspection  of the record was taken by someone.   In  cross- examination  he  admitted  that he could  not  say  who  had received  the  documents Exts. 42  and  43.   Significantly, there was no cross-examination suggesting that this ’witness had  brought  to  the  notice  of  Ramteke  Deputy  District Election Officer, Exts. 42 and 43 before the date of polling as asserted by Ramteke, though according to his version. the first time he saw those pamphlets was in May 1972 which  was long after the polling. It is for the appellants to prove that these documents  were in  fact  filed in the election office before  the  date  of polling  and  the surest way they could have done so  is  to have  called for the Inward Register, which is  admitted  to have  been  maintained,  in  which  according  to  all   the witnesses  P.W.  38, P.W. 18 and 1 R.W.  13  every  document received in the office is entered and numbered.  The onus is certainly  not  on the first respondent when he  had  denied that these documents were ever in existence before the  date of election or were filed in the election office.  Even  the publisher  Balpande, signatories M.S. Motghara and  Sakharam Narayanji Dipate in respect of Ext. 43, and Tukaram Rakhalu, Shende  in  respect  of  Ext.  42,  were  summoned  by   the petitioners but. were not examined.  Balpande is said to  be

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a  witness  in the complaint (Ext. 93) filed  by  the  first petitioner  Karemore  against  the  printer  and  editor  of Bhandara  Times  in respect of the  publication  of  Dhote’s speech.   All  the above persons who were not  examined  are Congressmen  or  Congress  workers  (see  the  evidence   of Karemore  P.W.  29, Dayaram Banthe 1 R.W. 2 and  Gaidhane  1 R.W.  14).   The  alleged signatory of Ext. 43  was  also  a signatory of Ext. 119 supporting a Congress candidate Vithal Prasad Dube in 1972 election (see Dayaram Banthe 1 R.W.  2). The omission to produce any of the above witnesses to  prove Exts. 42 and 43 is significant particularly when they belong to  the  party., of respondent No. 2 who benefits  from  the election being set aside. Evidence  has also been adduced to show that  the  offending pamphlets  were distributed at Warthi on February  17,  1972 (See Narayan Fuley P.W. 14, Prandas Wasnik P.W. 19 and Lambe P.W. 23); at Bhandra on February 22, 1972 (See Narayan Yelne P.W.  29  and Tizare P.W. 30); at Bhandara on  February  23, 1972  (see Ramteke P.W. 34 and Kesho Hedau P.W. 37); and  at Mohadi  on  February 18, 1972 (see Patre P.W. 13  and  Lalit Mishra  P.W. 25).  The learned Trial Judge  has  disbelieved these  witnesses and has given reasons therefore.   But  the learned  Advocate  for  the appellants  has  assailed  those reasons  and  has  submitted  his  detailed  comments.    In considering the evidence of these witnesses, particularly in an election matter, the interest which these witnesses  have in  and the support they give to, any  particular  political party  are relevant factors to be taken  into  consideration for  determining  their bias for speaking in favour  of  one party  or  against the other.  Apart from  this,  there  are other factors such as their 458 knowledge  of  the contents of the pamphlets,  whether  they preserved those pamphlets, what action they took, whom  they had  informed  if they had considered such pamphlets  to  be offensive,  and whether they are chance witnesses or had  an opportunity  of knowing about the incident about which  they are  deposing.   There may also be some  witnesses  who  may claim to have supported the successful candidate, but  after the election have changed their loyalty and have appeared as witnesses for the petitioners.  This is also a  circumstance to  be taken into consideration.  We have gone through  each of  the reasons given by the learned Judge and the  comments submitted by the learned Advocate for the appellants for not accepting  those  reasons, but we find ourselves  unable  to reject  the  appreciation  of  the  learned  Judge  for  not accepting  the evidence of these witnesses.  We  would  have examined the reasons in the light of the comments  submitted by  the learned Advocate in detail, but we have not done  so because  of our anxiety to keep the length of this  judgment within appreciable limits.  If we may take one ground  which uniformly  has been admitted by most of these witnesses,  it is  that  they have neither preserved the pamphlets  nor  do they  even  remember the contents of those  pamphlets.  (see Fuley P.W. 14, Yetne P.W. 29, Tizare P.W. 30-to name a few.) Even Ramteke P.W. 34 District Deputy Election Officer is not able to remember the caption of any of the pamphlets  though as  we have seen earlier he claimed to remember  that  those pamphlets  were seen by him before the date of the  polling. Keshao  Hedau P.W. 37 is a member of the Congress Party  who worked  for respondent No. 2. P.W. 13 likewise is a  staunch Congress  worker.  P.W. 25 does not say that he himself  re- ceived  or had occasion to see the pamphlets which are  said to   have   been   distributed.   Though   each   of   these circumstances  may be insufficient to throw doubt  on  their

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veracity, but junctz juvant. On  a  perusal  of  the  evidence  as  a  whole  and  having considered  the meticulous contentions advanced by both  the parties, we cannot say that the finding of the learned Trial Judge that Exts. 42 and 43 were not printed, or published or distributed  before the date of polling, is  not  warranted. We   think,  on  the  evidence,  this  finding  is   clearly sustainable.   The second head relates to corrupt practice  under  sub-s. (6)  of  s.  123 of the Act  for  incurring  or  authorizing expenditure in contravention of s.77. This section forbids a candidate  at  an election to expand more  than  the  amount prescribed  which  under  r. 90 of  the  Rules  relating  to Assembly  Constituencies in the State of Maharashtra is  Rs. 12,000/-.  The first respondent has returned on  expenditure of Rs. 7,749-11 out of which Rs. 6,371-61 have been paid and Rs.  1,377-50 are shown as outstanding.  It is also  alleged that  the first respondent has committed a breach of  s.  77 read  with r. 86 of the Rules framed under the Act  for  not showing  certain  items of expenditure in the  return  filed with  the District Election Officer as required by s. 78  of the  Act.  The learned Trial Judge was of the view  that  it has  not been shown how there was non-compliance with s’  77 read with r. 86 and also that no arguments were advanced  on that  point.   Section 77 of, the Act requires  that  ,every candidate at an election shall, either by himself or by  his election 459 agent,   keep  a  separate  and  correct  account   of   all expenditure  in  connection with the  election  incurred  or authorized by him or by his election agent between the  date of publication of the notification calling the election  and the  date of declaration of the result thereof,  both  dates inclusive.  It also provides under sub-ss. (2) and (3)  that the  account  shall  contain such  particulars,  as  may  be prescribed, and that the total of the said expenditure shall not exceed such amount as may be prescribed.  Rule 86 of the Rules prescribes that the account of election expenses to be kept by a candidate or his election agent under s. 77  shall contain the particulars specified therein and that  vouchers shall  be obtained for every item of expenditure and  lodged along with the account of election expenses. The   contention  of  the  appellants  is  that  the   first respondent  though  he  has admitted that  he  had  kept  an account  in the Note-book from which he prepared the  return of  election expenses, did not file that Note-Book, nor  has he  shown that he had maintained the accounts in  accordance with the law.  It is submitted that under s. 78 of the  Act, the  first respondent should have lodged with  the  District Election  Officer an account of his election expenses  which shall  be a true copy of the account kept by him or  by  his election  agent under s. 77, and since the first  respondent has not shown that the account filed by him was a true  copy of  the account kept by him he has committed default of  the provisions  of ss. 77 and 78 of the Act’ Even assuming  that this  point had been argued, we do not think that  there  is any  substance  in  the  contention  urged  by  the  learned Advocate  for  the appellants that the return filed  by  the first respondent was not a true copy of the account kept  by him.   The  obligation is to keep separate accounts  and  to file  a true copy of that account along with  the  vouchers, but  there  is no requirement for him to  file  the  account book,  unless  the  authenticity of the true  copy  of  that account is challenged. There is validity in the submission of the learned  Advocate

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for  the  first respondent that no notice was given  by  the appellants  to  produce  the  account  book,  nor  has   the authenticity  or  veracity of the true copy of  the  account filed  by the first respondent been challenged in  any  way. Every item of expenditure that has been shown in the  return has  been  supported by the original voucher which  was  not challenged.  Nor has anything been brought to our notice  to show  that there is any averment in the pleadings  that  the accounts  filed  were  not  a  true  copy  of  the  accounts maintained.  In our view, the requirements or ss. 77 and  78 have been complied with. The next ground of challenge is that the amount shown in the return  is not a correct amount and that there  are  amounts which  had  been incurred in respect of several  items  that have  not  been shown in the return.  There is  not  dispute that  the items of expenditure shown in the election  return amounting  to Rs. 7,749.11 are not correct.  What is  sought to be, proved is that the expenditure in respect of  several other  items other than those shown in the return has to  be added.  :It may be mentioned that a successful candidate  at an election is entitled to 460 deduct  Rs.  250/-  deposited so that  actually  the  amount returned  has to be reduced by that amount, which will  come to Rs. 7,499.11. The  learned Trial Judge has added a sum of Rs. 2,992.95  in respect of two items of expenditure incurred towards  petrol as  evidenced by Exts. 86 and 87.  The amount of Rs.  952.85 is  in  respect  of  chits issued by  Saxena  on  behalf  of Congress-O  and the amount of Rs. 1,984.30 is in respect  of chits  issued on behalf of Bharatiya Jana Sangh.  These  two amounts  total upto Rs. 2,947.15 and though the  High  Court has  added  Rs. 2,992.95 the former figure seems to  be  the more accurate one.  According to the petrol dealer Gurjar  1 P.W.  21  the  accounts  of Bharatiya  Jana  Sangh  and  the Congress-O were separate as is evidenced from Ext. 87-D-Cash and  Khata  entries pertaining to Bharatiya Jana  Sangh  and Congress-O.  This witness categorically denies that there is any  account  with  him in the  name  of  Govindrao  Shende, sheoshankar  Ninawe,  Kharbe,  Bhasker  Ninawe,  Saxena   or Bhasker Hardinkar.  He also says that Bhau Dalal had come to him to open an account in his name telling him that for  all the  purchases made in his account, he or  Govindrao  Shende would  be  liable.  He said Saxena had also come to  him  to open  an  account for Sanghathan Congress  (Congress-O)  and stated  that be would be responsible for the purchases  made in  the account of the Sanghathan Congress and that  Bhaskar Ninawe  had come to open an account for the  Bharatiya  Jana Sangh  and stated that he would be liable for the  purchases made  in the account of the Bharatiya Jana Sangh.   P.W.  21 also says that he submitted the bills to Saxena and  Bhasker Ninawe  separately and received the amounts from  them.   In any  case  the  learned Judge was  wrong  in  including  the expenditure of Rs. 145/- on petrol between March 11 to March 14, 1972, which is after the date of polling.  Ninawe 1 R.W. 7 admits that he is the President of the Bharatiya  District Jana  Sangh Party and that 39 requisition slips  which  were collectively  marked as Ext. 86 were admitted to  have  been signed  by him.  He says that these requisition  slips  were given  to the Gurjar Petrol Pump at the time the petrol  was put in the cars, that he paid Rs. 1,000/- to Gurjar for  the petrol supplied to him under these requisitions; that  about Rs.  800/or  Rs.900/-  out of the total  bill  had  remained unpaid;  that the amount of Rs.1,000/-had been paid  by  the Jana  Sangh  Party; and that the liability  for  the  amount

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remaining due was also of the JanaSangh Party. We have ourselves seen the chits in Exts. 86 and 87 and have no manner of doubt that those chits were given on behalf  of the Bharatiya Jana Sangh and Congress-0 Parties, whose names also have been written on those chits by the persons signing them  at the Petrol Pump.  In these circumstances, there  is no justification for adding Rs.2,992.95 to the amount of Rs. 7,499.11  as  found  by the High Court.   In  view  of  this evidence,  the  learned Advocate for  the  first  respondent challenges the finding of the High Court that the amount  of Rs. 2,992-95 was incurred on his behalf and should not  have been added to his return of election expenses.  In our view, the  first respondent is entitled to challenge this  finding of  the  High Court for supporting the  conclusion  that  no corrupt practice has been committed in respect of this head. 461 in respect of the expenditure incurred for illuminating  the truck  and  hiring  the  tractor  which  took  part  in  the processions at Bhandara on March 2, 1972 and March 3,  1972, the Court after elaborately considering the evidence of P.W. 6,  P.W. 34, P.W. 37, P.W. 39 and P. W. 40 disbelieved  it.’ It  was a case of appreciation of conflicting oral  evidence of  petitioners  and respondent 1 and we are unable  to  say that  the  conclusion  arrived at by  the  Trial  Court  was unjustified. Apart from this, there is also an item of expenditure of Rs. 450/incurred  for  hiring  of cycles.  In  support  of  this expenditure  the  evidence of Fakhruddin Patel  P.W.  2  was adduced.  We, however, agree with the Trial Judge that  this evidence is not reliable.  The reasons given by the  learned Trial Judge for disbelieving this witness are that there  is a  difference in the ink in entry on Ext. 36A, there  is  no receipt book and that P.W. 2 did not maintain a copy of  the receipt.   It was also not understood why Ninawe’s name  was mentioned in the entry Ext. 36A.  That P.W. 2 had only eight cycles and that no signature was taken on the register.  Nor does  the entry mention the amount of hire  money  received, and  that the last entry made on February 14, 1972 was  also suspicious.  We have seen this Ext. 36A which does not stand scrutiny and accordingly this amount is rejected. In respect of Kirti Hotel a sum of Rs. 1,959/- is alleged to have  been spent by Kanchanlal Saxena P.W.27 on  account  of food  taken  by the workers of the  first  respondent.   The proprietor  of the Hotel Inamur Rahman is a friend  of  P.W. 27.   The  account book produced by him was examined  by  us from  which  it is clear that it has not been  kept  in  the regular  course of business.  There are many pages on  which entries have been made at places where they could have  been made subsequently.  The carbon copy of the receipt Ext.  51A shows  that the amount was paid in a lump sum,  whereas  the pleadings  as well as the Register show that the amount  was paid  at  different  times.  This  witness’s  brother  Abdur Rahman  is  a teacher in Nav Prabhat High  School  of  which Tirpude  respondent No. 2 is a member of the Governing  Body of the School and an active worker of the Congress.  P.W. 27 neither  knows how many chits were issued, not does he  know who  first  respondent’s workers were.   The  learned  Trial Judge has given weighty reasons for rejecting this  evidence and we do not think we would be justified in reversing  this finding. With  respect to the amounts paid to Laxmi Litho  Works  for printing   posters  and  badges,  the  case  of  the   first respondent  is that he paid a consolidated sum of Rs.  730/- and  another  bill  for Rs. 35/- to Sakhare  P.W.  12.   The petitioners,  however, contend that a further amount of  Rs.

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710/-  under orders Nos. 61A and 61B was paid by  Shende  to Laxmi  Litho  Works which amount has not been shown  in  the return of election expenses.  Shende, however, disputes that the  above  orders Exts. 61A and 61B were placed by  him  or that he had paid Rs. 710/in addition to the payment admitted by him under the cash memo, receipt dated February 23, 1972. The contention of the first respondent is that Exts. 61A and 61B  are fabricated documents.  Ramesh Sakhare P.W.  12  the proprietor of the Laxmi Litho Works admits that he maintains a cash book which he had not brought in spite of M602Sup.CI/74 462 being  called upon go bring the same, nor is the  Cash  book up-to-date.   The witness also admits that he did  not  file the annual sales tax return for the period April 1, 1971  to March 31, 1972.  The order book Ext. 61A shown that pp.  117 and  118  are completely blank.  The witness  also  admitted that  in Ext. 61A there are alterations at some  places  and the figure of Rs. 390/- is over-written as also the date  of placing  the  order.  This order shows that Rs.  375/-  were received-  in cash which figure is changed to Rs.  390/-  by ball-pen  while the other entries are in ink.  We have  seen the  order  book  Ext. 61A which contains  the  above  over- writings  and the blank order forms in the middle so  as  to raise  an  inference that those could be filled  in  at  any time.    The  High  Court  has  held  that  Ext.  62  is   a consolidated receipt for all the orders and total payment of Rs.  755/-  had  been  made by Shende,  and  that  has  been included in the return of election expenses.  We do not  see any reason to disagree with that finding. Certain  other  petrol expenses which were alleged  to  have been  incurred by the first respondent are said not to  have been included in the return.  These are in respect of petrol purchased  from  Kulwal  &  Sons of which  P.W.  32  is  the Manager.   The High Court has not accepted the  evidence  of P.W.  32  nor  the accounts of this  witness.   The  witness admitted  that whenever there was a credit  sale,  signature was taken on the credit memo, but no such signature had been taken in respect of petrol alleged to have been supplied  to Shende.   It  is also not explained why the  credit  entries were shown in ’Unchant Khata’ (Suspense Account).  According to  the  first respondent, there is another Shende  by  name Govind  Shende in Tumsar who is a Congress worker and it  is possible that petrol might have been supplied to that Govind Shende  of  Tumsar.  Taking advantage of this, in  order  to support  the  petitioners, the petrol taken by  him  is  now being shown against the first respondent whose name also  is Govind Shendi. (See evidence of Chandrakumar Khandelwal P.W. 32).  It is also apparent that this Govind Shende of  Tumsar was canvassing for the Congress candidate at Tumsar.  Taking advantage  of  the similarity of the names, it  is  possible that  the amount incurred by him is sought to be foisted  on the  first  respondent.   In our view, the  High  Court  has rightly rejected that evidence. A sum of Rs. 600/- was incurred by Kharabe father-in-law  of the  first  respondent for hiring of Taxi No.  MHG-191.   In respect  of this Taxi payments were made to  Laxman  Peshene P.W. 7 by Waghaye who is the maternal uncle of Shende.   The High  Court excluded this amount, because it is  not  proved that  it was incurred with the consent or  authorization  of the  first respondent.  The learned Advocate, for the  first respondent  contends that Kharabe and Waghaye who  are  near relations   of  the  first  respondent  have  incurred   the expenditure  on their own to support the candidature of  the first  respondent.   But  that  is  not  to  say  that   the

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expenditure  is an election expenditure incurred by  Shende. The  evidence,  however, as pointed out by the  learned  Ad- vocate  for  the appellants, shows that the  Taxi  had  been hired  for bringing the workers of the first  respondent  to the election office of the first respondent and that Waghaye had paid the hire charges.  In these 463 circumstances,  we think that the amount paid by Waghaye  is an   expenditure   incurred  for  election  of   the   first respondent,  as this was paid at his election  office  which was  the venue for carrying the workers to and fro  in  that Taxi. The  further contention of the appellants is that it is  not denied that Shende had given Rs. 3,000/- to Bhau Dalal,  but Dalal had only submitted account for Rs. 801/- as is said to have been admitted by him.  Accordingly, we are asked to add at  least  a sum of Rs. 2,000/to this  account.   The  first respondent contends that Dalal had paid through  Sheoshankar Ninawe,  P.W. 10, certain sums which amounted in all to  Rs. 1040/-.   Apart from the details of expenditure  which  were given  for  hiring  loud-speakers amounting in  all  to  Rs. 1,040/-, he paid to Gurjar Brothers for petrol to  Parsodkar for  stencils,  to Lalit Mishra and Rao  for  publicity,  to Murari Dongre for bamboo on different dates amounting in all to  Rs.  1,930/50.  It is, therefore, submitted  that  these items which add to Rs. 2,979.50 were paid out of Rs. 3,000/- given  by Shende to Dalal. The Advocate for the  appellants, however,  submits that there is no evidence to show  whether it is Shende who paid these amounts or it was Dalal who paid them from out of Rs. 3,000/given by Shende.  It appears that out of Rs. 3,000/- which were admitted to have been received by  Dalal  from  Shende, Dalal paid  Rs.  977.50  to  Gurjar Brothers, Bhandara on April 10, 1972 and a sum of Rs.  84/on February  19, 1972 for bamboo to Murari Dongre.   These  two items  which  have been shown in the returns amount  to  Rs. 1,061.50  so  that a sum of Rs. 1,938.50 not  accounted  for will  have to be added to the election expenses.   According to  the first respondent, the appellants’ argument that  the amount is not accounted for is built on answers of Dalal  to stray  questions asked in the cross-examination.  We do  not think  there  is  any  validity  in  this  criticism.    The appellants  are entitled to rely on statements  made  during cross-examination  as  much  as  the  first  respondent   is entitled  to rely on answers given in  examination-in-chief. It  appears  to us that the amount of Rs.  1,938.50  is  not satisfactorily  explained nor can we assume as  the  learned Advocate  for the first respondent wants us to  assume  that the unaccounted amount was due to be refunded to Shende.  In our view, in the absence of a satisfactory explanation,  Rs. 1,938.50  have  to be taken as election expenses  and  must, therefore, be added. There is again a sum of Rs. 100/- which was paid towards the salary  of  Hari,  the  driver  of  the  first  respondent’s jeep .It is submitted that Hari was the permanent driver  of Shende.  The first respondent admitted in his evidence  that he  does not drive a car and had kept a driver for his  jeep car. one Hari was kept as driver for the jeep car, that Hari was  driving  the jeep during election and he was  paid  Rs. 100/p.m.  It  was suggested to him that  there  was  another driver  Sadasheo Bhure of Kaharad, but the witness  said  he was never his driver.  He was asked that between February 2, 1972  and March 2, 1972 he had another driver for  his  jeep car  besides Hari.  From this it is sought to  be  contended that  Hari was only engaged for election work and  that  Rs. 100/- paid as salary should be included in the election  ex-

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penses.  The first respondent, however, says that  admission does 464 not  amount to the driver Hari being appointed only for  the election.   When the witness said he had a permanent  driver and  that Hari was driving the jeep car during election  and was  paid  Rs.  100/-  p.m., it would mean  that  he  was  a permanent driver and also drove the car during the election. There may be some justification for this contention  because the  statement that Hari was paid Rs. 100/- p.m. might  mean that  he was a permanent driver.  At the same time it  could also mean that he was paid for one month during the election at  Rs. 100/-p.m. Be that as it may, even if this amount  is included,  we do not think it would make much difference  as we shall presently show. The  next item is Rs. 600/- incurred towards taxi hired  for six days.  The issue pertaining to this item is 5(a),(b) and (c).  Though the finding of the High Court is that taxi  was used for the election work of the first respondent, but  the sum of Rs. 600/- for six days was incurred by Waghaye  which was  paid  by  him  at the  election  office  of  the  first respondent and hence it is contended that it was incurred by him  as an election expense.  The Court, however, held  that though  this  amount  was paid, the  consent  of  the  first respondent  to  this  payment was not  established.   It  is contended  that  since the amount was paid in  the  election office, this amount also would appear to have been paid  for election  on  behalf of the first respondent.  The  fact  of payment  at the election office of the taxi being  used  for carrying the workers of the first respondent is  tenaciously contested.  Then again it is said that the first  respondent admitted  that  he  went  to Nagpur  from  Bhandara  on  two occasions  in his jeep on February 4 & 5 and February  10  & 11,  1972 for which according to him he purchased 50  liters of petrol.  He has, however, only shown the amount  incurred for  20  liters  of  petrol  in  his  expenses.   The  first respondent  also admits that he does not remember  how  much petrol he put into the jeep apart from the 50 liters.  There is no doubt that the jeep was used for election work between February 1, to 8, 1972 in respect of which he has not  shown any expenses in the return.  As we have seen, he only showed 20  liters on February 10, 1972 but did not show any  petrol expenses  between 11th and 12th.  He does not  remember  the quantity of the petrol put in the car between 12th and  15th February.   He no doubt says that he did not use the car  on the  1st  and  the 8th February in Bhandara  town  but  that admission will not help him because he could use it outside. in  the  circumstances, it is open for the Court to  make  a fair  estimate of the expenses which he could have  incurred and if we consider 10 liters per day for 15 days, the excess amount  after  deducting  the amount of  20  liters  already included  will come to 130 liters which at the rate  of  Rs. 1.48 Per liter would come to Rs. 192.40. The Court, however, added  only 30 liters from which 20 liters was deducted  and the  balance  of  Rs. 44.40 was  included  in  the  election expenses.   We, however, propose to add Rs. 192.40  on  this account. There  are  two other items-one of Rs. 695/- in  respect  of Sakhare  and  the  other  of Rs. 129/-  said  to  have  been incurred  on account of Shende.  Even if the contentions  of the  learned  Advocate  in  respect  of  these  amounts  are accepted , namely, Rs. 1,939/- incurred by Bhau 465 Dalal for which no account was given, Rs. 100/- paid towards the  salary  of Hari, Rs. 695/- in respect of  Sakhare,  Rs.

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192/40  or  say  Rs. 192/in respect  of  petrol,  Rs.  600/- regarding  hire  charges of Taxi No. MHG-191  hired  by  the father-in-law  of  the  first  respondent,  and  Rs.   129/- incurred  for Shende, the several items will amount  to  Rs. 3,655/-.   If  these amounts totalling to  Rs.  3,655/-  are added  to the election expenses already shown,  which  after deducting  Rs. 250/- would come to Rs. 7,498.89 or  say  Rs. 7,499/-,  the total amount of expenditure incurred would  be Rs.  11,154/-.   Even  on  this  reckoning,  the   election, expenses  are  well  within the limit of  Rs.  12,000/-  and consequently  the  appellants’  charge  against  the   first respondent for committing corrupt practice under sub-s.  (6) of s. 123 of the Act is not established. Under  the  first head of corrupt practice as we  have  seen earlier,  the allegation is that at the public meeting  held on   February   18,  1972  at  Shaheed   Maidan,   Bhandara, Jambuwantrao   Dhote,  a  protagonist  of   Maha   Vidarbha. Sangharash Samiti which has as its object the formation of a separate- State of Vidarbha made a false statement that  the second  respondent Tirpude paid a bribe of Rs.  60,000/-  to the  first appellant Karemore to withdraw from the  contest. This  statement,  it was further alleged, was  made  in  the presence  of  the first respondent Shende who, it  is  said, also spoke in the same meeting from which his consent to the false statement made by Dhote is sought to be inferred.  The second  allegation  in  this regard is that  the  report  of Dhote’s  speech  was  published in  the  Bhandara  Times  of February  23, 1972, which publication, it was  averred,  was with  the consent of Shende inasmuch as the  Bhandare  Times was acting as his agent. The  case of the appellants is that the meeting  at  Shaheed Maidan  was  arranged  by  the  first  respondent  who   had approached  Dhote to visit his constituency  for  supporting his  candidature  and  had  got printed  a,  notice  of  the aforesaid meeting to be addressed by Dhote.  In paragraph-41 of  the  petition  the  appellants  stated  that  the  above statement was "believed to be false" by the maker as well as Shende  and nobody could have believed it to be  true.   The first  respondent of course denied that the above  statement was  ever made or that it was made in his presence  or  with his  consent.   Nor  did  he have  any  knowledge  that  any statement was published on February 23, 1972 in the Bhandara Times  with his consent or with the consent of his  election agent,  or that the Bhandara Times was making propaganda  on his  behalf or that it was acting as his agent.  In  support of   the   allegations  the  appellants   examined   Haridas Khobragade  P.W. 22, SharadChandra Lambe P.W. 23,  Viswanath Shangarpawar P.W. 24, Saxena P.W. 27, Lalit Kumar Misra P.W. 25,  Balwant  Bhole  P.W. 40, Sharad Hardikar  P.W.  28  and Baburao Karemore P.W. 29.  of these P.W.s 29, 24, 27 and  40 are Advocates, while P.W. 23 is the Headmaster P.W. 25 is  a Journalist, P.W. 28 the printer, publisher and owner of  the Bhandara  Times  and  P.W.  39  the  first  appellant.   The documentary evidence in support of these issues are Exts. 69 dated  February 16, 1972 which is the notice dated  February 16,  1972  announcing that Dhote will address a  meeting  on February  18,  1972,  at Bhandare in support  of  the  first respondent, Ext. 108 of the same date which is a 466 declaration  of Ext. 69 made under s. 127A; Ext.  157  dated February  14, 1972 is the application for permission to hold the aforesaid meeting addressed to the President,  Municipal Council,  Bhandara; Ext. 101 dated February, 23, 1972  issue of the Bhandara Times; Ext. 18 dated February 26, 1972 which is  a  part  of  the notice given  to  Dhote  by  the  first

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appellant  Karemore regarding the alleged statement said  to have  been made in the public meeting and published  in  the Bhandara    Times;  Ext.  100 dated February  26,  1972  the notice  issued  to  shared  Hardikkar  P.W.  28  the  owner, printer,  publisher  of the Bhandara Times, Ext.  103  dated March  2,1972  the reply of Sharad Hardikar P.W. 28  to  the notice  Ext. 100 admitting that what was reported as  spoken by Dhote was part of the speech of Dhote; and Ext. 143 dated February  21,  1972 is the issue of Lok Vani  reporting  the speech of Dhote. The  learned Trial Judge after noticing that  the  affidavit filed   by  the  appellants  in  support  of   the   various allegations  did  not disclose the  sources  of  information expressed the view that in the absence of such a  disclosure which  would  take  the opposite  party  by  surprise  those allegations  and the affidavit in support thereof  would  be viewed  with some suspicion.  It was also pointed  out  that even  after an objection was raised by the first  respondent that  the  petitioners  should supply  further  and.  better particulars,  they  remained  silent with  respect  to  this matter which would raise an inference amongst others that at the time of drafting the petition, the petitioners were  not informed  by  any  one who was present  at  the  meeting  of February  18, 1972 about the statement alleged to have  been made  by  Jambuwantrao Dhote in the  said  meeting-.   While there  is  no dispute that Jambuwantrao  Dhote  addressed  a meeting at Bhandara on February 18, 1972, the only  question is  whether  he  made the objectionable  statement  in  that meeting  that  Tirpude  paid Rs. 60,000/-  to  Karemore  for inducing  the  latter to withdraw his candidature  from  the election.   The learned Trial Judge, after a review  of  the evidence and after considering the various’  contradictions, improbabilities and the interestedness of the witnesses held that  they were not present at the meeting  and,  therefore, they could have no knowledge of what was spoken by Dhote  or by  Shende at the meeting, because if they had been  present at  that,  meeting they would have  certainly  informed  the petitioners  and  the  second  respondent  Tirpude  of  what happened at the meeting; if they had informed them then  the petitioners   would  have  mentioned  their  names  in   the affidavit   or   in  the  subsequent  further   and   better particulars.  was  further  held  that  even  if  the  first respondent  was present at the meeting held at  Bhandara  on February 18, 1972 and spoke at the meeting as alleged, there is nothing to show what part of the speech was consented  to by the first respondent.  There is also no evidence that the statement  in  the  Bhandara Times was  published  with  the consent  of the first respondent or that the Bhandara  Times was  the  agent of the first respondent.  The  Trial  Court, therefore,  held that the allegations under, this head  were not established. Lengthy arguments were addressed before us to show that  the appreciation  of  the evidence as well  as  the  conclusions arrived  at  by the learned Trial  Judge  were  unwarranted. There is, according to 467 the learned Advocate for the appellants, sufficient evidence to hold that these allegations were proved. Before  we refer to the comments and  criticism  challenging the  findings of the High Court, it is necessary to set  out the  approach  which  this  Court  will  have  to  adopt  in examining the evidence in the case.  While, as we have  said earlier, it is open to this Court to reappraise the evidence and  consider the propriety, correctness or legality of  the findings recorded by the Trial Court, ordinarily it will  be

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slow  to disturb the findings of fact recorded by  the  High Court,  unless  there  are  cogent reasons  to  do  so.   In examining  the  question whether the allegations  about  the commission of corrupt practices by a returned candidate, the Court  has to keep in view that the allegations  of  corrupt practices are of a quasi-criminal nature, the proof  whereof has  a  double  consequence of not only  setting  aside  the election  of  the  returned  candidate,  but  also  imposing subsequent  disqualification debarring him from  becoming  a candidate  at  any  election  for a  period  of  six  years. Inasmuch  as the charge is a serious one and is of a  quasi- criminal   nature,  the  onus  of  proving   the   essential ingredients  prescribed  by  sub-s.(4) of s.123  is  on  the person  who alleges them.  He has to show that the  impugned statement  has  been  published  by  the  candidate  or  his election  agent  or by any person with the  consent  of  the candidate  or  his election agent.  He has further  to  show that the impugned statement is a statement of fact which  is false;  that  the maker of the statement whether he  is  the candidate  or his election agent or any other person  either believed  that  the  said statement was  false  or  did  not believe it to be true, and that the statement is in relation to  the  personal character and conduct of  the  complainant candidate or his candidature which statement was  reasonably calculated  to  prejudice the prospects of  the  candidate’s election. There  is no doubt that the alleged statement, if proved  to have  been made, is an imputation against the  character  or conduct  of the petitioner Karemore and Tirpude.  What  has, therefore, to be established by the appellants, is (i)  that the  statement was made at the meeting held at  Bhandara  on February  18,  1972  by Jambuwantrao Dhote;  (ii)  that  the statement was false; and (iii) that Shende consented to  the making  of that false statement.  If all  these  ingredients are established, it has further to be proved that Dhote  and Shende while consenting to it, believed the statement to  be false or did not believe it to be true.  We will now examine the  evidence keeping in view the approach which this  Court adopts  in such matters, particularly having regard  to  the fact  that where the electorate has chosen  their  candidate at/an election, their choice ought not to be lightly  upset, unless there are very cogent and compelling reasons. There is no doubt that a meeting was held in the evening  of February  18, 1972, at about 8-30 P.M. at Shaheed Maidan  in Bhandara, at which Jambuwantrao Dhote spoke.  It is also not disputed that the Maha Vidarbha Sangharsh Samiti had decided to  give  its  support to the first  respondent.   What  is, however,  denied  is  that  the  first  respondent  did  not advertise for this meeting, but only agreed to share the 468 expenses of the meeting, and that he was not present at that meeting when Jambuwantrao Dhote addressed it.  In support of the  contention  that the first respondent  advertised  this meeting, notice Ext. 69 dated February 16, 1972 was produced and  it  was  sought  to  be  established  that  the,  first respondent for the printing of that notice.  We think,  this contention is well-founded  because the first respondent  in his evidence has admitted that he got printed some handbills with the caption "HAMRA NIVEDAN", some posters and slips for being  given to the voters and some pamphlets regarding  the meeting  to be addressed by Jambuwantrao Dhote  at  Bhandara and Bhandra on February 18, 1972.  He further admitted  that he paid the amount of this printing which has been shown  in the return.  In his cross-examination, however, he said that he had not asked Bhau Dalal to print the pamphlets about the

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public  meeting addressed by Jambuwantrao Dhote at  Bhandara and  Mohadi,  even  though  he  admitted  having  seen   the pamphlets  like  Ext. 69.  He also denied that he  had  told either Bhau Dalal or any, one else for taking permission for the  holding  of the meeting of Jambuwantrao  Dhote  at  the Shaheed  Maidan.   He said "Had I  known  that  Jambuwantrao Dhote  was  to  come to Bhandara to  address  a  meeting  on February  18, 1972, 1 would have made efforts to attend  the said  meeting".  It is a futile attempt on the part  of  the first respondent to deny that he had no notice of the public meeting  or getting Ext. 69 printed or distributed.  When  a person says that he paid for it in examination-in-chief  was bare denial ill cross-examination of that fact cannot reduce the efficacy of his previous categorical statement.  At  any rate, he admits having the knowledge that a notice like Ext. 69  was distributed and once this is admitted, there  is  no point  in  his denying later that he did not  know  of  that meeting.  If it was his case that he saw the notice Ext.  69 after  the meeting, he should have stated when he  had  seen it. There  is  also an application Ext. 157 dated  February  14, 1972,  submitted  by Shivshankar Ninawe  to  the  President, Municipal  Council,Bhandara,  for providing  Shaheed  Maidan Ground and granting permission for electric connection  etc. for the election meeting to be held on February 18, 1972  at 6-00  P.M. at Bhandara.  On that application an  undertaking was   taken  from  him  on  February  16,  1912   that   the responsibility  of any possible accident arising out of  the electric current would be his.  This witness was working for Shende   and   admits  that  this  was  done  as   per   his instructions.   He  also admits that he is the  printer  and publisher of the pamphlet Ext. 69.  The cross-examination he says that he got the pamphlet Ext. 69 printed, and had shown it  to Bhau Dalal on February 17, 1972 on which date  itself Bhau Dalal had prepared the draft.  The witness says that he had  not  met Dada Shende on February 15 and 16,  1972.   He also  says  that Bhau Dalal did not tell him  to  apply  for permission  to hold the meeting on February 18, 1972 but  he himself had applied for the permission. We  have no hesitation on this evidence to hold that  Shende knew  or must have known of the meeting to be  addressed  by Jambuwantrao  Dhote on February 18, 1972 at  Bhandara.   The probabilities are also in favour of this conclusion, because it cannot be imagined that when 469 a person like Jambuwantrao Dhote who was coming all the  way to  Bhandara  to support the candidature of  Shende  at  the meeting to be addressed by him-, Shende would not know about it  or  that  if he knew about it he  would  not  have  been present at the meeting.  The omission to mention his name in the  report of the meeting either in the Lok Vani or in  the Bhandara  Times,  or  his having made  any  speech  at  that meeting  is, however, sought to be pressed into  service  in support  of his denial that he was present.  It may be  that he  was present but did not make any speech, or even  if  he did  make a speech it was a speech which had no  consequence for  a report of it to be published in the Press’.   In  any case, on the evidence, it is reasonable to infer that Shende must have been present. The  evidence  of P.W. 22 who is said to be  an  independent witness  and an antagonist of Tirpude is relied upon by  the appellants as establishing not only that Jambuwantrao  Dhote made the impugned speech, but that Shende was present on the dais  and  spoke after Dhote had finished  his  speech.   It appears to us that in election matters, where the  witnesses

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who  admittedly  belong to the one or  the  other  political party  and are enthusiastic workers for  canvassing  support for  their  respective parties or candidates,  will  not  be expected  to  appear and give evidence against  the  persons whom they supported, unless it be with some motive.  It  is, however, difficult to fathom the motives that impel them  to change  their front.  Be that as it may, the  learned  Trial Judge  has given several reasons why this witness cannot  be relied  upon.   He  is an Advocate, that  he  was  once  the Secretary  of  the  Republican Party  of  India  (Khobragade Group), that the third respondent was a candidate on  behalf of that group; and that the witness himself was a  candidate in  the  1967  election.   This witness  says  that  he  was standing  near the gate of the Shaheed Maidan adjoining  the public  road  and heard the speech made by Dhote.   He  also says  that-Dhote  spoke  in support of  the  candidature  of Shende  and  Ramkrishna  Katekhaye  and  said  that  he  was inaugurating  the election campaign of these two  candidates and  thereafter in token thereof a coconut was  broken.   He also said that thereafter Dada Shende spoke making a  formal speech saying that Jambuwantrao Dhote had already said  what had  to be said in connection with his candidature and  that the voters should vote for him. The reasons given by the learned Judge for disbelieving this witness are-(1) that since his own party candidate was  also contesting  the  said election, it was doubtful  whether  he would  attend  the  meeting; (2) that if he  was  a  special inviting for attending the meeting, he would have been given a place of honour by seating him on the dais; (3) that he as well  as  the  second respondent Tirpude  both  belonged  to scheduled caste and would be more inclined towards  Tirpude; (4)  that  when  he was supporting  his  candidate,  it  was unlikely that he would support the second respondent in this election; (5) that after the meeting no action was taken  by him  to contradict the alleged statement made by Dhote;  (6) that  the  Republican Party of India and  the  Congress  had alliance  in  the  past  for the elections  and  it  is  not unnatural  that he had come forward to depose in  favour  of respondent  No.  2 Tirpude for such reasons.   This  witness does not say that he informed Tirpude or any 470 of   his   workers  about  the   objectionable   speech   of Jambuwantrao Dhote, not does he say that he had at any time, before or after the election petition was filed, inform  the petitioners  about the alleged objectionable speech made  by Dhote at the said meeting. Karemore,  P.W. 29, also does not say that he or any of  the other petitioners were told about the presence of P.W. 22 at the meeting addressed by Jambuwantrao Dhote.  It is  pointed out  that  the  observation of the learned  Judge  that  the Republican Party of India and the Congress had entered  into alliances in the previous elections are not supported by any evidence,  It  is true that no such suggestion was  made  to P.W.  22.   In any case, it cannot be said  that  the  other reasons  given by the learned Trial Judge are irrelevant  or are  not  factors which could not be taken into  account  in determining the credibility of his testimony. P.W.  23  Sharadchandra Lambe is interested  in  the  second respondent Tirpude and is under his influence.  The  learned Judge,  while  assessing  the  value  of  his  evidence   in connection  1  with Exts. 42 and 43, pointed out  that  this witness  had stated that Karemore had asked him on  November 16,  1972  whether  he  knew  anything  about  the  election propaganda, and in reply he had told him that he knew  about it.  Karemore, therefore, did not know of this witness  till

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then  as  is obvious ’from the fact that his name  does  not appear  in the list of witnesses submitted on  September  6, 1972.  This witness also says that he was standing near  the gate of the Maidan adjoining the public road, and though  he knows  Haridas  Khobragade  P.W. 22 and both  of  them  were standing  near  the gate of the Maidan, he did not  see  him there.   The  discrepancies  between the  versions  of  this witness  and  P.W.  33 were also  pointed  out.   For  these reasons the learned Trial Judge has not placed any  reliance on his testimony. P.W. 24 Viswanath Shangarpawar is associated with the second respondent Tirpude as his colleague at the Bar for a  number of  years.   His  version  that  the  first  respondent  was accompanied  by--Ram  Hedau when he asked everybody  in  the District  Bar  Room to attend the  meeting  of  Jambuwantrao Dhote  on February 18, 1972, was not spoken to by  P.W.  22. He  says  that he heard the speech from the  window  in  the office  of the Municipal Council which was at a distance  of about  50 feet from the stage.  The witness  adds  something which  others  have  not spoken, when  he  says  that  Dhote addressing  the public said that Shende and  Katekhaye  were the  two  pearls who were put before the public and  if  the public  was willing to get them elected he would  inaugurate the  election campaign by breaking the coconut.  Then  Dhote asked  the public thrice whether they would support the  two candidates, and on their response he broke the coconut.  The discrepancy  between  the evidence of this witness  and  the evidence  of P.W. 23 Lambe was also referred to and  it  was pointed  out  that  this  witness  was  actively  supporting Tirpude  second respondent in the last election and that  he was  going from place to place, which though denied  by  him was  spoken  to  by the witnesses on  behalf  of  the  first respondent.   Though this witness knew the first  petitioner Karemore and the second 471 respondent  Tirpude  well, he did not mention  to  them  the alleged  objectionable  statement  made  by  Dhote  imputing corrupt practices to Karemore and Tirpude.  The witness is a regular reader of the Lok Vani and is a friend of Panditrao, the  printer  of that paper, and yet he did not  inform  him that  the  report of the speech of Dhote  published  in  his Weekly  was not complete and that he had omitted to  mention the  objectionable statement made by Dhote imputing  corrupt practices to Karemore and Tirpude.  The learned Trial  Judge said’   that  if  Jambuwantrao  Dhote  had  made   such   an objectionable statement as alleged, a notice would have been immediately  sent  to him taking objection  to  the  alleged statement, but that was only done after the, publication  of the  report of the speech of Dhote in the Bhandara Times  on February  23, 1972.  Even though this witness says  that  at the  time  of  filing the  complaint  against  the  printer, publisher  and  owner  of the Bhandara  Times  he  had  told Karemore for the first time that he had attended the meeting on  February 18, 1972 there would have been a  reference  in Ext.  93  that  Dhote actually made  such  an  objectionable speech  in  the said meeting. on the other  hand,  the  only allegation  is that the statement was wrongly  published  by the  Bhandara Times and that the publication was  offensive. The statement in Ext. 93 is that the accused persons did not make  any inquiry for ascertaining the correct facts  before its publication.  According to the learned’ Judge the import of  the statements made in the complaint appears to be  that this news or the statement attributed to Jambuwantrao  Dhote was a creature of the imagination of the accused  themselves and not a correct reproduction of the speech of Jambawantrao

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Dhote.   He  also  referred  to the  omission  to  file  any complaint  against  Jambawantrao  Dhote  and  examined   the reasons given by the witness for not going so, as indicating that his presence at the meeting was: highly improbable. P.W.  25  Lalit Kumar Mishra gives  a  completely  different version  of  what Dhote had spoken at the meeting,  He  says that  he  sent a report of the meeting for Yoga  Dharma  and Hindusthan Samachar News Agency, but admits that he did  not include in that report the objectionable speech of Dhote  as he considered it to be defamatory.It is rightly pointed  out that this was not his duty.  He was only expected to send  a faithful report of the speech to his news-papers and it  was for the Editors to delete and edit those portions which they found’  would  offend the law or  were  objectionable.   The learned   Judge  thought  this  witness  was  a  sharp   and intelligent witness and gave twisting answers to support the party  for whichever had come to depose and, therefore,  was not  impressed by the manner in which he gave  the  evidence which  was artificial and unnatural.  Apart from  this,  his statement  that  he neither preserved the notes nor  kept  a copy  of’ the report also belies his statement that  he  was present.  Neither  P.    W.  22, nor P.Ws 23 and 24  mention about this witness to Tirpude or   Karemore though he admits he knew them from 1947; it is difficult to   understand  how Karemore  came  to  know what actually  took  place  at  the meeting.   He  was also not cited as a witness.  1  R.W.  15 denied  that P.W. 25 was present at the meeting on  February 18,  1972. No doubt the learned Advocate for the  appellants tried to explain 472 away  each of the circumstances pointed out by  the  learned Judge  for showing that they are really not such  as  should have  been  taken into consideration  for  discrediting  the testimony  of this witness.  It is contended, for  instance, that  no questions were put to P.Ws 22, 23 and 24 that  they were  not present at the meeting.  On the other hand, It  is urged  that P.W. 27 Saxena and P.W 40 Bhole said  they  were present.   In  our  view,  the  depositions  of  these   two witnesses are suspect, because while holding themselves  out to be on the side of the first respondent they changed their loyalty and have gone all out to support the petitioners and the  second  respondent  in  trying  to  establish   corrupt practices against the first respondent.  As ’we have  stated earlier,  While  dealing with their evidence  in  connection with  Exts.  42 and 43, the learned  Judge  has,  considered their evidence to be unreliable.  If as the learned Advocate for  the  appellants  contends that P.W.  27  (Saxena)  lent substantial  support to the first respondent then how is  it that  he was visiting the second respondent even during  the election ?  It is said that he had only seen Tirpude in  the company of Bhasker Ninawe which is admitted by the  witness. But  this  admission does not mean that he had not  seen  or visited the second respondent on other occasions during  the election.   At  any rate, Karemore did not  see  him  before filing  the  election petition.  Nor does P.W. 27  know  why Katekhaya  was  present at the meeting.  It  was  well-known that  Katekhaya  was  a candidate  in  another  neighbouring constituency  and  for this witness not to know why  he  was present is rather strange.  Likewise, the evidence of  Bhole P. W. 40 was also disbelieved.  This witness says that Dhote called  the public ’Rajhans’ which was not spoken to by  any of the other witnesses who alleged that they were present at the meeting, As we have seen.  P.W. 40 was only appointed an election agent of the first respondent on February 21, 1972, i.e. after the meeting.

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It  is  said  that there was no suggestion  made  in  cross- examination  of either Saxena P.W. 27 or Bhole P.W. 40  that they  had changed their loyalties.  But the fact  that  they appeared  on behalf of the petitioners and chose  to  depose against  the first respondent makes obvious their  intention and change in their loyalties.  The learned Advocate for the appellants contends that when Bhole makes himself liable for his  disqualification if corrupt practice is proved  against him, any statement made by him would be a statement  against his  interest  and  hence his evidence  cannot  be  rejected lightly.   But  neither Bhole nor Saxena have  gone  to  the extent  of saying that they have taken part in  any  corrupt practice  but have imputed to the first  respondent  several corrupt  practices  indulged in by him.  Bhole,  as  earlier noted,  said that Exts. 42 & 43 did. not amount to  communal appeal,  which,  in our view, was on  attempt  to  exculpate himself from any charge of corrupt practice. Reading  the evidence of the above mentioned witnesses as  a whole  and considering the circumstances which weighed  with the learned Trial Judge for disbelieving them, we cannot say that the conclusion arrived at by him is not warranted. There  is, however, the circumstance of the  publication  of the  report  of  the speech of  Jambuwantrao  Dhote  in  the Bhandara  times in which the offending statement appears  to have been printed on February 473 23,  1972.  From this fact, it is sought to be contended  on behalf  of  the  appellants,  that  the  statements  of  the witnesses  are corroborated.  We do not think that the  mere publication  of a report in the Bhandara Times is by  itself sufficient to corroborate the testimony of these  witnesses. It  is  quite  possible,  as  was  the  case  of  the  first respondent,  that  the  Bhandara  Times  being  inimical  to Tirpude may have. published the impugned statement of  Dhote without its being uttered by, Dhote to affect the chances of Tirpude  at the election.  The fact that the Lok Vani  which was  supporting  Tirpude did not mention it,,  nor  has  the reporter who was present at the meeting reported it, nor was action taken earlier to the publication of the report in the Bhandara  Times  to challenge that statement,  nor  was  any notice  given  to  Jambuwantrao Dhote  in  respect  of  that statement, nor did any of these witnesses, having heard  the said objectionable statement at the meeting. on February 18, 1972  mention  it to Tirpude or to the  petitioners,  create considerable doubt in one’s mind as to whether such a state- ment  was  made.   No doubt neither the  Lok  Vani  nor  the Bhandara  Times  referred to Shende having  spoken  at  that meeting.   The  excuse  which  P. W.  24  who  was  actively canvassing for Tirpude gave for not mentioning it either  to Pandit-rao  of  Lok Vani or Hedau who was in charge  of  the election campaign on behalf of the second respondent Tirpude that  Dhote had made the objectionable statement would  also indicate  that  none of these witnesses was present  at  the meeting  or  if  present did not  hear  any  such  offending statement  being  made by Dhote.  In fact P. W. 24  has  not specifically averred that Dhote mader any such statement  at the meeting when he drafted the notice on behalf of Karemore against the printer, publisher and the owner of the Bhandara Times  in respect of the report published therein.  We  have already  referred  in  that connection  what  the  complaint alleged, from which it cannot be said that the learned Trial Judge drew an unwarranted inference that what was complained of  was  not that Dhote had made the speech,  but  that  the Bhandara  Times published a statement which was not made  by Dhote.   We  are inclined to agree with  the  learned  Trial

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Judge  that it is not proved that Dhote made  the  offending statement on February 18, 1972, at Bhandara. Even assuming that such an offending statement was made  and that Shende, as spoken to by the witnesses on behalf of  the appellants,  said at the end that they had heard from  Dhote what  he had to say and that they should vote for him,  that statement  does not establish that Shende had  consented  to what  Dhote  said about Karemore and Tirpude  nor  is  there anything  to prove that Shende believed the statement to  be false or did not believe it to be true.  It is not  disputed that  the first appellant Karemore was given the  ticket  by the  CongressR,  that he had actually filed  his  nomination paper but suddenly withdrew from the contest before the date fixed for withdrawal of nomination papers and Tirpude second respondent  was  nominated on behalf of the  Congress-R  who filed  his  nomination papers for the  election.   In  these circumstances there must have been a considerable  agitation in the public mind and the story may have been current which was expressed by Dhote or Shende.  This assumption finds 474 support  from the evidence of the first  appellant,  Baburao Karemore  P. W. 39, who admittedly did propaganda  work  for Tirpude.  He says that though he did not apply for a  ticket and  though  the Maharashtra Provincial  Congress  Committee recommended Tirpude he read in the newspapers on February 2, 1972 that he was given the ticket.  A meeting was then  held at  Tumsar and it was decided that Tirpude should  be  given the ticket.  He and Ramnarayan Mor then went to Bombay while some  others  went to Delhi.  At Bombay they saw  the  Chief Minister  and Patil the P.C.C. President but they told  them to  go to Delhi.  At Delhi they met Sarva Shri  Uma  Shankar Dixit,  Chavan and Fakhruddin Ali Ahmed and every  one  told them  that  they could do nothing because  Tirpude  did  not apply  for a ticket.  The witness says that he  returned  on the night of February 4, 1972 after he gave a letter to  Mor addressed  to the Congress President and the Prime  Minister requesting them to give the ticket to Tirpude.  On  February 7, 1972, he filed the nomination papers.  That very  evening he heard on the radio that Tirpude was given the ticket  and Tirpude  filed  his nomination papers on February  8,  1972. Then  the  witness withdrew his nomination on  February  11, 1972.   He denied that Tirpude paid Rs. 60,000/- to him  for withdrawing  his candidature, but nonetheless admitted  that the  persons  in the constituency were.  making  allegations against  him  to  this effect.  He says When I  used  to  go canvassing  in  the constituency, people used to say  in  my face  that I had taken Rs. 60,000/- and that I had become  a Mahar  or  that I must have been very happy in  getting  the amount of Rs. 60,000/- or that I sold myself to a Mahar.   I belong  to  Teli  community.  Such kind  of  propaganda  had started  from 19th to 20th".  The witness then says that  he came across the report in the Bhandara Times on February 23, 1972.   After that he gave notice to Dhote, Sharad  Hardikar and  Balwant  Khisti, Editor through  Zinjarde.   From  this statement in examination-in-chief it is obvious that  though the  members  of the Congress Election Committee  said  that Tirpude ,was not given the ticket because he had not applied for it, nonetheless ,he wishes us to believe that he got the ticket  without making an application for it.  Secondly,  he confines  the  charges made against him by  persons  in  the constituency  between  February  19  &  20,  1972  to   give credibility to the allegation that this was after the speech was  made  by  Dhote  on  February  18,  1972.   In   cross- examination,  however, he made certain admissions which  are significant.   He  said that the expenses for  the  election

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petition were being met by others and that he had paid  only Rs.  500/- towards the expenses.  He says he does  not  know whether  petitioners 2 to 4 had made any contribution,  that he  named  certain  persons whom he had  consulted,  but  he denies  that  he  had consulted Tirpude  before  filing  the election petition.  He says that he had filed his nomination as an independent candidate in 1967 election and admits that there  might have been rumours, which according to him  were false rumours, that he had withdrawn his candidature at that time  by accepting money from Manohar Bhai Patel.   He  also says  that it is always difficult to get a  Congress  ticket for  the  Assembly elections, but it was true  that  he  was given  the  ticket  without ,asking for it.   He  says  that getting the Congress ticket is a coveted 475 thing.   Then  he  admits  that Tirpude  was  a  better  and competent  candidate,  but he was confident that if  he  had contested  the Assembly election he would have got  elected. ’But in spite of his prospects he surrendered the ticket  in favour  of Tirpude.  Then he makes a further admission  that after  he  surrendered the ticket in favour of  Tirpude  his supporters did say to him that be bad foolishly  surrendered the ticket which he had got and had given it to a Mahar  and thereby  he  had spited the Teli  community  (Telvanche  Nak Kaple).   These persons started saying this to him after  it was known in the town that in his place the ticket was given to  Tirpude i.e. from February 8, 1972.  This gives the  lie direct to his assertion that the allegations against him for surrendering the ticket were being made between February  19 &  20, 1972, when in fact they were made even from  February 8,  1972  i.e. from the date Tirpude filed  his  nomination. The  fact that he admits that he surrendered the  ticket  in favour  of Tirpude, gives the impression that it  must  have gained  currency  in the constituency that it  was  done  on receiving  some consideration.  If such was the  case,  then Dhote  and  Shende if he can be said to have  consented  may have  believed the statement to be true or at any  rate  may not have believed it to be false, particularly having regard to his past reputation.  The extra-ordinary circumstances in which this was done at the nick of time might have  inclined them  to that belief.  As Dhote was not examined, we do  not have his version in that regard.  In any view of the matter, we hold that the appellants have not established the corrupt practice under this head by any credible evidence. Lastly,  the quantum of costs awarded by the High Court  has been  challenged on the ground that the costs were  not  the costs incurred by the first respondent.  We have dealt  with this  aspect  in  Laxminarayan’s  case,  to  which  we  have referred   earlier,  where  we  have  held  that  the   word "incurred’  occurs  both in ss. 96 and 119 of  the  Act  and means  what is "actually spent".  In that case, as  in  this case,  the  petition was dismissed by the High  Court  under clause (a) of section 98.  Accordingly, it was incumbent  on the High Court to award costs to the first respondent  which costs  he  is  entitled  to if he could  show  that  he  has incurred them.  Admittedly, there is no proof of payment  of any fee to counsel by the first respondent.  As such he will not be entitled to the amount of Rs. 400/- per diem  awarded by  the  High Court.  He will, however, be entitled  to  any other  costs which are shown to have been incurred  by  him. The  learned Advocate for the first respondent submits  that his  client  should  be  given  an  opportunity  to  produce receipts of payment of fees because at the 476 time when the case was decided the costs were being  awarded

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according  to  the Rules of the High Court.   In  our  view, these Rules did not preclude his client from filing any  fee certificate, if he had paid the amount and obtained it.   We cannot, therefore, allow him to do so now. in the result, the appeal is dismissed, except with  respect to  counsel’s fee awarded to the first respondent  in  which respect the appeal is partly allowed.  The first  respondent will be entitled to such costs as have been incurred by  him in this Court as well as in the High Court. S.C Appeal dismissed. 477