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PETITIONER: LAXMI NARAYAN NAYAK

       Vs.

RESPONDENT: RAMRATAN CHATURVEDI AND ORS.

DATE OF JUDGMENT22/12/1989

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) KULDIP SINGH (J)

CITATION:  1991 AIR 2001            1989 SCR  Supl. (2) 581  1990 SCC  (2) 173        JT 1989  Supl.    438  1989 SCALE  (2)1439

ACT:     The  Representation  of  Peoples  Act,  1951:   Sections 123(2),   (3)  and  (3A)--Corrupt   Practice--Bribery--Proof of--Element of ’bargaining’--Necessity for.

HEADNOTE:     Elections  to the Madhya Pradesh Vidhan Sabha were  held in  the  months of February/March 1985.  The  appellant  and Respondent No. 1 were the contesting candidates from  Niwadi Legislative  Assembly constituency No. 34. Respondent No.  1 having  secured majority of votes, was declared  elected  on 6.3.1985  to the Madhya Pradesh Vidhan Sabha. The  appellant challenged the election of the respondent No. 1 in the  High Court  of  Madhya Pradesh Jabalpur alleging that  the  first respondent  was guilty of adopting corrupt practices  within the meaning of sub-sections (2), (3) and (3A) of Section 123 of the Representation of Peoples Act, 1951. Respondent No. 1 denied  the allegations made in the election  petition.  The High Court dismissed the Election Petition holding that  the appellant  had not substantiated all the charges levered  by him  against  respondent  No. 1. Hence this  appeal  by  the appellant.  Before  this Court the  appellant  pressed  only issues 3, 4 and 5 and gave up the rest. Dismissing the appeal, this Court,     HELD:  An election petition where corrupt practices  are imputed must be regarding as proceedings of a quasi-criminal nature wherein strict proof is necessary. Since, a charge of corrupt  practice, the consequence of which is not  only  to render  the election of the returned candidate void, but  in some  cases to impose on him a disqualification it  must  be proved  on  appraisal of the evidence adduced  by  both  the parties particularly by the election petitioner who  assails the election of a returned candidate. [591B-C]     The  element of bargaining is completely absent  in  the present  case. Needless to say that it is necessary for  the purpose of proving the corrupt practice of bribery to estab- lish that there was an element of bargaining. [592C] 582 Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, [1987] Supp. SCC  93;  Kona Prabhakara Rao v. M. Seshagiri  Rao  &  Anr., [1982] 1 SCC 442; Manphul Singh v. Surinder Singh, [1974]  1

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SCR 52; Jamuna Prasad Mukheriya & Ors. v. Lachi Ram &  Ors., [1955]  1  SCR  608; Rahim Khan v. Khurshid  Ahmed  &  Ors., [1974] 2 SCC 660; Ram Sharan Yadav v. Thakur Muneshwar  Nath Singh & Ors., [1984] 4 SCC 649; Rahim Khan v. Khurshid Ahmed JUDGMENT: &  Ors., [1977] 1 SCR 490; Lakshmi Raman Acharya v.  Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji Prasad Singh v. Ram Bilas  Jha & Ors., [1977] 1 SCC 260; Mohan Singh v.  Bhanwar Lal & Ors., [1964] 5 SCR 12; Harjit Singh Mann v. S.  Umraon Singh  &  Ors., [1980] 1 SCC 713; lqbal Singh v.  S.  Gurdas Singh  &  Ors., [1976] 1 SCR 884;  Lalroukung  v.  Haokholal Thangam & Anr., ELR Vol 41 Page 35, referred to.

&     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  4359 (NCE) of 1986.     From the Judgment and Order dated 30th Sept. 1986 of the Madhya  Pradesh  High Court in Election Petition No.  43  of 1985. R.B. Mehrotra for the Appellant. S.S. Khanduja for the Respondents. The Judgment of the Court was delivered by     S. RATNAVEL PANDIAN, J. The appellant was one of the  11 contestants  from Niwadi Legislative  Assembly  Constituency No. 34 of Madhya Pradesh Vidhan Sabha. The election was held in  the months of February/March 1985, the polling  date  of which  was on 2.3.1985. The appellant was a nominee  of  the Janta  Party.  The  first respondent was  sponsored  by  the Congress Party. As the first respondent had secured majority of votes i.e. by a margin of 5,000 votes over and above  his next rival candidate, namely the appellant herein the  first respondent  was  duly declared on 6.3.1985  as  successfully elected.     The appellant presented an election petition in the High Court  Madhya Pradesh at Jabalpur, calling in question’  the election  of  the first respondent alleging that  the  first respondent  was guilty of adopting corrupt practices  within the meaning of sub-sections (2), (3) and (3A) of Section 123 of  the  Representation of People’s Act,  1951  (hereinafter referred to as the ’Act’). It is hardly necessary to stress 583 that  the pleadings were traversed and denied by  the  first respondent  in his statement. The High Court  dismissed  the election  petition  and hence by this appeal  under  Section 116A of the Act, the appellant challenges the correctness of the decision of the High Court. Of the several issues framed upon the pleadings of the parties only issues 3, 4 and 5 are pressed  before  us as the main grounds in  support  of  the appeal  and the rest are given up. Hence for the purpose  of the  present appeal, we have to examine and deal with  these three  relevant issues alone as set out by the  High  Court. These issues are: "(3) Whether the nomination paper of Shri Pratap Singh,  son of  Mitilal, the respondent No. 11 had been  improperly  re- jected?  If  so, whether the election is liable to  be  set- aside under Section 100(1)(c) of the R.P. Act, 1951? (4) Whether the respondent No. 1 held a meeting at Niwadi on 28.2.1985 and told the electors that he would present silver shield to the electors of the polling booth recording  maxi- mum number of votes in his favour? If so, whether respondent No. 1 is guilty of corrupt practices under Section 123(1) of the Act? (5) Whether Shri Shital Prasad Sharma, S.D.O. (Revenue)  and

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Shri Dubey, S.D.O. police accompanied with respondent No.- 1 at  various places between 9.2.1985 and 2-3-1985  and  asked the electors to vote for him? Whether Shri Sharma distribut- ed  money  in village Teharka and asked voters to  vote  for respondent No. 17 If so, effect.      The  High  court which has dealt with  on  the  various aspects  of the matter has held that the appellant  has  not substantiated  all the charges levelled by him  against  the first  respondent challenging the declaration of  the  first respondent as having been duly elected.      Normally,  this Court in an appeal as the one  on  hand does not interfere on a finding of facts of this type unless there  are  prima facie good grounds to show that  the  High Court  has gravely erred resulting in serious  prejudice  to the appellant. We, therefore shall now examine whether there are any compelling reasons justifying our interference  with the findings of the High Court.      This  Court in a catena of decisions has laid down  the principles as to the nature of pleadings in election  cases, the sum and substance of which being: 584 (1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all neces- sary details and particulars as required by law vide Dharti- pakar Madan Lal Agarwal v. Rajiv Gandhi, [1987] (Supp.)  SCC 93  and  Kona  Prabhakara Rao v. M. Seshagiri  Rao  &  Anr., [1982] 1 SCC 442. (2)  The allegations in the election petition should not  be vague,  general in nature or lack of materials or  frivolous or vexatious because the Court is empowered at any stage  of the proceedings to strike down or delete pleadings which are suffering  from such vices as not raising any triable  issue vide Manphul Singh v. Surinder Singh, [1974] 1 SCR 52;  Kona Prabhakara Rao v. M. Seshagiri Rao & Anr., [1982] 1 SCC  442 and  Dhartipakar Madan Lal Agarwal v. Rajiv  Gandhi,  [1987] (Supp.) SCC 93. (3) The evidence adduced in support of the pleadings  should be  of such nature leading to an irresistible conclusion  or unimpeachable  result that the allegations made,  have  been committed rendering the election void under Section 100 vide Jumuna  Prasad  Mukhariya & Others v. Lachhi Ram  &  Others, [1955]  1 SCR 608 and Rahim Khan v. Khurshid Ahmed and  Oth- ers, [1974] 2 SCC 660. (5) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible  and positive and also should stand the test of strict and  scru- pulous  scrutiny vide Ram Sharan Yadav v.  Thakur  Muneshwar Nath Singh and Others, [1984] 4 SCC 649. (5) It is unsafe in an election case to accept oral evidence at  its face value without looking for assurances  for  some surer  circumstances or unimpeachable documents  vide  Rahim Khan v. Khurshid Ahmed & Ors., [1975] 1 SCR 643; M. Narayana Rao v. G. Venkata Reddy & Others, [1977] 1 SCR 490;  Lakshmi Raman Acharya v. Chandan Singh & Ors., [1977] 2 SCR 412  and Ramji Prasad Singh v. Ram BilasJha and Others, [1977] 1  SCC 260. 6. The onus of proof of the allegations made in the election petition  is undoubtedly on the person who assails an  elec- tion  which has been concluded vide Rahim Khan  v.  Khurshid Ahmed and Others, [1975] 1 SCR 643; Mohan Singh v.  Bhanwar- lal & Others, [1964] 5 SCR 12 and Ramji Prasad Singh v.  Ram Bilas Jha and Others, [1977] 1 SCC 260. 585     In  the  light  of the above principles,  we  shall  now examine the pleadings and the evidence adduced to  establish

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the allegations in the election petition.     Reverting  to the case, the first question  that  arises for  consideration in relation to issue No. (3)  is  whether the  nomination papers of the 11th respondent, Pratap  Singh has  been improperly rejected rendering the election of  the returned candidate (first respondent) as void.     The 11th respondent (Pratap Singh) filed his  nomination paper for contesting the election from this Niwadi constitu- ency and delivered the same to the Returning Officer by  his proposer as contemplated under Section 33(1) of the Act.  He also  made a request to the Returning Officer to  send  some authorised person thereby enabling him to make and subscribe the  oath  as  he was-  seriously  iII and could not present himself either  before the  Returning Officer or any other authorised  officer  for making  or subscribing the oath of affirmation  as  required under  Article  173(a)  of the Constitution  of  India.  The Returning Officer did not comply with the request of  Pratap Singh  and rejected his nomination on 7.2.85.  According  to the  petitioner, this rejection is improper and as such  the election is liable to be set aside as per Section  100(1)(c) of the Act.     The plea of the appellant that the nomination paper  has been improperly rejected, is countered by the respondent No. 1 in his written statement denying the plea of the appellant that he was seriously ill and stating that under Article 173 of the Constitution, it is only for the Election  Commission to authorise some person enabling the candidate to make  and subscribe  the  oath according to the form set out  for  the purpose  in the Third Schedule; that the  Returning  Officer has no authority to send any Officer to any ailing candidate enabling  him to subscribe the oath and that the  respondent No.  11 neither approached the Election Commission nor  made any such request to the Returning Officer.     It  is seen from the additional document No. 9 that  the 11th respondent sent the letter of request to the  Returning Officer to appoint some authorised officer at Newadi so that he  could subscribe his oath and along with that  letter  he had  enclosed a medical certificate given by PW-2. The  cer- tificate  is  issued  by PW-2 (Block  Medical  Officer  PHC, Newadi)  certifying  that respondent No. 11  was  under  his treatment  as an OPD patient from 6.2.83 for bronchitis  for which the 586 patient  was  advised rest atleast for three  days.  In  his evidence,  PW-2 has stated that he could not say  about  the condition  of the patient without reference to the  certifi- cate or the OPD register and he might have ’advised the 11th respondent to take rest as he usually advised the  patients. In  the  cross-examination,  he has deposed  that  the  11th respondent  had no other ailment and that he was  moving  in the  town.  On  consideration of the  oral  and  documentary evidence, the High Court rejected the plea of the  appellant holding bronchitis is not a disease which would incapacitate a  person from moving about and under  those  circumstances, there was no justification, whatsoever, for Pratap Singh not taking  oath as required under Article 173 of the  Constitu- tion.     On  carefully going through the material on  record,  we also  agree with the view taken by the High Court  that  the 11th  respondent was not suffering from any serious  ailment which  disabled  him to take the oath before  the  Returning Officer.  It is not the case of the appellant that  the  Re- turning  Officer had any enmity against the 11th  respondent or was favourably disposed towards the first respondent.

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   It is apposite to refer to the decision in Harjit  Singh Mann  v.  S. Umraon Singh and Others, [1980] 1  SCC  713  in which  this Court while dealing with the mandatory  require- ment of taking oath as contemplated under Article 173(a) has observed thus:               "It is not in controversy that it was  obliga-               tory  under clause (a) of Article 173  of  the               Constitution  for  the appellant to  make  and               subscribe, before a person authorised in  that               behalf by the Election Commission, an oath  or               affirmation according to the form set out  for               the purpose in the Third Schedule, and that he               cannot  be  qualified to be chosen to  fill  a               seat  in  the legislature of a  State without               doing  so. The importance of that  requirement               of  the  Constitution has been  reiterated  in               sub:section  (2) of Section 36 of the Act  for               ground (a) thereof provides that the Returning               Officer shall reject a nomination paper on the               ground that on the date fixed for the scrutiny               of nominations the candidate, was  inter-alia,               not qualified to be chosen to fill the seat in               the Legislative Assembly under Article 173  of               the  Constitution.  The  requirement  for  the               making and subscribing the oath or affirmation               was, therefore, clearly mandatory." As  the 11th respondent has not taken the oath,  before  the person 587 authorised in that behalf by the Election Commission for  no valid  reason, we are in full agreement with the  conclusion arrived at by the High Court that the plea of the  appellant that the nomination paper of Pratap Singh has been improper- ly rejected, is devoid of any merit.     The next contention is that the election of the returned candidate  (first respondent) is to be declared void as  the said election was tainted with corrupt practices within  the mischief  of Section 100(1)(b) of the Act. What are  corrupt practices are enumerated and defined in. Section 123 of  the Act. The  pleading on this aspect in the election petition  reads thus:               "The  respondent No. 1 had organised  a  rally               and a procession on 28.2.1985 at Niwadi.  That               procession   evitimately  culminated  into   a               public  meeting.  Shri  Ramratan   Chaturvedi,               Respondent No. 1 made a speech in that  public               meeting  and  told the electors that  he  will               present  a  silver shield to the  electors  of               that  polling  booth which  would  record  the               maximum number of votes in his favour. Several               electors from Niwadi Legislative  Constituency               were  present in that meeting. The  respondent               No.  1  thus promised a gratification  to  the               electors  to vote for him. As the promise  was               given  by the respondent No. 1 himself, he  is               guilty  of  corrupt  practice  under   Section               123(1) of the R.P. Act, 1951 and his  election               is  liable  to  be  set  aside  under  Section               100(1)(b) of the R.P. Act, 1951."     The  first  respondent though admitted  in  his  written statement that there was a procession, has denied of  having addressed any public meeting on 28.2.85 promising any grati- fication  in the form of a silver shield to the electors  of the  polling booth where a maximum number of votes would  be

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cast  in his favour. The appellant in support of his  plead- ings  besides examining himself as PW-1 examined three  more witnesses.  PW-14,  PW-17 and PW-18.  The  first  respondent examined himself with another as RWs 1 and 3 respectively.     The evidence of PW- 1 is chat he was informed by PW-  16 that  the  first respondent in a public meeting  at  Niwadi, organised in connection with the election, promised that  he would present a silver shield to the electors of the polling booth  which would record a highest number of votes  in  his favour.  It is to be noted that the appellant  who  examined himself on 29.10.85 on which date itself the  cross-examina- tion was 588 over,  further  examined himself on 8.4.86  i.e.  after  six months of the first examination and then deposed about  this alleged  promise.  Indisputably,  this evidence  is  in  the nature of hear-say. PW-16 claims to have attended the  meet- ing and ’heard the first respondent making the speech  prom- ising  the voters that the particular booth where  he  would secure  a  highest number of votes would be awarded  with  a silver shield by him. His further evidence is that those who attended  the meeting, generally talked  amongst  themselves that those who would vote for Congress party would get  that shield. This witness in his crossexamination states that  he did not ask anyone as to who would get the shield and  where it  would  be kept and that he did not  inform  anyone  else except  the  appellant.  He has further  deposed  the  first respondent  did not say that the shield would be awarded  to the workers. He admits that his brother Nathuram Ahirwar was a Janta Party leader and Member of the Legislative Assembly. Needless  to say that the appellant herein was a nominee  of the Janta Party. PW-16 nowhere in his evidence has mentioned the  date of the alleged meeting. PW- 17 falls in line  with PW-16  and states that he too attended the meeting in  which the  first respondent made the promise of  gratification  of awarding silver shield. The evidence of PW-17 that the first respondent  promised that the shield would be given only  to the person who would procure a large number of votes in  his favour  is diametrically opposite to the evidence  of  PW-16 that  the promise of presentation of shield was not for  the workers who would procure more votes but only to the partic- ular  booth where he would secure highest number  of  votes. PW17 belongs to the same caste to which PW- 16 belongs.  PW- 18 who was a sarpanch of Murara village has stated that  the first  respondent  announced in the public meeting  that  he would  award a shield to the polling stating where he  would secure  highest number of votes. Admittedly, he was  in  the Socialist  Party  and that he could not say as to  what  was meant  by silver shield nor he was told by anyone about  it. Not even a suggestion was made to the first respondent  (RW- 1) during the cross-examination that he made such a  promise in  the public meeting. PW-3, who was the Superintendent  of Pre-matric Harijan Hostel, Niwadi has testified to the  fact that there was no rally started from harijan ashram. He  has also  stoutly denied the suggestion that on 28.2.1985  there was  a  meeting within the precincts of  Harijan  Ashram  in which  the  first respondent promised the  award  of  silver shield. According to him, no such meeting was ever held. The High  Court  on analysis of the above oral  evidence,  after observing  that  the evidence adduced by  the  appellant  is ’sketchy  and  insufficient to prove the  corrupt  practice’ concluded.  "that the charge of corrupt practice under  Sec- tion 123(1)(A) of the Act is not proved." 589 The  learned  counsel appearing on behalf of  the  appellant

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herein  assails the conclusion of the High Court  contending that  the  High Court has not approached and  evaluated  the evidence  on PWs 1, 16 to 18 in the proper  perspective  and this observations that the evidence is ’sketchy and insuffi- cient  to prove the corrupt practices’ is unjustifiable  and bereft of sound reasoning, which submissions are opposed  by the counsel for the first respondent.     Before  adverting to the contesting contentions  of  the parties, we shall examine the legal position with regard  to the  nature of the proceedings and the quality  of  evidence required in proof of allegations of corrupt practices.     ’Bribery’ which is one of the corrupt practices  enumer- ated under Section 123 of the Act is defined in  sub-section (1)  of that Section. For the purpose of this case,  we  re- produce the relevant part of that Section as the allegations contained  in  the  election petition that  the  promise  of gratification  was a silver shield to the voters in  general of  a particular booth where the appellant would secure  the highest number of votes in his favour:               (1) ’Bribery’, that is to say--               (A) any gift, offer or promise by a  candidate               or  his agent or by any other person with  the               consent  of a candidate or his election  agent               of any gratification, to any person  whomsoev-               er, with the object directly or indirectly  of               inducing--               (b) an elector to vote or refrain from  voting               at an election, or as a reward to--               (ii) an elector for having voted or  refrained               from voting.     The word ’gratification’ is not defined in the Act,  but the Explanation to sub-section (1) of Section 123  furnishes an  indication  as to what amounts to gratification  in  the view  of  the  Parliament. In Mohan Singh  v.  Bhanwarlal  & Others, [1964] 5 SCR 12 the Constitution Bench of this Court after  making  a reference to this Explanation  observed  as follows: 590               "The   Explanation  extends   the   expression               ’gratification’ to include all forms of enter-               tainment  and  all  forms  of  employment  for               reward  but not payment of bona fide  expendi-               ture  incurred at or for the purpose of  elec-               tion  if duly entered in the account of  elec-               tion  expenses. Gratification in its  ordinary               connotation means satisfaction. In the context               in which the expression is used and its delim-               itation  by  the  Explanation,  it  must  mean               something  valuable  which  is  calculated  to               satisfy  a  person’s aim,  object  or  desire,               whether  or  not that thing  is  estimable  in               terms  of money; but a mere offer to  help  in               securing  employment to a person with a  named               or  unnamed employer would not amount to  such               gratification."     In  lqbal Singh v. S. Gurdas Singh & Ors., [1976] 1  SCR 884  Alagiriswa  J.  speaking for the Bench  taking  aid  of Sections  161, 17 I(B) and 17 i(E) of the Indian Penal  Code stated thus:               "It  would be noticed that the Explanation  to               Section  123(1) of the Representation  of  the               People Act and the Explanation to Section  161               of the Indian Penal Code relating to  gratifi-               cation are similar. In addition, the Represen-               tation  of the People Act refers to all  forms

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             of  entertainment and all forms of  employment               for  reward.  The  employment  for  reward  is               covered  by illustration (a) to S. 161 of  the               Indian  Penal  Code. The words "all  forms  of               entertainment"  in the Explanation to  Section               123(1) of the Representation of the People Act               apparently refer to offence of treating  found               in  S. 171--E of the Indian Penal  Code.  When               Parliament  enacted  the  provision  regarding               bribery  in the Representation of  the  People               Act, it should have had before it the compara-               ble  provision in the Penal Code. It is to  be               noticed  that the giving of any  gratification               with  the object of inducing the  receiver  or               any  other person to vote is an offence  while               acceptance of gratification by a person either               for  himself  or for any other person  or  for               inducing  any other person to vote is  an  of-               fence. In other words giving is an offence  if               paid  to  the  voter or  such  giving  induces               another  person  to vote. It is not  giving  a               gratification  in  order that  he  may  induce               another  person  to vote that  is  an  offence               whereas receipt of a gratification in order to               induce another person to vote is an offence." 591     According  to Section 123(1)(A)(b)(ii) of the  Act,  any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent  of any gratification, to any person whomsoever,  with the object, directly or indirectly of inducing an elector to vote  or  refrain from voting at an election  is  a  corrupt practice. See Harjit Singh Mann v.S. Umrao Singh and Others, [1980] 2 SCR 501.     It  is an accepted principle that an  election  petition where  corrupt  practices are imputed must  be  regarded  as proceedings of a quasi-criminal nature wherein strict  proof is  necessary.  Since, a charge of  corrupt  practices,  the consequence  of which is not only to render the election  of the returned candidate void, but in some cases to impose him a  disqualification must be proved on appraisal of the  evi- dence adduced by both the parties particularly by the  elec- tion  petitioner  who  assails the election  of  a  returned candidate.  This principle has been reiterated and  approved in  a  series of decisions. See Manphul  Singh  v.  Surinder Singh, [1974] 1 SCR 52; Rahim Khan v. Khurshid Ahmed, [1974] 2  SCC  660; M. Narayana Rao v. G. Venkata Reddy  &  Others, [1977] 1 SCR 490; Ram Sharan Yadav v. Thankur Muneshwar Nath Singh & Others, [1984] 4 SCC 649; Ramji Prasad Singh v.  Ram Bilas  Jha  &  Others, [1977] 1 SCC 260  and  Lalroukung  v. Haokholal Thangjom & Anr., ELR Vol 41 Page 35.     As  pointed out in M. Narayana Rao v. G. Venkata  Reddy, [1977]  1 SCR 490; this Court ordinarily and generally  does not, as it ought not to, interfere with the findings of fact recorded  by  the  High Court unless  there  are  compelling reasons for the same, especially findings recorded on appre- ciation of oral evidence. Bearing in mind the above proposi- tion  of law, we shall scrutinise the evidence available  on record  and find out whether the conclusions arrived  at  by the High Court suffers from any infirmity warranting  inter- ference of the said conclusions.     As  we have pointed out in the earlier paragraph of  the judgment,  PW 1 (appellant) only after a period of 6  months of his first examination in the Court came forward with this allegation  that  the  first respondent made  a  promise  of

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gratification. Indisputably his evidence is in the nature of hear-say. PW 16 whose brother was a Janata Party leader  and an  M.L.A. does not mention even the date of the meeting  in which the first respondent is said to have made the promise. The evidence of PW 16 and PW 17 is inconsistent and  contra- dictory as we have pointed out supra. There is no consistent evidence as to the 592 nature of the statement said to have been made by the  first respondent.  Whilst  PW 16 and PW 18 state  that  the  first respondent  promised the award of the silver shield  to  the particular  polling booth where he would secure the  highest number  of votes, PW 17 states that the promise was only  to the person who would procure a large number of votes. There- fore, in view of this inconsistent, unsatisfactory and vague evidence,  no conclusion could be arrived at that the  first respondent  made  the promise to any  particular  person  or persons who would secure the highest number of votes in  his favour.  There  is  absolutely no evidence  that  the  first respondent made any promise of gratification to any  elector or electors who would vote in his favour. Similarly there is no  evidence  that  voters were influenced  by  the  alleged promise  of gratification or the first  respondent  obtained any promise from the voters in return as a condition for the shield  alleged to have been presented. Thus the element  of ’bargaining’  is  completely  absent in  the  present  case. Needless  to  say that it is necessary for  the  purpose  of proving  the corrupt practice of bribery to  establish  that there was an element of ’bargaining’. See Harjit Singh  Mann v.  S.  Umrao Singh and Others, [1980] 2 SCR  501.  In  this connection,  reference  can be made to a  decision  of  this Court  in lqbal Singh v. Gurdas Singh & Ors., [1976]  1  SCR 884. In that case the election of the returned candidate was challenged by the appellant therein on various grounds,  one of which being that the returned candidate or his agent held out an inducement to get gun licences issued for people  who would  vote for the returned candidate. The  Court  rejected the plea on the ground that there was no evidence  regarding bargaining of votes by promise of gun licences and there was no evidence of obtaining promise of votes from the voters in return.     For the reasons above-mentioned, we come to the  conclu- sion that the appellant has not discharged the onus of proof cast upon him by adducing cogent, reliable and  satisfactory evidence,  but on the other hand he has miserably failed  to establish the charge of corruption. Now, we shall pass on to the last contention.     The  charge   under issue No. (5) is  that  Shri  Shital Prasad  Sharma,  Sub-Divisional Officer (Revenue)  and  Shri Dubey,  Sub  Divisional Officer, (Police),  accompanied  the first respondent to various places between 9.2.1985 and 2.3. 1985  and  requested the electors to vote in favour  of  the first  respondent and that Shri Sharma distributed money  in the  village-Teharka and asked the voters to vote in  favour of the first respondent. 593     It  is  found from the judgment of the High  Court  that this issue was earlier declared vague and it was  thereafter the  first  part of the issue which was re-cast as  per  the particulars  substituted in the amended pleadings  in  para- graph  6(a)  of  the election  petition.  These  allegations relate  to the charge of obtaining or procuring the  assist- ance of the Government servants in service for the  further- ance of the prospects of the election of the first  respond- ent  failing  within the mischief of Section 123(7)  of  the

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Act.  These  allegations are stoutly opposed  by  the  first respondent  inter-alia contending that "these pleadings  are in violation of the provisions contained in Section 83(b) of the Act as no details of the date and place of commission of each such practice have been mentioned and in absence there- of,  it is not possible for this respondent  to  effectively rebute  such  vague allegations", and the  allegations  that Shri  Sharma  distributed money to the voters are  also  too vague to be rebutted properly as the names of the voters  to whom  money is said to have been paid and also lack of  par- ticulars  with  regard to the date, time and the  amount  of money allegedly distributed.     In  support  of  the above  allegations,  the  appellant examined  himself and six other witnesses of PWs 1, 11,  12, 14,  15,  16 and 18. Barring this oral  evidence,  there  is absolutely  no contemporaneous documentary evidence.  Though the  appellant  filed the application in August  1985  under Section 86(5) of the Act praying for amendment of his  elec- tion petition, he has not testified to the amended pleadings in his examination held on 9.10.1985, but tendered  evidence only  on  8.4.1986 that is after six months of  his  earlier examination. He has deposed that on 24.2.85 he saw the first respondent and Dubey, SDO (Police) going together in a  jeep towards Orchha and that PW 11, Nathu Ram Naik told him  that Dubey had asked him to vote in favour of the first  respond- ent.  He  continued his evidence stating that he  saw  Dubey walking along with the first respondent in a rally organised by  the Congress party and headed by the  first  respondent, that PWs 12 and 13 informed him on 28.2.1985 at Niwadi  that when  these  two  witnesses refused to vote  for  the  first respondent at his request, the first respondent asked  Dubey to persuade them to vote for him, that thereupon Dubey asked PWs  12  and 13 to vote for the first respondent  lest  they would not be permitted to sit in a temple-presumably in  the village. He further deposed that on 24.2.1985 when he visit- ed  Prithvipur, he saw rally headed by the first  respondent accompanied  by Dubey and Sharma. Later on, Shri  Chaturbhuj Naik  informed that both Dubey and Sharma took the  resigna- tions of Naik and others from Janata Party. According to  PW 11, the SDO (police) by name Dvivedi 594 asked  him as well PWs 14 and 15 to work for the  first  re- spondent and also threatened them that they would be falsely implicated  in  criminal cases if they failed to do  so  and that  in  consequence of it he and PW 15 resigned  from  the Janata  Party and joined Congress party though  they  subse- quently  worked  for the Janata Party candidate.  When  this witness  was confronted whether he had any documentary  evi- dence in support of his version, he stated that his  joining the  Congress Party appeared in the local newspaper  but  he was not having a copy of the same. The evidence of PW 14  is that the SDO (police), Chaturvedi and SDO (Civil) whose name he does not know, were leading the rally and those two  were sitting  on  the dias of a public meeting organised  by  the Congress  Party and that both them threatened him and PW  11 to  work for the first respondent. PW 15 also speaks to  the fact that SDO (Police), Chaturvedi called him as well PW  11 and  some others and threatened all of them to  resign  from the  Janata  Party and work for the Congress and  that  when they refused to do so, they were all threatened by these two government  officials,  stating that they would  be  falsely implicated  in  criminal  cases and that they  out  of  fear resigned  from the Janata Party and worked for the  Congress Party.     Be  it  noted, whilst the name of the  SDO  (police)  is

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mentioned  by  PW-1 as ’Dubey’ as mentioned in  the  amended pleading as well in issue No. (5), PWs 14 and 15 mention the name of the said Police Officer as ’Chaturvedi’. PW-11 gives the name of the Officer as ’Dvivedi’. The police officer, RW 6  swears his name as ’Dvivedi’. Therefore, it follows  that the insertion of the name as ’Dubey’ in the amended pleading is  incorrect.  Thus, we find  material  and  irreconcilable contradictions not only amongst the evidence of PWs but also between the pleading and the evidence even in respect of the name of the SDO (police) which create a legitimate suspicion as to whether Dubey was in any way concerned with the  elec- tion. PW-12 does not mention the name of the police  officer who threatened him to vote for the Congress as well the date of  the  meeting. It is evidence of PW 16 that  Sharma,  SDO (Civil)  asked  all those persons attending the  meeting  in favour  of the first respondent so that they could  get  the silver shield. PW-18 who admits to have been a member of the Socialist Party has given the evidence falling in line  with that of PW- 16.     On consideration of the evidence of the above witnesses, the  High Court has held "In view of this statement  of  the election  petitioner, it must be held that there is  no  one like Shri Dubey, SDO (police) and, therefore, there would be no question of respondent No. 1 procuring assistance of Shri Dubey. The distinction between Shri 595 Dubey  and  Shri Dvivedi is rather well-known and  even  the election petitioner is aware of it. Under the circumstances, there is no justification why proper plea in that behalf was not taken". If we have to accept the evidence of PW- 1  that the  SDO (police) Dubey assisted the first respondent,  then the evidence of the other witnesses giving a different  name either  as ’Chaturvedi’ or ’Dvivedi’ has to be rejected.  On the  contrary, if the evidence of the other witnesses is  to be  accepted then their evidence does not support the  issue No. (5) that one Dubey assisted the first respondent in  his election.  The learned counsel appearing for  the  appellant pleaded that no importance should be attached to the  varia- tion  regarding  the name of the SDO (police)  as  the  fact remains that SDO (police) had assisted the first  respondent and  procured votes in his favour. We are unable to see  any force  in  this submission. Next coming to  the  allegations made  against  Sharma,  SDO (Civil), PW 1  does  not  allege anything  against him and as such on the basis of  the  evi- dence of PW 1, it cannot be said by any stretch of  imagina- tion  that Sharma had assisted and procured votes in  favour of  the  first  respondent within the  mischief  of  Section 123(7)  of  the  Act. The evidence of  the  other  witnesses relating  to  the  alleged participation of  Sharma  in  the election does not inspire confidence. No acceptable evidence is available that Sharma distributed money.     In opposition to the evidence, let in on the side of the appellant,  RW  6 (SDO police by name Dvivedi)  has  deposed that  he was assigned duty at Dabra on 24.2.1985 in  connec- tion  with the visit of the Prime Minister and that  he  was not  in the Headquarters on that date and the  distance  be- tween  Niwadi  and Dabra is about 80 kms. RW  4(SDO  (Civil) Sharma)  has denied all the allegations made against him  by the  appellant. Much argument was advanced on the  basis  of Exh.  P-6, a photograph showing that in a meeting  addressed by  Chaturvedi this witness was also present, but RW  4  ex- plains  that it was not a meeting of the Congress Party  but was a public meeting held to facilitate first respondent  on his  return from foreign trip. RW 1 in his evidence  totally denied all the allegations covered by issue No. (5).

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   On  a  scrupulous  examination of the  evidence  of  the witnesses  examined on the side of the appellant, we  arrive at an irresistible conclusion that the appellant has misera- bly failed to establish the allegations of corrupt practices within the mischief of Section 123(7) of the Act relating to issue  No. (5). Even assuming that RWs 4 and 6 had  accompa- nied  the rally, as pointed out by the High Court, no  ines- capable inference can be drawn that these two officials were assisting the first respondent in procuring votes and proba- bly they might have ac- 596 companied the rally for maintaining the law and order.     Further,  when the learned Judge of the High Court,  who has very carefully marshalled the evidence, has not found it possible to candidly accept the evidence of these  witnesses for the reasons assigned in the judgment, we find no  reason to  take  a contrary view. Moreover, we too  after  a  close scrutiny of the evidence and the pleadings especially relat- ing to issue No. (5), are in agreement with the views of the High  Court and are fully satisfied that the  appellant  has miserably  failed in substantiating his charges  covered  by issue No. 3 to 5 which are alone pressed before us as  indi- cated in the earlier part of this judgment and the  judgment under  appeal does not suffer from any legal  infirmity  re- sulting in serious prejudice to the appellant.     In the result, the judgment of the High Court is  upheld and the appeal is dismissed with costs. Y.  Lal                                        Appeal   dis- missed. ? 597