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PETITIONER: DADASAHEB DATTATRAYA PAWAR & ORS.

       Vs.

RESPONDENT: PANDURANG RAOJI JAGTAP & ORS.

DATE OF JUDGMENT13/01/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT CHANDRACHUD, Y.V. KRISHNAIYER, V.R.

CITATION:  1978 AIR  351            1978 SCR  (2) 524  1978 SCC  (1) 504  CITATOR INFO :  R          1984 SC1516  (7)  F          1987 SC1577  (26)

ACT: Election  Petition-Corrupt practice as envisaged by S.  144- 1(3)  of the Maharashtra Cooperative Societies  Act,  1960,- Burden of proof-Nature of proof to show the guilt under  the section   is  the  same  as  that  under  S.  123   of   the Representation of the People Act, 1951.

HEADNOTE: Shetkari Sahakari Sangh, a specified cooperative society  as defined in S.  144-A  read with S. 73-G of  the  Maharashtra Cooperative Societies Act, 1960, is     duly      registered under the Act with the entire Kolhapur district as its  area of  operation and has voting members of two types viz.,  (i) individual  members and (ii) cooperative societies.  In  the election  of the members of its Board of Directors, held  in the  manner  laid down in Chapter Xi A of the  Act  and  the rules  made thereunder in the second half of the year  1973, two groups are headed by Baba Nesarikar who was earlier  the Managing  Director  of the Sangh and another headed  by  one Jagtap  Guruji  entered  the election  fray.   In  the  said election, all the three appellants in Appeal No. 41 and  all the  six appellants in Appeal, No. 42 were declared  elected from the constituency of individual members numbering  25000 and the constituency of the cooperative societies affiliated to the Sangh numbering 650 respectively.  Baba Nesarikar was himself returned unopposed from the combined constituency of individual members and cooperative societies.  TheNesarikar group  captured all the seats contested by it.Respondents  1 and 2filed  two separate election petitions  ’under  s. 144-T of the Act read with Rule74  of  the   Maharashtra Specified Cooperative Societies Elections to CommitteesRules, 1971, challenging the validity of the elections on a  number of  grounds.  The Commissioner Pune, by his common  judgment and order dated December 16, 1975, allowed them on the  sole ground  that the appellants were guilty of corrupt  practice as envisaged by Section 144-1(3) of the Act, in that special vehicles  were hired with the knowledge and consent  of  the appellants  for the free conveyance of voters  from  Bhawani

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Mandap  to the polling station and back and used as such  on the day of poll. Allowing the appeals by special leave, the Court HELD  : (1) As Section 144-1 of the Maharashtra  Cooperative Societies   Act,  1960,  corresponds  to  S.  123   of   the Representation  of the People Act, 1951 the same  principles must  govern  the  adjudication  of  disputes  relating   to elections under the latter Act. [528 A-B] (ii)This  Court has laid down the following principles  and tests under S. 12, of the Representation of the People  Act, 1951               (a)   In   considering   whether   a   corrupt               practice described in S. 123(5) of the Act  is               committed,  conveying  of electors  cannot  be               dissociated from the hiring of a vehicle. [528               B]               Balwant  Singh  v.  Lakshmi  Narain  [1960]  3               S.C.R. 91=AIR 1960 S.C. 770 applied.               (b)   To establish the corrupt practice  under               s.  123(5) of the Act, it is necessary for  an               election  petitioner  to prove  (i)  that  any               vehicle  or vessel was hired or was  procured,               whether  on  payment  or  otherwise,  by   the               returned candidate or by his election agent or               by  any other person with the consent  of  the               candidate or of his election agent; (ii)that               it was used for the conveyance of the electors               to  or from any polling station and  (iii)that               such  conveyance  was  free  of  cos  to   the               electors.  Failure to substantiate any one  of               these  ingredien leads to the collapse of  the               whole charge. [528 C-D]               52 5               Ch.  Razik Ram Vs.  Ch.  J. S. Chauhan & Ors’.               [1975]  4.  S.C.C. 769=A.I.R.  1975  S.C.  667               (Applied).               (c)The   standard  of  proof  required   to               establish a corrupt practice is strict  proof,               the proceedings against imputation of  corrupt               practices, being quasi-criminal. [529 C]               Rahim  Khan v. Khurshid Ahmed & Ors. [1975]  1               S.C.R.  643= [1974] 2 S.C.C.  660=A.I.R.  1975               S.C. 290; Ch.  Razik Ram v. Ch.               J.    S.  Chouhan & Ors. [1975] 4 S.C.C.  769=               A.I.R.  1975 S.C. 667; Hem Raj v. Ramji Lal  &               Anr. [1975] 4 S.C.C. 671=A.I.R. 1975 S.C. 382;               Om  Prabha v. Charan Das [1975] Supp.   S.C.R.               107;  Amolak Chand Chhazad v. Bhagwandas  Arya               (Dead) & Anr. [1977] 3 S.C.C. 566=A.I.R.  1977               S.C.  813;  Lakshmi Raman Acharya  v.  Chandan               Singh  & Ors. [1977] 1 S.C.C. 423=A.I.R.  1977               S.C.   587;  Narendra  Madivalapa   Kheni   v.               Manikrao   Patil  &  Ors.  [1977]  4.   S.C.C.               16=A.I.R.  1977 S.C. 2171; Ramji Prasad  Singh               v.Ram  Bilas Jha & Ors. [1977] 1. S.C.C.  260,               applied and               (d)   It  is unsafe in an election dispute  to               accept oral evidence at its face value  unless               it    is   backed   by    unimpeachable    and               incontrovertible     documentary     evidence.               [430 A] Rahim  Khan  v. Khurshid Ahmed & Ors. [1975] 1  S.C.R.  643= [1974] 2 S.C.C. 660=A.I.R. 1975 S.C. 290; M. Narayana Rao v. G. Venkata Reddy & Ors. [1977] 1 S.C.R. 490 followed. In  the instant case : (i) The evidence led by the  election

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petitioners falls far short of the requisite proof.  It does not  at  all establish that vehicles were  procured  by  the appellants  or their election agents or with the consent  of anyone  of  them by any other person or that the  same  were used  for  free  conveyance of the voters  to  or  from  the polling station; (ii) The Commissioner went wrong in law  in his  approach to and assessment of the evidence  adduced  in the  case and arrived at unwarranted conclusions  merely  on the  basis  of  probabilities  completely  disregarding  the aforementioned  well settled principles that election  peti- tions   alleging   commission  of  corrupt   practices   are proceedings  of a quasi criminal nature and the burden  lies heavily  on  those  candidate to  prove  the  charge  beyond reasonable  sioner overlook the glaring infirmity  that  the inasmuch as they (the election petitioners) constituting the corrupt  practice alleged lants and made no mention  of  the essential  who assail the election of a returned  doubt; and (iii)  The Commissioner selection petitions  suffered  from, omitted to set out the material facts to have been committed by the appellant and no mention of the essential  ingredient that the electors were conveyed free of charge in the  buses procured by the appellants or their election agents or  some other persons with their consent.  The story woven by PWs. 5 to  7 who are camp followers and sympathisers of PWs. 3  and 4,  their  testimony falling short of compelling  degree  of proof,  cannot  be  easily  swallowed  in  the  absence   of incontrovertible   evidence  and   contemporaneous   written complaints to the concerned authorities. [532 H , 533 A-E] Rahim  Khan  v.  Khurshid  Ahmed  &  Ors.  [1975]  1  S.C.R. 643=[1974] 2 S.C.C. 660; A.I.R. 1975 S.C. 290;  Kanahaiyalal v. Mannalal & Ors. [1976] 3 S.C.C. 646; Amolak Chand Chhazad v. Bhagwandas Arya (dead) & Anr. [1977] 3 S.C.C.  566=A.I.R. 1977 S.C. 813; Mohd.  Yasin Shah v. All Akbar Khan [1977]  2 S.C.C. 23 followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 41 and  42 of 1977. Appeals  by Special Leave from the Judgment and Order  dated 16-12-75  of  the  Commissioner,  Pune  Division,  Poona  in Election Petition No. C.O.P./81(43) and C.O.P./81(42). V.M.  Tarkunde, (Miss) Manik Tarkunde, D. M. Rane and  K. Rajendra Chaudhuri, for the Appellants. 526 Y.S.  Chitale, V. N. Ganpule and (Mrs.) V. D. Khanna  for Respondent No. 1 in both the appeals. P.H.  Parekh and Kailash Vasdev for Respondent No.  5  in both the appeals. V.   D. Khanna for Respondents 12 in C.A. 42 and R. 18 in C. A. 41. M.   N.  Shroff for RR. 3 and 6 in CA 41 and RR 3 and 15  in C.A. 42. The Judgment of the Court was delivered by JASWANT  SINGH, J.-These appeals Nos. 41 and 42 of  1977  by special  leave  are directed against a common  judgment  and order  dated  December 16, 1975 made  by  the  Commissioner, Pune, Division Poona, in Election Petitions Nos.  COP/81(43) and   COP/81(42)  presented  under  section  144-T  of   the Maharashtra  Cooperative  Societies Act,  1960  (hereinafter referred  to  as  ’the  Act)  read  with  Rule,  74  of  the Maharashtra  Specified  Cooperative Societies  Elections  to Committees  Rules,  1971 setting aside the election  of  the appellants  to  the,  Board of  Directors  of  the  Shetkari

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Sahakari  Sangh Ltd., Kolhapur (hereinafter referred  to  as ’the Sangh’) on the ground that they were guilty of  corrupt practice as envisaged by section 144-1(3) of the Act in that Special  buses  were procured on payment from  the  Kolbapur Municipal  Transport  with  the  appellants’  knowledge  and consent and used for the whole day on November 20, 1973 i.e. the  day of poll for the free transport of the  voters  from the  Sangh’s  head office in Bhawani Mandap to  the  polling station in Market Yard and back. The  facts  and circumstances giving rise to  these  appeals which  lie  in a short compass are : The Sangh  which  is  a specified  Cooperative Society as defined in  section  144-A read  with section 73-G of the Act and was registered in  or about  the  year  1939 and as such is now  deemed  to  be  a registered  society under the Act with the  entire  Kolhapur District as its area of operation has voting members of  two types  viz.  (1)  individual members  and  (2) cooperative societies.   Being  a  society  belonging  to  one  of   the categories specified in section 73-G of the Act, election of the members of its Board of Directors was held in the manner laid  down  in Chapter XI-A of the Act and  the  rules  made thereunder  in the second half of the year, 1973.   In.  the said  election  two  groups  headed  by  Jagtap  Guruji   as representing   the  respondents  1  and  2  who   were   the petitioners  in  the aforesaid election  petitions  and  the other  headed  by  Baba  Nesarikar,  who  was  the  Managing Director  of  the Sangh prior to the  Election  entered  the fray.   In  the said Election, all the three  appellants  in Appeal  No.  41  and all the six appellants  in  the  sister Appeal No. 42 were declared elected from the constituency of individual  members numbering 25000 and the constituency  of the cooperative societies affiliated to the Sangh  numbering 650  respectively.   Baba  Nesarikar  was  himself  returned unopposed 52 7 from  the  combined constituency of individual  members  and cooperative societies,Thus  the Nesarikar group  captured all the seats contested by it. Aggrieved  by the  result of the election in so far as     it related to the aforesaid two constituencies of individual members and the cooperative societies,  respondents 1 and 2 filed two separate  election petitions Nos.  COP/81(43) and COP/81(42) under section 144- of  the Act read with Rule 74 of the  Maharashtra  Specified Cooperative  Societies Elections to Committees  Rules,  1971 challenging the validity of the aforesaid elections to  the, Board  of  Directors  of  the  Sangh.   The  said   election petitions  though  challenged on a number  of  grounds  were allowed  by the Commissioner by his aforesaid  judgment  and order on the sole ’ground that the appellants were guilty of corrupt practice as envisaged by section 144-1(3) of the Act in  that special vehicles were hired with the knowledge  and consent of the appellants for the free conveyance of  voters from Bhawani Mandap to the polling station and back and used as  such on-the day of the poll.  Section 144-1(3)  of  the, Act  under  which the election of the  appellants  has  been declared void runs as follows :-               "144-               1...........................................               (3)  The  hiring  or  procuring,  whether   on               payment or otherwise, of any vehicle or vessel               by  a candidate or his agent or by  any  other               person with the consent of a candidate or  his               election agent, or the use of such vehicle  or               vessel for the free conveyance of any  elector               (other than the candidate himself, the members

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             of  his  family or his agent) to or  from  any               polling station :               Provided  that,  the hiring of  a  vehicle  or               vessel by an elector or by several electors at               their joint costs for the purpose of conveying               him  or them to and from any  polling  station               shall  not be deemed to be a corrupt  practice               under this clause :               Provided  further that, the use of any  public               transport   vehicle  or  vessel   or   railway               carriage  by any elector at his own  cost  for               the  purpose  of going to or coming  from  any               polling  station shall not be deemed to  be  a               corrupt pratice.               Explanation.-In  this clause and in  the  next               succeeding  clause, the  expression  "vehicle"               means  any  vehicle used or capable  of  being               used  for  the  purpose  of  road   transport,               whether  propelled  by  mechanical  power   or               otherwise  and whether used for drawing  other               vehicles or otherwise." Appearing,  on  behalf of the appellants, Mr.  Tarkunde  has vehemently  urged  that on the evidence on  the  record,  it could not be justifiably ’held that the appellants committed the corrupt practice imputed to them, that the Commissioner, misdirected  himself  in setting aside the election  of  the appellants  ignoring the basic principles that in the  trial of  an election petition, the burden ties heavily  upon  the person  who  challenges  the  result  of  the  election   to establish  the commission by the returned candidate  or  his agent of acts which he regards as corrupt and responsibility therefor of the successful candidate 5 2 8 directly  or through his agents or with his consent for  its practice  not  by mere preponderance of probability  but  by cogent and reliable evidence beyond any reasonable doubt. We have given our thoughtful consideration to the  aforesaid submissions  of  Mr. Tarkunde and are of  the  opinion  that there  is considerable force in them.  As section  144-1  of the Act corresponds to   section  123 of the  Representation of the People Act, 1951, thesame      principles      must govern the adjudication of disputes relating tothe  election under the Act as it governs the adjudication of disputes  in relation to elections under the Representation of the People Act,1951. In regard to section 123(5) of the Representation of the People Act, 1951 which before its amendment by Act 47 of 1966 was identical in terms with section 144-1(3) of  the Act, it was held by this Court in Shri Balwant Singh v. Shri Lakshmi  Narain(1)  that in Considering  whether  a  corrupt practice described in section 123(5) is committed, conveying of  electors  cannot  be dissociated from the  hiring  of  a vehicle. It has also been held by this Court in Ch.  Razik Ram v. Ch. J.  S.  Chouhan  & Ors.(2) that  to  establish  the  corrupt practice  under section 123(5) of the Representation of  the People Act, 1951, it is necessary for an election petitioner to  prove  (i) that any vehicle or vessel was hired  or  was procured  whether  on payment or otherwise by  the  returned candidate  or by his election agent or by any  other  person with the consent of the candidate or of his election  agent; (ii) that it was used for the conveyance of the electors  to or  from any polling station and (iii) that such  conveyance was  free of cost to the electors.  Failure to  substantiate any  one of these ingredients leads to the collapse  of  the whole  charge.   Let  us  now  examine  and  scrutinize  the

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evidence  adduced  in  the case and  find  out  whether  the aforesaid  ingredients stand proved in the instant  case  or not.   Before  doing  so, it would be  well  to  recall  the principles  regarding  the  standard of  proof  required  to establish  a corrupt practice which have  been  consistently laid  down in the decisions of this Court in Rahim  Khan  v. Khurshid  Ahmed  &  Ors.(3); Ch.  Razik Ram v.  Ch.   J.  S. Chouhan & Ors. (supra); Hem Raj v. Ramji Lal & Anr. (4) ; Om Prabha v. Charan Das(5); Amolak Chand Chhazad v.  Bhagwandas Arya  (Dead)  & Anr.(6); Lakshmi Raman  Acharya  v.  Chandan Singh & Ors.(7); Narendra Madivalapa Kheni v. Manikrao Patil &  Ors.(8) and Ramji Prasad Singh v. Rain Bilas Jha  &  Ors. (9) which one or the other of us has been a party.  In Rahim Khan  v. Khurshid Ahmed & Ors. (supra), it was  observed  by this Court as under :- (1)  [1960]    3 S.C.R. 91A.I.R. 1960 S.C. 770. (2)  [19751    4 S.C.C. 769A.T.R. 1975 S.C. 667. (3)  [1975]    1 S.C.R. 643(1974) 2 S.C.C. 660 : A.I.R. 1975 S.C. 290. (4)  [1975]    4 S.C.C. 671A.I.R. 1975 S.C. 382. (5)  [1975] Supp.  S.C.R. 107. (6)  [1977]3 S.C.C. 566A.I.R. 1977 S.C. 813. (7)  [1977]1 S.C.C. 423A.I.R. 1977 S.C. 587. (8)  [1977]4 S.C.C. 16A.I.R. 1977 S.C. 2171. (9)  [1977] 1 S.C.C. 260. 529               "We  have  therefore to  insist  that  corrupt               practices,  such as are alleged in this  case,               are examined in the light of the evidence with               scrupulous care and merciless severity.               However,  we have to remember another  factor.               An election once held is not to be treated  in               a light-hearted manner and defeated candidates               or  disgruntled electors should not  get  away               with  it  by  filing  election  petitions   on               unsubstantial   grounds   and    irresponsible               evidence,  there  by  introducing  a   serious               element of uncertainty in the verdict  already               rendered by the electorate.  An election is  a               politically  sacred  public act,  not  of  one               person   or  of  one  official,  but  of   the               collective  will  of the  whole  constituency.               Courts  naturally  must  respect  this  public               expression  secretly written and show  extreme               reluctance  to  set aside or declare  void  an               election  which has already been  held  unless               clear  and  cogent  testimony  compelling  the               Court  to uphold the corrupt practice  alleged               against  the  returned candidate  is  adduced.               Indeed   election  petitions   where   corrupt               practices  are  imputed must  be  regarded  as               proceedings of a quasi-criminal nature wherein               strict  proof  is necessary.   The  burden  is               therefore heavy on him who assails an election               which has been concluded."               In Ch.  Razik Ram v. Ch.  J. S. Chouhan & Ors.               (supra)  it  was laid down by  this  Court  as               follows :-               "A charge of corrupt practice is substantially               akin to a criminal charge.  The commission  of               a  corrupt  practice  entails  serious   penal               consequences.    It  not  only  vitiates   the               election  of the candidate concerned but  also               disqualifies him from taking part in elections               for a considerably long time.  Thus, the trial

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             of an election petition being in the nature of               an accusation, bearing the indelible stamp of               quasi-criminal  action, the standard of  proof               is the same as in a Criminal case.  Just as in               a  criminal case, so in an election  petition,               the  respondent  against whom  the  charge  of               corrupt  practice is levelled, is presumed  to               be innocent unless proved guilty.  A grave and               heavy  onus therefore rests on the accuser  to               establish  each  and every ingredient  of  the               charge by clear, uneouivocal and unimpeachable               evidence beyond reasonable doubt               A   charge  of  corrupt  practice  cannot   be               established by mere balance of  probabilities,               and,  if, after giving due  consideration  and               effect  to  the totality of the  evidence  and               circumstances  of  the case, the mind  of  the               Court  is left rocking with reasonable  doubt-               not  being  the doubt of a  timid,  fickle  or               vacillating  mind-as  to the veracity  of  the               charge, it must hold the same as not proved.               A  court  embarking upon  an  appreciation  of               evidence, without this rudder and compass,  is               apt  to, find itself at sea,  mistaking  every               flotsam  for  shore, suspicion for  proof  and               illusion for reality." Another principle which is also well established is that  it is unsafe in an election dispute to accept oral evidence  at its  face  value unless it is backed  by  unimpeachable  and incontrovertible   documentary   evidence.   It   would   be profitable in this context to refer to the two decisions  of this  Court in Rahim Khan v. Khurshid Ahmed &  Ors.  (supra) and  M. Narayana Rao v. G. Venkata Reddy & Ors.(1) In  Rahim Khan  v.  Khurshid  Ahmed & Ors. (supra),  it  was  held  as follows               " We must emphasize the danger of believing at               its  face value oral evidence in  an  election               case without the backing of sure circumstances               or   indubitable   documents.   It   must   be               remembered that corrupt practices may  perhaps               be   proved  hiring  half-a  dozen   witnesses               apparently  respectable and disinterested,  to                             speak to short of simple episodes such as that               a  small village meeting took place where  the               candidates  accused  his  rival  of   personal               vices.    There  is  no  X-ray   whereby   the               dishonesty  of  the story can  be  established               and, if the Court were gullible enough to gulp               such oral versions and invalidate,  elections,               a  new  menace to our electoral  system  would               have   been  invented  through  the   judicial               apparatus.  We regard it as extremely  unsafe,               in the present climate of kilkenaycat election               competitions  and partisan  witnesses  wearing               robesof   veracity,  to  upturn  a  hard   won               electroral  victory merelybecause lip  service               to a corrupt practice has been renderedby some               sanctimonious witnesses.  The Court must  look               forserious assurance, unlying circumstances or               unimpeachable   documents  to   uphold   grave               charges  of corrupt practices which might  not               merely   cancel  the  election   result,   but               extinguish many a man’s public life."               In M. Naroyana Rao v. G. Venkata Reddy &  Ors.               (supra), it was observed as follows :-

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             "A charge of corrupt practice is easy to level               but difficult to prove.  If it is sought to be               proved only or mainly by oral evidence without               there   being  contemporaneous  documents   to               support  it, court should be very  careful  in               scrutinizing the oral evidence and should  not               lightly  accept  it  unless  the  evidence  is               credible,  trustworthy,  natural  and  showing               beyond   doubt  the  commission   of   corrupt               practice, as alleged." Bearing  in mind the principles quoted above, we  would  now proceed  to  scan  the  evidence  to  find  out  whether  it establishes  beyond reasonable doubt the ingredients of  the corrupt practice, vaguely and nebulously relied upon by  the election  petitioners.  Out of the seven witnesses  produced by the election petitioners, four have deposed in favour  of the  appellants.   Shankar  Bajirao  Gaikwad  and   Anantrao (Yashwant  Suryawanshi (P.Ws 1 & 2) who are the  drivers  of the  Kolhapur  Municipal  Transport  have  stated  that   on November 20, 1973-the day of the poll-buses of the  Kolhapur Municipal Trans- (1)  [1977] 1 S.C.R. 490. 531 port which were taken on hire on contract basis made several trips  from the bus stand of Bhawani Mandap (where the  head office of the Sangh is situate) to Market Yard-a distance of 3  to 32-1/2 miles and back carrying people who were  saying that  there  was  an election in the  Market  Yard’.   These witnesses   who  are  independent  and  disinterested   have categorically  affirmed  in the course of  their  statements that  Sawant and Shinde who were present at the time of  all the  trips  and were seating the passengers  in  the,  buses "were taking money from every passenger". Appasaheb  Balwantrao  Sawant  (P.W. 3)  and  Ashok  Mahadeo Chinde  (P.W.  4) who are transporters  by  profession  have unequivocally  stated that hiring of buses by them from  the Kolhapur  Municipal Transport on casual contract basis  vide applications  Exhibits A-1 and A-5 dated November  19,  1973 were  their  own individual and  personal  transactions  and neither  Nesarikar nor any other candidate sponsored by  the Sangh  had  anything to do with them; that  they  themselves were  present at the time of all the trips made by the  said buses  from  Bhawani  Mandap  to Market  Yard  and  back  on November  20, 1973 and that every passenger was  charged  50 paise  per  trip and no one was taken free of  charge  while going to or returning from Market Yard. The statement of Namdeo Govind Pawar (P.W. 5) who was  serv- ing  as  a  clerk  in the Sangh from  November  4,  1964  to November 30,, 1973 and who according to his own admission is on friendly terms with Vishnu Bhau Patil who was set up as a candidate for the election by Jagtap group is inter alia  to the  effect  that twice on the eve of the election  held  in 1973,  he  and other employees of the Sangh  went  about  in batches  at the behest of Baba Nasarikar and  Capt.   Ghatge who were Managing Director and Secretary respectively of the Sangh ostensibly for the purpose of inspecting and  auditing the  societies  affiliated to the Sangh but in  reality  for canvassing  votes for Nesarikar group; that Nesarikar  group transported  the  voters on November 20, 1973  from  Bhawani Mandap  to Market Yard in Kolhapur Transport Buses  arranged by  it and urged them to cast their votes in favour  of  the candidates  put  up by it.  The witness has  further  stated that  "it  was told that the money for bus  should  not.  be taken".   The  evidence  of  this  witness  about  the  free conveyance of the voters from Bhawani Mandap to Market  Yard

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and back is merely of a hearsay character as he has  clearly admitted  that he remained all along in Bhawani  Mandap  and did  not  go  to the polling station by  any  of  the  buses procured   from   the  Kolhapur  Municipal   Transport   for transporting the voters. Madhavrao Shripatrao Bhonsale (P.W. 6) has stated that being an  individual member of the Sangh, he was a voter  for  the election  which took place in the year, 1973; that the  said election was contested by two groups viz.  Jagtap group  and Baba  Nesarikar group-. that supporters of both  the  groups were canvassing for their respective candidates; that he and other  voters  went from Bhawani Mandap to Market  Yard  and back in the city buses arranged by Nesarikar group: 532 that 25 to. 30 servants of the Sangh were seating the voters in the causes and asking them to vote for the candidates  of Nesarikar  group  and  that for the  aforesaid  bus  travel, "money was not taken from the voters".  He has admitted that he  is  in  the service of the  Market  Committee  of  which Vijayarao Yadav, who entered the election ’ray as a  nominee of  Jagtap group, is a Member and his i.e. Vijayrao  Yadav’s father  is  the President.  The testimony  of  this  witness being manifestly of an interested and partisan character  is not  free from suspicion.  That apart, the evidence of  this witness  cannot  be  accepted it its face  value  for  other reasons  as well.  Although he has admitted that there  were 30  to 40 people in the vehicle by which he was  carried  to Market  Yard,  he has not been able to state if  any  person present before the Commissioner at the time of his statement was in that vehicle or not.  It is also highly unlikely that he should have come to Bhawani Mandap a day prior to the day of  the  poll when according to his on admission,  he  could have  cast his vote by coming to Market Yard on the  day  of poll  itself  and while coming from Vadgaon by  any  if  the routes, Market Yard comes first. Kumbhar Ganpati Shankar who is the fast witness produced  by the  election  petitioners  has  stated  that  he  was   the representative  of Atigre Vikas Seva Society and a voter  in the  constituency  of the, cooperative societies;  that  the election  held  in  1973 was contested by  two  groups  viz. Nesarikar  group and Jagtap group; that he also  fought  the election as an independent candidate; that on the day of the Poll  i.e. on November 20, 1973, be went to, Bhawani  Mandap where  he found 15 to 20 employees of the Sangh seating  the voters  in buses, distributing the pamphlets issued by  Baba Nesarikar  group  to them and familiarising  them  with  the names  of  candidates sponsored by hat group  and  that  no, money  was  demanded  from or paid by the  voters  who  were carried in those buses to and fro the polling station.  This witness  has admitted that he belongs to  Atigre,  residents whereof  enjoyed the facility of travel by bus to  Kolhapur, and that while so travelling one reaches Market Yard  first, then  the  city and then Bhawani Mandap. It  is,  therefore, highly unlikely and improbable that the witness would go  to Bhawani  Mandap  and not direct to Market Yard  which  comes first. The evidence of the last three witnesses who have  attempted to support the election petitioners is clearly  contradicted not  only by Appasaheb Balwantrao Sawant (P.W. 3) and  Ashok Mahadeo  Chinde P.W. 4) but also by Shankar Bajirao  Giakwad (P.W. 1) and Anantrao Yashwant Suryewanshi (P.W. 2) who have categorically  stated hat fare at the rate of 50 paise  per trip was charged from every passanger carried by, them  from Bhawani  Mandap to Market Yard and back on the day  of  poll and that no, one was carried free.

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The  evidence  led by the election petitioners  as  analysed above  falls far short of the requisite proof.  It does  not at  all  establish  that  vehicles  were  procured  by   the appellants  or their election agents or with the consent  of any  one of them by any other person or that the  same  were used for free conveyance of the voters to or fro the polling 533 station.   The Commissioner manifestly went wrong in law  in his  approach to and assessment of the evidence adduced  in the  case and arrived at unwarranted conclusions  merely  on the  basis  of  probabilities  completely  disregarding  the aforementioned   well  settled  principles   that   election petitions  alleging  commission  of  corrupt  practices  are proceedings  of a quasi criminal nature and the burden  lies heavily  on  those  who assail the election  of  a  returned candidate to, prove the charge beyond reasonable doubt.   It is  also  unfortunate that the Commissioner  overlooked  the glaring infirmity that the, election petitions suffered from inasmuch  as  they  omitted to set out  the  material  facts constituting  the  corrupt  practice alleged  to  have  been committed  by  the appellants and made no,  mention  of  the essential ingredient that the electors were conveyed free of charge  in  the buses procured by the, appellants  or  their election agents or some other person with their consent.  It appears, to us that in the roving inquiry that was  launched upon, the election petitioners tried to clutch at the afore- said  two  applications  made  to  the  Kolhapur   Municipal Transport by Appasaheb Balwantrao Sawant (P.W. 3) and Ashok Mabadeo  Chinde (P.W. 4) and induced P.Ws 5 to 7 who  appear to be their camp followers and sympathisers to weave a story which in view of the dictum laid down by this Court in Rahim Khan v. Khurshid & Ors. (supra) and followed in Kanahaiyalal v.  Mannalal & Ors.(1), Amolak Chand Chhazad  v.  Bhagwandas Arya  (Dead)  & Anr. (supra) and Mohd.  Yasin  Shah  v.  Ali Akbar  Khan(2)  cannot  be easily swallowed  in  absence  of incontrovertible   evidence  and   contemporaneous   written complaints to the concerned authorities.  May be P.Ws. 5  to 7  are not liars but, as already observed,  their  testimony falls far short of the compelling degree of proof.  Thus  we find it extremely difficult on the material on the record to bold  that the charge of corrupt practice  levelled  against the  appellants  is  made out.   Accordingly  we  allow  the appeals  and set aside the impugned judgment and  order  but leave the parties to bear their own costs. S.R. Appeals allowed. (1)  [1976] 3 S.C.C. 646. (2)  [1977] 2 S.C.C. 23. 534