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PETITIONER: LAXMINARAYAN AND ANOTHER

       Vs.

RESPONDENT: RETURNING OFFICER AND OTHERS

DATE OF JUDGMENT28/09/1973

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. REDDY, P. JAGANMOHAN

CITATION:  1974 AIR   66            1974 SCR  (1) 822  1974 SCC  (3) 425  CITATOR INFO :  R          1974 SC 405  (29)  E          1975 SC 290  (3)  R          1975 SC1788  (25)  RF         1976 SC1866  (39)  R          1985 SC  89  (13)

ACT: Representation  of  the People Act (43 of  1951).   Ss.  98, 116A,  119,  123(4)Corrupt  practice--Scope  of  review   by appellate  Court--’Incurred’ in s. 119, meaning  of--Conduct of Election Rules, 1961, r. 63--Scope of. Evidence  Act (1 of 1872) Ss. 98 and 159 to  161--Record  of speeches in shorthand and long hand--Admissibility.    ’Bhrashtachar’, meaning of.

HEADNOTE: JD  and RS were two of the five candidates for  election  to the Lok Sabha.  JD was the returned candidate and RS  polled the next highest number of votes.  After the counting of the votes,  RS applied for a recount under r. 63 of the  Conduct of  Election Rules, 1961.  In the petition he  alleged  that the  difference  in  votes obtained by JD  and  himself  was marginal,  that more than 7000 votes were declared  invalid; that  votes have not only been declared as invalid but  also that  "admitted disputed votes" were not  properly  counted, and  that  the number of votes declared  invalid  materially affected  the  result  of the  election.   He  also  alleged certain irregularities.  The Returning Officer directed that all  the  votes cast in favour of JD and RS as welt  as  the rejected  votes  should be recounted.  There  was  a  slight discrepancy  in the number of votes obtained by each of  the two candidates, and in the number of rejected votes, in  the recount,  but  there  was no effect on  the  result  of  the election. In  a petition challenging the election of JD the  following grounds  were  urged, (1) that the election  should  be  set aside  under s. 100(l) (iii) and (iv) of the  Representation of  the People Act, 1951, because, the votes have  not  been properly  counted  as  valid  or invalid  and  there  was  a violation of rule 63; and (2) that JD was guility of corrupt practice under s. 123(4) of the Act in that statements  were made and documents published, by person, with the consent of

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JD attacking the personal character of RS; that his election agent  distributed  a  weekly containing an  attack  on  the personal  character  of RS; and that JD  himself  made  such statements  and published such documents.  The petition  was dismissed by the High Court. Dismissing  the appeal to this Court (except in  respect  of costs), HELD (1) The plea in the election petition that valid  votes have  been  counted as invalid and invalid  votes  as  valid would  not include the plea that any valid votes of  RS  and other  candidates  have  been  counted  as  valid  for   JD. Therefore,  it  was not necessary to recount  the  votes  of candidates  other  than  JD  and  RS.   On  the  allegations contained  in  the application to the Returning  Officer  he could  not have ordered a recount of all the votes  and  his order directing recount was not in contravention of rule 68. The discrepancies in the number of votes was  satisfactorily explained  and  there  was no  acceptable  evidence  of  the alleged irregularities. [826 C; 827 A-B] (2)(i)  Section 116A of the Act provides for appeal to  this Court from an order of the High Court dismissing an election petition and an appeal lies on issues of both of law and  of facts.  Section 116C applies the Code of Civil Procedure  as nearly as possible in the determination of the appeal.   The power  of  the  appellate  courts  is  very  wide.  it   can reappraise  the  evidence  and  reverse  the  trial  court’s findings  of fact, but the practice of the appellate  court, however,  has uniformly been to give the greatest  assurance to  the  assessment of the evidence made by  the  judge  who hears  the witnesses and watches their demeanour and  judges of  their credibility in the first instance.  The  appellate court  may  interfere with a finding of fact  if  the  trial court  is shown to have overlooked any material  feature  in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion 823 of  the  trial court.  This limitation on the power  of  the appellate  court  in a first appeal from decrees  will  also apply  to  an election appeal under s. 116A.  In  an  appeal burden  is on the appellant to prove how the judgment  under appeal  is  wrong.  To establish this he must  do  something more  than merely ask for reassessment of the evidence.   He must  show wherein the assessment had gone wrong.   This  is especially  so  when the alleged corrupt practice  is  of  a quasi  criminal  nature;  and this Court would  be  slow  to disagree  with  the finding of the High Court  that  such  a charge was not established. [839 G-840 E] Saraveeraswami  v.  Talluri,  A.I.R.  1949  P.C.  32,  Sarju Pershad  v.  Raja Jwalesliwari Pratap Narain  Singh,  [1950] S.C.R.  781  at p. 784 per Mukherjea J., Narbada  Prasad  v. Chhagaul,  [1969]  1 S.C.R. 499 at p.  504  by  Hidayatullah C.J., D. P. Misra v. Kam Narain Sharma, [1971] 3 S.C.R.  257 at p. 261 per Shah.  J., Virendra Kumar Saklecha v. Jagjiwan [1973] 1 S.C.C. 826, referred to. (ii)  In  the  present case, the High  Court  was  right  in holding  that there is, no acceptable evidence, (a)  of  any consent  given  by  JD to any one for  them  making  of  the various statements or the publishing of documents containing statements  against the personal character of RS and (b)  of the  distribution  of  the  weekly,  either  by  JD  or  his followers or agents. [834 B-C; 849 F; 850 F. H] (iii) As regards the statements attributed to JD himself the evidence consists of the oral evidence of some witnesses who claimed  to have heard the statements being made at  various

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meetings, and the oral evidence of two police witnesses  who took  down his speeches in shorthand and one speech in  long hand.   While  assessing  the probative value  of  the  oral evidence of the police witnesses it is necessary to remember that  the report of a shorthand writer is strictly  speaking not substantive evidence as such, and it can only be used as a part of the oral evidence.  Three conditions are, however, necessary for admitting such statements in evidence,,  under s.  159 to 161 of the Evidence Act; (a) the notes must  have been  taken down by the witnesses as and when  the  speeches were being delivered or so soon afterwards that the speeches were  fresh in their memory, (b) the witnesses must be  sure that the speeches have been correctly recorded by them,  and (c)  the  notes must be produced and shown  to  the  adverse party  if he requires them.  In the present case  the  first condition may be taken to be satisfied.  The third condition was  also  satisfied.   It could not  be  said  that  merely because  the notes of speeches were in shorthand they  would not be admissible in evidence and that they should have been recorded  in  a language which could be  understood  by  the adverse party.  According to section 98 of the Evidence  Act evidence  may be given to show the meaning of  illegible  or not  commonly  intelligible characters or  of  abbreviations etc.   Notes  in shorthand may be said to in  ’not  commonly intelligible characters’ and ’abbreviations. [841 A-842 D] However,  the record of the speeches, made by one  of  these witnesses,  is not admissible in the present  case,  because the  second condition is not satisfied.  The evidence  shows that  there  are various infirmities and that  the  extracts were  not  a correct recording of the speeches made  by  JD. [842 F-G] Kanti Prasad layshanker Yagnika.  Purshottamdas  Ranchhoddas Patel  [1969] 3 S.C.R. 400 and P. C. Purshothama Reddiar  v. S. Perumal [1972] 2 S.C.R. 646, distinguished. (iv) As  regards the other police witness according  to  his notes JD is alleged to have   made the following statements. (a) That RS was "Bhrasthachar," (b) This is  a  war  between truth and power.  We have to see whether truth wins or power wins.   We  have to see whether truth wins or  power  loses, whether  falsehood  wins  or truth wins.   We  have  to  see whether  corruption wins or purity, wins’ and (c) ’You  know his (RS) achievements and capacity.  I do net wish to  speak anything about him.’ The word "Bhrashtachar" means a man of fallen conduct.   The High Court, however, translated it to mean ’Corruption’, but in the context it is susceptible of the interpretation of  a person who has fallen from orthodox conduct.  It is- 824 one  of those flourishes or hyperboles which are the  common stock-in-trade of election speakers of exploit the  emotions of  the  audience and to augment  their  popular  support.As regards the other statements they do not refer to statements of fact in relation to the personal character or conduct  of RS.   There fore, the speeches attributed to JD do not  make out  any  corrupt  practice.   The  evidence  of  the  other witnesses was rightly rejected by the High Court. [846 F; 847 D-E] (v)  The application for production of the summaries of  the notes  of the speeches said to have been sent by the  police witnesses  to  the  government  for  corroborating  the  two witnesses should not be allowed, because apart from the fact that an elaborate inquiry will have to be made by  examining a number of police witnesses and admitting a large number of documents for finding out whether summaries or full  reports were  sent to the government, in view of the  findings  that

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the record by one of the writings is subject to  infirmities and  that the statements in the record of the other  witness did  not amount to corrupt practice, the production of  such records will not advance the case of the appellants. [847 F- 848 C] (vi)  The  contention of the appellants that  those  records would establish other instances of corrupt practice  against JD cannot be entertained, because, such other instances were not  pleaded in the election petition and JD had  no  oppor- tunity to deny them or disprove them. [848 C-D] (3)  While  dismissing the petition the High  Court  ordered that  JD would be entitled to his costs including  costs  at the  scheduled  rate of Rs. 400/- per day for  52  hearings, from the petitioners.  The sum of Rs. 400/- per day is pres- cribed  by the Bombay High Court Rules for fees of  counsel. Under  s. 119 of the Representation of the People Act  which deals  with costs, "Costs shall be in the discretion of  the High  Court  provided that whether a petition  is  dismissed under clause (a) of section 98 the returned candidate  shall be  entitled to the costs incurred by him in contesting  the petition and accordingly the High Court shall make an  order for  costs in favour of the returned candidate".  The  peti- tion  in  the present case was dismissed by the  High  Court under  s.  98(a).  But the word  ’incurred’  means  actually spent.   There is no proof of payment of any fee to  counsel by JD.  Therefore, he was not entitled to the amount of  Rs. 400/per diem awarded by the High Court. [851 F-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1014  of 1972. Appeal under section 116 of the Representation of People Act 1951,  from the Judgment and Order dated 21st January,  1972 of  the  Bombay  High  Court (Nagpur  Bench)  at  Nagpur  in Election Petition No. 3 of 1971. M. N. Phadke, V. G. Palshikar, D. K. De and H. E. Devani and A.  G.    Ratnaparkhi, for the appellants. A.  K. Sen, S. N. Sirpurkar, G. L. Sanghi, D. N. Mishra,  0. C. Mathur, J. B. Dadachanji, for respondent no. 2. V. R. Manohar, B. K. De, H. C. Devani, A. C. Ratnaparkhi and S. Balakrishnan and N. M. Ghatate, for respondent No. 3. H.  R. Khanna and S. P. Nayar, for respondents Nos.   I  and 21. The Judgment of the Court was delivered by DWIVEDI,  J.  The appellants, Laxminaray  an  and  Marotrao, filed  an  election  petition challenging  the  election  of Jambuwantrao   Dhote  to  the  Lok  Sabha  from  21   Nagpur Parliamentary  Constituency.  There were five candidates  in the run.  Dhote was one.  He was 825 elected.   The, poll was on April 18, 1971.  Dhote  obtained 1,25,665  votes.   The next highest votes were  obtained  by Rikhabchand Sharma.  He polled 1,23,615 votes. The election was challenged on diverse grounds.  There  were as many as 13 issues.  The record of evidence is voluminous. The judgment of the High Court runs to 244 pages.  The  High Court decided all the issues against the appellants.   Hence this appeal. Sri Phadke, counsel for the appellants, has not covered  the whole ground again; he has confined his arguments, to issues 2, 4, 5, 8 and 9. Thus the scope of inquiry is much narrower in the appeal. Issue No. 2 :

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Section  100 of the Representation of the People  Act,  1951 (hereinafter called the Act) specifies the grounds on  which the  election  of  a returned candidate may  be  set  aside. According  to s. 100(l) (d) (iii), the election may  be  set aside  if  the  result  of  the  election  of  the  returned candidate  has  been  materially affected  by  the  improper reception, refusal or rejection of any vote or the reception of any vote which is void.  Section 100(l) (d) (iv) provides that  the  election may be set aside if the  result  of  the election  of  the  returned candidate  has  been  materially affected  by any non-compliance with the provisions  of  the Constitution  or of the Act or of any Rules or  Orders  made under the Act. Paragraphs  14,  15 and 16 of the election  petition  allege facts in respect of this issue.  According to paragraph  14, votes  were  counted  in the YMCA Hall on  April  19,  1971. There  were  no  proper arrangements for  admission  of  the candidates and their counting agents at the count.  A  large number  of people had entered into the Hall.   The  counting was not complete on the said date.  There was some  counting on  the  day  following, that is, on April  20,  1971.   The counting  when completed revealed that 3,46,093  votes  were polled  in all.  J. B. Dhote received 1,25,665 votes; R.  C. Sharma, 1 , 23,615, 7425 votes were rejected votes. Paragraph  15 states that at the end of the counting  R.  C. Sharma made an application to the Returning Officer claiming recount  of votes.  The Returning Officer directed that  all votes cast in favour of J. B. Dhote and R. C. Sharma as well as  all the rejected votes should be recounted.  He did  not order  that  the votes of other candidates  also  should  be recounted.   Paragraph 16 states that after the  recount  it was  declared that 3,46,079 votes were polled in  all.   The total of J. B. Dhote came down to 1,25,550; of R. C.  Sharma to 1,23,493.  The number of rejected votes went up to 7,597. It is further alleged that the recount showed that 14  votes were missing, that many rejected votes were counted as valid and that there is a difference in the aggregate of different candidates. Paragraph  15 then sums up : "It is, therefore,  clear  that the  votes  have  not  been properly  counted  as  valid  or invalid, without a proper 826 scrutiny  required  under  the  law.   This  has  very  much materially affected the result of the election.  In fact the recount  should have been for the entire votes cast  in  the election." Paragraph  16 states that it was necessary to count all  the votes  as  there  was no proper  recount  by  the  Returning Officer.  The recount itself shows that many rejected  votes were  counted as valid and many valid votes  were  rejected. The  tendered  votes  were not counted  and  14  votes  were missing. The plea in paragraph 16 that valid votes have been  counted as invalid and invalid votes as valid would not include  the plea  that  many  valid  votes of R.  C.  Sharma  and  other candidates  have  been counted as valid for Dhote.   It  was accordingly not necessary to recount the votes of candidates other  than  Dhote  and R. C. Sharma.  The  recount  of  the rejected votes and of the votes of these two candidates  was enough.   The  appellants gave an application  in  the  High Court for inspection of all the votes.  This application was rejected by an order on November 15, 1971.  For the  reasons already discussed the application was rightly rejected. Rule 63 of the Conduct of Election Rules, 1961 provides  for the  recount  of votes.  According to sub-rule  (2)  thereof

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recount of all votes or any part may be claimed on behalf of any candidate.  An application should be made on his  behalf to the Returning Officer.  The application should state  the ground  on  which  the recount  is  claimed.  The  Returning Officer  shall  decide the question of recount and  make  an order  either accepting or rejecting the  application.   The order  should  set  forth the reasons.   He  may  allow  the application  in  whole  or in  part.   The  application  for recount  made  by R. C. Sharma is Ex. P. 21 Paragraph  I  of the  application  states  that more  than  7000  votes  were declared invalid.  They were neither shown to him nor to his agents.  Lighting arrangements were not satisfactory so that marks could not be properly read at the counting.  Paragraph 6 states that the difference in votes obtained by Dhote  and R.  C.  Sharma is marginal.  The number  of  votes  declared invalid has materially affected the result of the  election. Many  unauthorised  persons entered the hall and  they  were interfering  with  the  process of  counting.   Paragraph  8 states that the votes declared invalid were not so  declared in  accordance  with the  prescribed  procedure.   "Admitted disputed   votes"  were  not  admitted  according   to   the prescribed procedure.  So the prayer for recounting of votes was  made.  The main charge is that the votes have not  only been  declared as invalid but also that  "admitted  disputed votes"  were  not properly counted.  The  Returning  Officer allowed partial recounting.  He directed that all votes cast in favour of Dhote and R. C. Sharma and all the rejected and invalid votes should be recounted.  The reason given by  him is that the difference of votes cast in favour of Dhote  and R.  C.  Sharma is only 2049.  He says that  "the  margin  is small  and  in  the interest of justice I agree  to  have  a recount  of votes" as directed.  Accordingly, the  votes  of Dhote and R. C. Sharma were recounted as also invalid votes. The recounting had no effect on the result of election. 827 On the allegation contained in the application the Returning Officer could not have ordered recount of all the votes.  In our  view,  the  order of the  Returning  Officer  directing recount was not in contravention of Rule 63.  The appellants have  examined several witnesses in support of  the  alleged irregularities,  but that evidence has not been accepted  by the  High Court.  Nothing has been shown to us for taking  a different view.  The Returning Officer has been examined  by the  appellants.  He has stated that the count  and  recount have been done in accordance with the prescribed  procedure. He  has  also explained the apparently missing 14  votes  on recount.  According to the Returning Officer the discrepancy of  14  votes might be due to the mistake  in  counting  the votes  and  making  them into bundles of 50  each.   In  the recount  they recounted only some of those bundles  and  not all. For  the reasons discussed above, we accept the  finding  of the High Court on this issue. Issue No. 4 : Three  or four days prior to poll the Nagpur  City  District Congress  Committee published an appeal in the name of  Smt. Indira  Gandhi  to  the  voters  of  the  constituency   for supporting  Rikhabchand  Sharma.  On the left  top  of  this printed appeal there is a photograph of Smt.  Indira Gandhi; on  the right top there is the picture of a cow and a  calf, the  symbol of the Congress candidate.  On the  left  bottom there  is printed "New Delhi, 8 April, 1971;" on  the  right bottom  appears  the signature of Smt.  Indira  Gandhi.   On April 16, 1971 one Satya Narain Sharma issued a statement to the press in respect of this appeal.  The next day, that is,

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April 17, Tarun Bharat, a newspaper, published a summary  of his statement.  The summary states that Satya Narain  Sharma has expressed "doubt about the genuineness of the letter  by the Prime Minister calling upon the voters to vote for.  Mr. Rikhabchand Sharma." The summary further states that  "there is  no  seal  of the Prime Minister’s  Secretariat  on  this letter,  nor  it  is  mentioned  to  whom  this  letter   is addressed."  Satya  Narain Sharma is also  stated  to  have, expressed  doubt  that the Prime Minister, who  has  avoided even to mention the name of a candidate, would have issued a letter in support of him.  The election petition states that Satya Narain Sharma was an agent of Dhote and that he issued the statement with the consent of Dhote.  The statement  was false  and  was  believed  to be false  by  Dhote.   It  was reasonably  calculated  to prejudice the  prospects  of  the election of R. C. Sharma.  Thus a corrupt practice under  s. 123  (4) of the Act has been committed.  The High Court  has held  that no such corrupt practice was committed by  Dhote. It  has  held  that  Satya Narain  Sharma  did  not  make  a statement  of  fact.  He has expressed an opinion.   It  has also  held that the statement was not false and that it  did not  relate  to the personal character or conduct of  R.  C. Sharma  or to his candidature.  It has also held that  Satya Narain  Sharma did not make this statement with the  consent of Dhote.  We shall first consider whether the statement was issued by Satya Narain Sharma with the consent of Dhote. 828 Satya  Narain Sharma was examined by Dhote.  He  has  denied that he made the statement with the consent of Dhote.  Dhote has  stated  that he had not given his consent to  any  such statement.  The High Court has believed Dhote.  Nothing  has been shown to us to take a different view.  It is true  that according  to  the evidence on record  Satya  Narain  Sharma seems to have addressed several meetings in support of Dhote and that in some of those meetings Dhote had also  delivered speeches.   But this circumstance alone would not prove  the consent of Dhote.  As we agree with the High Court that  the statement  is not proved to have been made with the  consent of Dhote, it is not necessary for us to record a finding  on the  other  aspect of issue No. 4. We agree  with  the  High Court  that  the appellants have failed  to  establish  this particular corrupt practice. Issue No. 5 : In  his return of election expenses Dhote is shown  to  have spent  Rs.  648/-  on the publication of  a  pamphlet.   The nature of the pamphlet does not seem to have been  disclosed in the return.  The appellants have alleged in the  election petition  that document C attached to the petition  is  that pamphlet.   Dhote  has  emphatically  denied  that  it   was document  C.  According  to  him, it  was  document  2R  20. Document  C  opens with : "I am contesting  this  Lok  Sabha election  ........against a corrupt candidate  of  Congress. The  appellants say that this is a false statement  relating to the personal character of Rikhabchand Sharma. 2R 20 is an innocuous  document.  It was printed by the Narkesari  Press and  it  bears  the  print line of  the  press.   The  close question  is  whether  document  C or  document  2R  20  was published  by  Dhote.  To prove their case,  the  appellants have  examined  one witness Prabhakar Sakhardande.   He  was employed on the relevant date as a printer in the  Narkesari Press.  He says that document C was printed in the Narkesari Press  on Sunday, April 11, 1971.  According to him,  it  is printed in mono type.  He also says that only the  Narkesari Press in Nagpur has a mono-machine.  The High Court has  not believed  him.  He is the President of the  Rashtriya  Press

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Kamgar  Sangh  which is affiliated to  the  Indian  National Trade Union Congress.  He does not give out the name of  the person  who printed the document C in the  Narkesari  Press, nor  does he disclose the name of the person  who  delivered the  printed  copies  to the appropriate  authority  in  the Narkesari Press.  Although he admitted in  cross-examination that  he had not been to any other press in Nagpur,  he  has said  that except Narkesari Press no other press  in  Nagpur has  a mono-machine.  Evidently, this part of  his  evidence does  not  inspire confidence.  Not having  seen  any  other press  in Nagpur, he could not say that the Narkesari  Press alone has got a mono-machine.  For these reasons, we find it difficult to place any reliance on his testimony. Dhote  has  examined Manohar Bokare in support of  his  case that  the  document  2R 20 was published  in  the  Narkesari Press.  Manohar Bokare is the Manager of the Job Section  of the  Narkesari Press.  He says that he receives orders  from customers, hands over printed material to them, examines and makes  bills  and  prepares quotations  for  printing  jobs. Initially, be was summoned by the appellants as their 829 witness.  But later they gave him up.  So he was examined by Dhote.. He has said that document 2R 20 was published in the Narkesari Press.  He produced the original of the  document. He has stated that B. N. Gaikwad had given him the  original for  printing.   He has also filed the counter-foil  of  the bill  issued by him in connection with, the printing of  the document  2R  20.   He has denied that the  document  C  was printed in the Narkesari Press.  The High Court has believed his evidence.  Nothing has been shown to us to enable us to. take a different view. Sri  Phadke  has  made several  comments  on  his  evidence. Firstly,  he  has not produced the order book.  But  he  was never asked by the appellants to produce the order book.  In cross-examination  he, simply said that he has  not  brought the  order  book.   Secondly, while he. has  said  that  the printed matter was delivered by him to a boy, B. M.  Gaikwad has  stated that it was sent for by him through one  Doonger aged about 50 years.  This discrepancy is not sufficient  to discredit  his  evidence.  He was  examined  several  months after  the event.  Such a minor mistake is  accordingly  not unnatural and may be a slip of memory.  Thirdly, document  C is printed on news print paper.  It is, said that news print paper  is  not available in the market and that  document  C must  have been printed in the Narkesari Press  where  Tarun Bharat  was also being printed.  But there is some  evidence on record to show that neswprint paper was available in  the open market.  That aside, B. M. Gaikwad has stated that  the paper  for printing document 2R 20 was supplied by him  from the,  stock  of paper belonging to his party  at  Chhindwara from where a weekly organ of his party was being  published. Manohar  Bokare has deposed that there is an endorsement  on the original of 2R 20 that paper was given by the party  who got  it  printed.   The endorsement  was  according  to  him necessary for the purpose of sales-tax.  On his copy of  the bill  there  is  an  endorsement  "not  taxable".   He   has explained  that it was necessary to obtain the signature  of the customer if the paper was given by the press.. Fourthly, the Narkesari Press did not comply with the provisions of s. 127A  of the Act in regard to document 2R 20.  So it  should be  held  that  this  document  was  not  published  by  the Narkesari  Press.  Section 127A(2) provides that  no  person shall print or cause to be printed any election pamphlet  or poster-(I)  unless a declaration as to the identity  of  the publisher thereof, signed by him and attested by two persons

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to whom he is personally known, is delivered by- him to  the printer  in duplicate; and (2) 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, if printed in the capital of the State  to the  Chief  Electoral Officer and in any other case  to  the District Magistrate of the District in which it is  printed. Manohar Bokare has admitted in cross-examination that he has neither  obtained a declaration from B. M. Gaikwad, nor  has he  sent  a  copy  of the document 2R  20  to  the  District Magistrate,  Nagpur.   This is  incomplete  and  ineffective cross-examination.   Manohar  Bokare should have  been  also asked  if he had any explanation for those  omissions.   The omissions  might  have  been  of  some  assistance  to   the appellants  if Bokare could not give a  proper  explanation. The  possibility of a good explanation cannot be ruled  out. We agree with the High 830 Court  that  no adverse inference can be  drawn  from  these breaches of law.  Fifthly, he could not give the exect  date of the printing of 2R 20.  But he has said that no record of the  date of printing is maintained by him.   Lastly,  Dhote has  admitted that the diction of the document  C  resembles his own.  It would show that he has published this document. This  criticism has little force.  Dhote has also said  that he  had  made  numerous  speeches  in  the  course  of   his ,election.   So  it  was quite easy to pick  out  words  and phrases  from  his speeches and piece them together  in  the document C. Now,  the case of the appellants is that the document C  was printed.   The case of Dhote that is 2R 20 was printed.   It is  significant  that it is not the case of  the  appellants that two documents were published at once and the same time, one innocuous. and the other offending This has an important bearing  on probabilities.  It is highly improbable  that  a candidate would publish an offending document and show  .the expenses incurred on its printing in his return of  election expenses. The appellants have examined several witnesses to prove  the distribution  of  the document C during the  election.   The High  Court ’has disbelieved those witnesses.  It  has  held that  from  their  demeanour  they  appear  to  be   tutored witnesses.   Their evidence has not been pressed in  service before  us on behalf of the appellants.  So we do  not  deal with it. Issue No. 8 This  is the crucial issue in the appeal.   The  appellants’ case is -that Pundalik Masurkar and Satya Narain Sharma  had delivered  speeches in three meetings during  the  election. Those meetings were held on March 29 and 30, 1971, and April 7,  1971.   They were held respectively at  Nawi  Mangalwari Ganji  Peth  and Maska Sath.  By their  speeches  they  have committed the corrupt practice specified in s. 123(4) of the Act.  They committed the corrupt practice with the  .consent of  Dhote.  Dhote, it is alleged, delivered speeches in  the said meetings as well as in the meetings in Chamar Nala  and Kasturchand  Park.   The meetings in the latter  two  places were  held  on April 14 and 15, 1971.  By his  speeches,  he also  has  committed the aforesaid .corrupt  practice.   The High  Court has recorded these findings on this issue :  (1) the  appellants  have failed to prove that Dhote’  made  any -offending  statements in the aforesaid meetings;  (2)  they have  also failed to prove that Pundalik Masurkar and  Satya Narain Sharma made any offending statements in the aforesaid meetings; (3) they -have also failed to prove that  Pundalik

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Masurkar   and  Satya  Narain  Sharma  made  any   offending statements in those meetings with the consent of the  Dhote. It has further held that they have failed to -prove that the statements attributed to Dhote, Pundalik Masurkar and  Satya Narain Sharma constituted the corrupt practice specified  in 123(4) of the Act. The ground of challenge in the petition is one covered by s. 100(l) (b) and not s. 100(l) (d).  So we shall first examine the  ,evidence  to find out whether  Pundalik  Masurkar  and Satya Narain ’Sharma made the allegedly offending statements with the consent of 831 Dhote.   If  his  consent  is not proved,  it  will  not  be necessary  to examine the other aspects of this part of  the issue. Nawi Mangalwari Meeting: 29-3-1971 The appellants have examined Marot Rao, Ishwar Giri, Shanker Laxman  and Manhor Kashinath Kalankar.  Dhote  has  examined himself, Pundalik Masurkar and Satya Narain Sharma. According  to  Ishwar  Giri, Dhote was not  present  in  the meeting while Pundalik Masurkar and Satya Narain Sharma were sneaking.   Dhote  came  to the meeting  just  five  minutes before the end ’of- Satya Narain Sharma’s speech.  Marto Rao and  Shanker Laxman say nothing about the presence of  Dhote during  the speeches of Pundalik Masurkar and  Satya  Narain Sharma.  Manohar Kashinath Kalankar is the C.I.D.  Shorthand Writer.   He says that he was present in the meeting and  he took  down  the  notes  of  speeches  of  various   speakers including  the  aforesaid  two speakers.  He  says  that  he remembers  that  Dhote was present in the meeting  from  the very beginning.  But there is no note to that effect in  his note-book.  It will accordingly be not safe to depend on his memory,   especially  when  Ishwar  Giri  contradicts   him. Pundalik Masurkar has said that Dhote was not present  while he  was  speaking.  Dhote has said that he was  not  present when  Pundalik  Masurkar and Satya Narain  Sharma  delivered their  speeches.  He arrived in the meeting just when  Satya Narain Sharma was finishing his speech.  He has further said that Pundalik Masurkar and Satya Narain Sharma had spoken in the meeting without his knowledge and consent.  He has  said that  it was not his business to arrange  election  meetings and to invite speakers.  His election office used to  attend to  these matters.  His workers use to take, him to  various meetings  without any prior information of the  meetings  on his  part.   Satya Narain Sharma has said that  he  did  not report to any one the contents of his speeches.  He has also said  that B. M. Gaikwad, the election agent of Dhote,  used to  invite him to speak in the meetings held in  support  of Dhote.   This  is  the entire evidence on  the  question  of consent.   This  evidence  would show  that  Dhote  was  not present  in  the meeting when Pundalik  Masurkar  and  Satya Narain  Sharma were speaking.  He had no prior knowledge  of the  fact that they would speak in the meeting.  He had  not invited them to the meeting.  He denies his consent to their speeches.   There is no direct evidence of consent from  the side  of  the  appellants.   It is  not  possible  to  infer constructive   consent   from  the   foregoing   facts   and circumstances. Ganji Peth Meeting: 30-3-1971 : The  appellants  have examined Manohar  Kashinath  Kalankar, Shesh  Rao Kambale, another C.I.D. Shorthand  Writer,  Mohd. Yakub Qamar and Dr. Ram Narain.  Dhote has examined  himself and  Satya  Narain Sharma.  There is no direct  evidence  of consent  Mohd.  Yakub Qamar and Dr. Ram Narain  say  nothing about  the presence of Dhote while Satya Narain  Sharma  was

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speaking.  Manohar Kashinath Kalankar says that he remembers that  Dhote  was  present  in  the  meeting  from  the  very beginning.  Shesh Rao, refreshing his memory from his notes, said that his notes show that Dhote was welcomed and 832 "therefore  I say he was present from the  very  beginning." The note book of Manohar Kashinath Kalankar does not  record that Dhote was present from the very beginning. it will  not be  safe to rely on his memory.  It is true that  Shesh  Rao has  noted  in his note book that Dhote was  welcomed.   But from  this fact it does not necessarily follow that  he  was present from the very being.  He could be welcomed  whenever he  arrived  in  the meetings Dhote has said  that  when  he reached  the  meeting,  Satya Narain Sharma  was  ’halt  way through his ,.speech’. But we do not know when Satya  Narain Sharma made the allegedly offending remarks in the course of his speech.  It cannot therefore be said that those  remarks were  made in the presence of Dhote.  So we agree  with  the High  Court  that the appellants have failed to  prove  that Dhote  had given his consent to the speech of  Satya  Narain Sharma in this meeting. Maska Sath Meeting : 7-4-1971 : The witnesses of the appellants for this meeting are Manohar Kashinath Kalankar, Shesh Rao Kambale, Manohar Tajane, Yadao Shripurkar  and  Marot Rao, Dhote has examined  himself  and Satya Narain Sharma Manohar Kashinath Kalankar and Shesh Rao Kambale  are the C.I.D. Shorthand Writers.  The  appellants’ witnesses   have  deposed  that  offending   speeches   were delivered  by Dhote and Satya Narain Sharma.   According  to Manohar  Kashinath  Kalankar, Gunawant  Nagpure  had  spoken before  Satya Narain Sharma.  He says that Dhote arrived  in the  meeting  while Gunawant Nagpure was speaking  and  that Gunawant  Nagpure continued speaking after his arrival.   He also  says  that he has made a note  about  Dhote’s  arrival while Gunwant Nagpure was speaking in his note-book.  He has produced  his  note-book.   It begins  with  the  speech  of Chandrabhan  Bodkar.   The speech is written  in  shorthand. Two-third   of  the  page  is  covered  by  the  speech   of Chandrabhan  Bodkar, and over the remaining seven  lines  of the page no speech is recorded.  The speech of Satya  Narain Sharma  is taken down in short-hand on the next  page.   The contents recorded over seven lines of the preceding page are these : "Kamal Kishore Upadhyaya      Something in Short-hand Gunwant Nagpure ,(F.B.)                 -/2 Sri J. B. Dhote arrived. Sri Nagpure continued speaking." There is absolutely no difference in the ink of the notes of the speeches of Chandrabhan Bodkar and Satya Narain  Sharma. But the ink of the aforesaid quoted lines written in English is  visibly  different.  This difference  is  suggestive  of later  interpolation  of  the aforesaid  quoted  lines,  the purpose  being to prove the presence of Dhote  during  Satya Narain  Sharma’s  speech  and his implied  consent  to  that speech. it may, however, be observed that Manohar  Kashinath Kalankar  was not cross-examined by Dhote on the  difference in  ink.   However, suspicious the entry  of  the  aforesaid lines may be, we are reluctant to draw any adverse inference against  Manohar Kashinath Kalankar from the  difference  in ink  for want of cross-examination.  But in view of  certain other  circumstances we do not think it safe to rely on  the aforesaid 833 note  in  his note-book.  One, Shesh  Rao  Kambale,  another C.I.D.  Shorthand writer, was also present in  the  meeting.

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He  has  taken  down in short-hand  the  speeches  of  Kamal Kishore Upadhayaya, Gunwant Nagpure, Keshav Rao Gadekar  and Dhote.  He has not deposed that Dhote arrived in the meeting while  Gunwant Nagpure was speaking.  Two Manohar  Kashinath Kalankar seems to us to be anxious to help the cause of  the defeated  Congress candidate, R. C. Sharma.  As regards  the meeting  held  at  Nawi Mangalwari and Ganji  Peth,  he  has deposed  from  memory that Dhote was present from  the  very beginning of those meetings.  It may be observed that he has made  no such note in his note-book.  We have  already  held that  Dhote  arrived  in those meetings  when  Satya  Narain Sharma was about to finish his speech.  We have  disbelieved his statement made from memory.  It seems to us that he  has ventured  to  speak  ’from  memory’ in  order  to  help  the appellants  and R. C. Sharma.  Third, Manohar Tajane,  Shesh Rao-  Kambale  and Marot Rao say nothing in  their  evidence about  the  presence of Dhote during the speech  of  Gunwant Nagpure  and Satya Narain Sharma.  Marot Rao is one  of  the appellants in this appeal.  The note alleged to have made by Manohar  Kashinath  Kalankar in his note-book does  not  get support from their testimony.  Fourth, Yadao Shripurkar said that  Dhote  was  present  when  Satya  Narain  Sharma   was speaking.   The High Court has disbelieved him.  We  see  no reason to differ with the High Court.  He has admitted  that he  was  the  Vice-President of  the  Nagpur  City  Congress Committee.   He has also admitted that he has canvassed  and given speeches in support of R. C. Sharma He has distributed cards  for  R. C. Sharma.  He was R.  C.  Sharma’s  counting agent also.  He is thus a partisan witness.  The High  Court has made an adverse note about his demeanour.  He is  unable to  explain  his presence in the meeting, for  his  evidence shows  that  he  had no prior information  of  the  meeting. Although  he  was very closely connected with  the  election campaign of R. C. Sharma, he admits that he informed neither the Congress Election Office nor R. C. Sharma of the offend- ing speeches of Dhote and Satya Narain Sharma.  According to him, he and Manohar Tajane went together to the meeting.  He further  says  that when Satya Narain  Sharma  finished  his speech, both of them were away to Itwari Chowk for about  1- 1/2 hours for taking tea.  When both of them returned to the meeting,  Dhote  was  speaking.   Manohar  Tajane  does  not support  him  there.  According to him, he did not  go  with Yadao Shirpurkar to Itwari Chowk.  They parted company after the  end of Satya Narain Sharma’s speech.   Yado  Shirpurkar betrays  a  tendency of giving evasive  answers  to  awkward questions  in cross-examination by merely saying "I  do  not remember."  For  all these reasons, we are not  inclined  to place reliance on his evidence. In  his  cross-examination, Satya Narain Sharma  has  stated that  he arrived at the meeting when Kesho Rao  Gadekar  was speaking.   He further said that Dhote spoke after him.   He was not asked as to whether Dhote was present in the meeting when   he  arrived  or  while  he  was  speaking.   In   his examination-in  chief,  Dhote  stated that  he  reached  the meeting  after  the speech of Satya Narain Sharma.   In  his cross-examination he stated that he generally arrived in the meetings  at the end as several meetings were  addressed  by him every day.  He further stated 834 that  he did not remember whether Gunwant Nagpure  spoke  in this meeting.  He was not specifically asked whether it  was a fact that he arrived at the meeting when Gunawant  Nagpure was  speaking.  It may also be observed that the  appellants did not come forward with, a positive case in their petition that  Dhote  was present during tic speech of  Satya  Narain

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Sharma  and  that he did not protest against  the  allegedly offending statements of Satya Narain Sharma.  This lack of a positive  statement is a characteristic of  the  appellants’ allegation  of  consent  in  respect  of  all  the  meetings discussed  earlier.  In the circumstances of this  case  and for  the  reasons already discussed we think that  the  High Court  has rightly held that the appellants have  failed  to prove  the  consent of Dhote to the speech of  Satya  Narain Sharma in this meeting. The Case against Dhote We shall now examine the appellants, evidence against Dhote. The High Court has elaborately discussed and commented  upon the  evidence.  As we are in agreement with the High  Court, we shall indicate only the salient features of the evidence. Nawi Mangalwari Meeting-29-3-1971 It  is alleged in paragraph 23(a) of the  election  petition that  Satya  Narain  Sharma and Pundik  Masurkar  said  that Rikhabchand  Sharma ’;is a man having no character and is  a smuggler of gold." Satya Narain Sharma, it is alleged,  also -said  that Rikhabchand Sharma "has taken a bribe of  Ps.  5 lakhs   from   powerloom   owners   and,   therefore,    the recommendations of Ashok Mehta Committee to the effect  that the  Coloured saris should not be printed on  powerloom  has not been given effect to." It is further alleged that  Dhote "also made personal attack on Shri Sharma saying that he has no character." In  his  written statement Dhote has admitted  that  he  had spoken in the meeting.  But he said that he made no  adverse remarks against Rikhabchand Sharma. To prove their case, the appellants examined Marot Rao (on.- of  them), Ishwargiri, Shankar Laxman Nandankar and  Manohar Kashinath  Kalankar.  We shall discuss the evidence  of  the last witness at a later stage and under the general  heading of  police  witnesses.  For the present,  we  shall  confine ourselves to the evidence of the remaining witnesses. As regards Marot Rao, the High Court says that his  evidence is  not reliable.  The High Court has further remarked  that counsel  for. the appellants did not rely on  his  evidence. According to the High Court, Ishwar Giri did not attend  the meeting  and  has given a tutored version.   Shankar  Laxman Nandankar  was a chance witness and is not believed  by  the High Court.  Counsel for the appellants has not been able to show us that the High Court is wrong in the appraisal of the evidence of the aforesaid witnesses. Marot Rao is an appellant in this case.  He is an interested witness.  He is also an omnibus witness.  He claims to  have been present not only in this meeting but also in the  Ganji Peth and Kastur- 835 chand Park meetings Admittedly, he, did not take down  notes of   the  speeches.   His  evidence  does   not   completely correspond  to  the pleadings in paragraph 23 (a).   In  his evidence he says that Pundlik Masurkar called him a smuggler of  gold.  In his evidence he says that Satya Narain  Sharma said  that Rikhabchand Sharma has received Rs. 5 lakhs  from powerloom owners, and that he was a man of no character. Ishwar  Giri is a chance witness.  He has admitted  that  in his  life  he  has never attended any  meeting  except  this meeting.   He pretended to have an excellent memory.  But  a vigorous cross-examination has shattered his tall claim  and has shown that he is a man of short memory.  He has admitted that  he did not take notes of the speeches in the  meeting. According  to  him, Pundlik Masurkar said  that  Rikhabchand Sharma  was carrying on smuggling business and was  corrupt. Satya  Narain Sharma said that when the Bunker Sena  made  a

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statement on the production of coloured saris on power loom, the   Maharashtra  Government  "hung  up  the  Ashok   Mehta Committee  Report  on  a peg".  Rikhabchand  Sharma  was  "a leader  of  the  people who manufacture  illicit  liquor  in Nagpur and who run gambling dens in Nagpur." Dhote said that corrupt and characterless Rikhabchand Sharma was talking  of purchasing  poor people.  Corrupt and  characterless  Sharma has committed the political murder "of my friend  Deoghare." Corrupt  Sharma has secured 500 powerlooms for  the  Momins. He  has taken Rs. 5 lakhs from them and he  has  distributed that  amount  lavishly  for  election  purposes.   He   runs distillation centres, gambling dens and brothels in  Nagpur. Obviously  be  is  making preceptible  improvements  on  the pleading in paragraph 23(a) of the petition. Shanker  Laxman Nandankar also is a chance,  witness.   Nawi Mangalwari  is three miles from his house.  He says that  he went  to  the house of his aunt’s son who  is  living  there because  he was called by the latter to his house.  But  for this  explanation  he  would not have been  present  in  the meeting.   Admittedly,  he did not take down  notes  of  the speeches.   Although several speakers spoke in the  meeting, he does not remember the speeches of the speakers other than Dhote, Pundlik Masurkar and Satya Narain Sharma.   According to  him, Pundlik Masurkar said that Rikhabchand  Sharma  was selling land which he had purchased during his Mayorlity  of the  Nagpur  City  Corporation  and  using  that  money  for election.  He also said that Rikhabchand Sharma was carrying on  ’smuggling  business’.  Satya Narain  Sharma  said  that Rikhabchand  Sharma was a corrupt man and that he had  taken money from powerloom owners and was utilising that money for elections.  He also said that Rikhabehand Sharma carried  on ’smuggling  business’ and that be was a corrupt and  cbarac- terless  man.   Dhote  said that Rikhabchand  Sharma  was  a corrupt man.  While paragraph 23(a) of the petition  alleges that Rikhabchand Sharma was called a man of no character, he says that Rikhabchand Sharma was also spoken of as a corrupt man.   He  makes  other variations and  omissions  from  the pleadings in his evidence. Having regard to the foregoing discussion, we agree with the High  Court  that  it  will not be safe  to  rely  upon  the evidence of these witnesses. 836 Ganji Peth-30-3-1971 Paragraph  23 (d) of the petition alleges that Satya  Narain Sharma and Dhote spoke in this meeting.  Satya Narain Sharma said  that Rikhabchand Sharma "is a supporter of gundas  and gangs  involved in smuggling." Dhote said  that  Rikhabchand Sharma "is trying to purchase votes by money".  He also said that  Rikhabchand  Sharma  "is a corrupt  man  and  in  fact Rikhabchand  Sharma is thy name corruption." The  appellants examined  three  witnesses, Marot Rao (one of  them),  Mohd. Yakub  Qamar  and Dr. Ram Narain.  The High  Court  has  not relied  upon  the evidence of Marot  Rao.   Regarding  Mohd. Yakub Qamar, it has held that he did not attend the meeting. Dr. Ram Narain, according to the High Court, has given false evidence. We  have  already  rejected the testimony of  Marot  Rao  in regard  to  Nawi Mangalwari meeting.   Obviously,  there  is variance between the pleading and his evidence, in regard to the speeches of Satya Narain Sharma and Dhote.  Mohd.  Yakub Qamar  seems  to  have a grouse against Dhote.   He  is  the Chairman  of  the powerloom society.  He has  admitted  that Dhote  led an agitation against the production  of  coloured saris  on  powerlooms  and that the  powerloom  society  was opposed  to the agitation.  He was a Congress candidate  for

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the  Nagpur Corporation in the elections held in 1959,  1962 and 1969.  He is an ’active’ member of the Congress.  He has admitted  that he did not take notes of the speeches in  the meeting.   He  has  also admitted that  he  did  not  inform anybody about the speeches in the meeting he did not  inform even the Congress Election Office.  With his interest in the Congress candidate, it is difficult to believe that if Satya Narain Sharma and Dhote had made objectionable speeches,  he would  have  failed  to inform  Rikhabchand  Sharma  or  the Congress  Election Office.  He is a man of weak memory.   He could not reproduce the speech of Satya Narain Sharma  which he  had  repeated earlier in his evidence.   He,  could  not explain  as to how the appellants came to know that  he  was present  in  the  meeting.  There is  variance  between  the pleading  and hi& evidence as regards the speeches of  Satya Narain  Sharma and Dhote,.  According to him,  Satya  Narain Sharma said that Rikhabchand Sharma was the protector of the goondas and that he arranged for regular payments to be made to  the  police by person who maintained gambling  dens  and that  he also indulged in smuggling gold.  Dhote,  according to  him,  said that Rikhabchand Sharma was  a  Bhrasbtachari (corrupt) Dr.  Ram  Narain has appeared as a  witness  for  Rikhabchnd Sharma.  He was the counting agent of Rikhabchand Sharma and was  in the hall where counting was done from 8.00  a.m.  to 10.00  p.m.  He  was  a Congress  candidate  in  the  Nagpur Corporation  election in 1969.  He is an ’active’ member  of the  Congress.  So, be is a highly interested  witness.   He has  admitted that he did not inform Rikhabchand Sharma  and the  appellants about his presence in the  meeting.   Having regard  to  his  interest  in  Rikhabchand  Sharma,  it   is difficult to believe that if any objectionable speeches  had been made in the meeting, by Satva Narain Sharma and  Dhote, he  would  have failed to inform Rikhabchand Sharma  of  the offending speeches.  There is variance bet- 837 ween  the  pleading  and his evidence  in  regard  to  their speeches.   According to him, Satya Narain Sharma and  Dhote both  said  that Rikhabchand Sharma "was  arranging  regular payment  to the police, that he was siding with the  goondas and  that he carried on smuggling business." They also  said that  he  was a corrupt and discredited man.  He  also  said that  Dhote asked a question "whose name  was  Bhrashtachari and  himself  answered  by  saying  the  Congress  cha   nam Bhrashtachari (Congress is corrupt).  He also said that  the Congress men were Haram Khor (bad living) and they purchased votes with tainted money.  He further said that  Rikhabchand Sharma was a Bhrashtachari (corrupt). In  view  of the foregoing discussion, we are  in  agreement with  the High Court that no reliance can be placed  on  the evidence of these witnesses. Maska Sath-7-4-1971 The  appellants examined two witnesses, Manohar  Tajane  and Yadao Shirurkar.  The High Court has held that the former is a tutored witness and the latter is not reliable. There  is variance between the pleading and the evidence  of Manohar  Tajane.  He also tried to improve on the  pleading. Paragraph  23(c) of the petition alleges that  Satya  Narain Sharma  said  that  Rikhabchand  Sharma  "is  a  man  of  no character." Dhote said that "the fight is between corruption and  purity represented by him and corruption by  respondent No.  3."  According to Manohar Tajane, Satya  Narain  Sharma said  that  Rikhabchand  Sharma "is  corrupt  and  deals  in smuggling of gold." He also said that Rikhabchand Sharma was "characterless and is a protector of people who are  dealing

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in  liquor,  ganja, satta and gambling." According  to  him, Dhote  said  that  it is a  fight  between  "corruption  and characterless  and purity and good character.  On  one  side there  is  corrupt Sharma, on the other good  character  and purity." Yadao  Rao  Shirpurkar,  as  discussed  earlier,  is  highly interested in Rikhabchand Sharma.  His evidence suffers from the  same infirmities as that of Manohar Tajane.   The  High Court did not rely on their testimony, and neither do we. Chamar Nala -14-4-1971. The  appellants examined Laxminarayan Ganjli (one  of  them) and  Shankerlal.  The High Court says that the  evidence  of the  former  is thoroughly unreliable and  counsel  for  the appellants   did   not  refer  to  his  evidence   at   all. Shankerlal,  the  High Court has found, did not  attend  the meeting.   Laxminarayan  is one of the  appellants.   He  is accordingly  an interested witness.  Admittedly, he took  no notes  of  the  speech.   Although he  says  that  both  the appellants gave information to the lawyer who drafted  their election  petition, he did not inform the lawyer  about  his presence  in  the  meeting and about  the  offending  speech delivered by Dhote.  He makes improvement upon the pleading. Paragraph  23  (d) of the petition alleges that  Dhote  said that  Rikhabchand  Sharma  "is a corrupt  man  supported  by corrupt Naik Govern- 838 ment."  In  his  evidence,  he says  that  Dhote  said  that Pikhabchand   Sharma  has  become  rich  by   indulging   in corruption and black-market.  Rikhabchand Sharma was  trying to purchase votes by money.  A corrupt man like  Rikhabchand Sharma could not usher in the socialist society.  He was the symbol of sin in the city of Nagpur. Shankerlal  could not tell the name of the President of  the meeting.   Admittedly, he took no notes of the  speech.   He also admits that he did not tell any body of his presence in the meeting.  He also makes’ improvement upon the  pleading. According  to him, Dhote said that Rikhabchand Sharma was  a Bhrashtachari   and  that  all  his  money  was  earned   by corruption.  He also said "Ye Rikhamchot Sharma earns  money by corruption." We  agree  with the High Court that it is not safe  to  rely upon the evidence of these witnesses. Kasturchand Park-15-4-1971 The  appellants  have,  examined Marot  Rao  (one  of  them) Janaklal and Namdeo Rao.  The High Court held that Marot Rao was not present in the meeting and is an unreliable witness. It  has also held that Namdeo Rao is an  interested  witness and that he did not attend the meeting.  Janaklal’s evidence is  not helpful to the appellant’s case.  According to  him, Dhote  delivered  an innocuous speech.  It  has  found  that Namdeo  Rao is an interested witness and was not present  in the meeting, Marot  Rao,  being an appellant, is an  interested  witness. The dais in the meeting was improvised on a truck which  had been  used in the procession taken out before  the  meeting. But he did not say that the dais was improvised on a  truck. He improved upon the pleading.  We have already rejected his evidence in regard to other meetings. Janaklal also could not say that the dais was improvised  on a  truck.  He is a chance witness.  Moreover,  according  to him, Dhote simply said that "he did not want to say anything about  Sri  Sharma, that they would learn  about  him  after reading  Gram  Sewak." This evidence does not  attribute  to Dhote any statement of fact which would fill within the grip of section 123(4).

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Namdeo Rao is an interested witness.  He is a member of  the Congress which has set up Rikhabchand Sharma as a candidate. He was Rikhabchand Sharma’s counting agent in the  election. He  did not inform anyone about the speech of Dhote.  It  is difficult  to  believe that if Dhote had in  fact  made  any objectionable  remarks,  he  would  have  failed  to  inform Rikhabchand  Sharma.   He has improved  upon  the  pleading. Paragraph  23(e)  alleges that Dhote said  that  Fikhabchand Sharma  "is corrupt." According to his evidence, Dhote  said that  Rikhabchand  Sharma  was  a corrupt  man  and  has  no character.  He also said that Rikhabchand Sharma was dealing in  illicit  liquor  and  was running  brothels  and  was  a smuggler  of  gold.  There is one curious thing  about  him. While according to Janaklal Dhote said that "he did not want to say anything about Sri Sharma and that they would learn 839 about  him  after reading Gram Sewak", he  says  that  Dhote first said that he did not want to speak anything about  Sri Rikhabchand Sharma and that the audience knew about the work of  Rikhabchand  Sharma.   Thereafter  he  says  that  Dhote further  made  the aforesaid false statement  regarding  the character of Rikhabchand Sharma.  Thus he seeks to reconcile his statement to that of Janaklal. Like  the High Court, we are unable to rely on the  evidence of these witnesses. Police witnesses We shall now consider the evidence of the two C.I.D.  Short- hand  writers,  Manohar  Kashinath Kalankar  and  Shesh  Rao Kambale. Manohar  Kashinath  Kalankar was it is said present  in  the Nawi  Mangalwari,  Ganji Peth, Maska Sath, Chamar  Nala  and Kasturchanci Park meetings.  Shesli Rao Kambale was  present in  the Gauji Peth, Maska Sath, Chamar Nala and  Kasturchand Park meetings.  One or the other of them took down the notes of  the speeches of Pundalik Masurkar, Satya Narain  Sharma, Dhote  and  other speakers.  The notes were  taken  down  in short-hand except in the case of Dhote’s speech in the  Nawi Mangalwari meeting.  That speech was taken down in long hand in  Marathi by Manohar Kashinath Kalankar.  The  transcribed note  of speeches recorded by Manohar Kashinath Kalankar  at the  Nawi  Mangalwari are Ex. 70, at Ganji Peth Ex.  71,  at Maska  Sath,  Ex.  72, at Chamar Nala Chowk,  Ex.  73.   The transcribed notes of speeches recorded by Shesh Rao  Kambale in the meeting at Ganji Peth are marked Ex. 79, and at Maska Sath  Ex. 80.  The transcribed notes of the speech of  Dhote in  the  Kasturchand  Park meeting are marked  Ex.  81.   It appears  that the High Court was not sure that the  speeches have  been correctly recorded in the note-books.   The  High Court  has also found that they were "too ready and  willing to help the petitioners," and it will not be safe to rely on their testimony.  Three preliminary questions arise for  our consideration:  (1)  the scope of appellate review  in  this case, (2) the admissibility of notes of speeches recorded by the aforesaid witnesses; and (3) their credibility. Scope of appellate review : Section 116A of the Act provides for an appeal to this Court from  an  order  of the High Court  dismissing  an  election petition.   The  appeal lies both on issues of  law  and  of facts.  Section 116C applies the Code of Civil Procedure  as nearly  as  possible.  Hence the present appeal  is  in  the nature,  of a first appeal from decree under that Code,  The power  of  the  appellate  Court  is  very  wide.   It   can reappraise  the  evidence  and  reverse  the  trial  court’s findings  of  fact.   But like any other  power  it  is  not unconfined: it is subject to certain inherent limitations in

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relation to a conclusion of fact.  While the trial court has not  only read the evidence of witnesses on record  but  has also   read  their  evidence  in  their  faces,  looks   and demeanour.   The  appellate  Court  is  confined  to   their evidence on record.  Accordingly "the 840 view  of  the trial judge as to where  credibility  lies  is entitled   to   great  weight."   (See   Saraveeraswami   v. Talluri(l).  However, the appellate court may interfere with a  finding  of  fact if the trial court  is  shown  to  have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility  of the  witness  is inclined against the opinion of  the  trial court. (See Sarjy Pershad v. Raja Jwaleshwari Pratap  Narain Singh.  (2)  This limitation on the power of  the  appellate court in a first appeal from decree, on principle, will also apply to an election appeal under section 11.6A. It has been so  extended by this Court.  Whether we should  believe  the witnesses  or  not  involves how far we  should  enter  into facts.  "No doubt, an appeal before this Court under S. 116A is  an appeal. . .. on facts and law; still the practice  of the  courts  has  uniformaly  been  to  give  the   greatest assurance  to the assessment of evidence made by  the  Judge who  hears  the witnesses and watches  their  demeanour  and judges  of their credibility in the first instance.   In  an appeal  the  burden  is on the appellant to  prove  how  the judgment  under appeal is wrong.  To establish this he  must do something more than merely ask for a reassessment of  the evidence.   He  must show wherein the  assessment  has  gone wrong." (See Narbada Prasad v. Chhagaul(2).  It should  also be borne in mind that in the instant case the High Court has held Dhote not guilty of the alleged corrupt practice  which is  a quasil-criminal charge.  This Court should be slow  to disagree  with  the  finding  of the  High  Court  based  on appreciation  of  evidence.  (D.  P.  Misra  v.  Kam  Narain Sharma(4).   The appellant should put their case within  the scope  of  this limited review; otherwise  they  should  not succeed. Counsel  for  the  appellants points  out  that  in  Reddiar (supra)  and  Virendra Kumar Saklecha  v.  Jagjiwan(5)  this Court  has  reappraised evidence and  reversed  findings  of facts  relating  to corrupt practice recorded  by  the  High Court.  Reddiar (supra) is plainly distinguishable from  the present  case.  We have earlier referred to this case.   The oral   evidence  in  the  case  was  corroborated   by   "un impeachable documentary evidence" of applications to  police for  permission  to hold meetings and by police  reports  of speeches delivered in the meetings.  As regards the  reports of  speeches the Court said that the police  witnesses  were "not shown to be inimically disposed towards the  respondent or  his party." Saklecha is indeed against  the  appellants. There the High Court bad believed the oral evidence in proof of  corrupt practices.  This Court, on a reappraisal of  the evidence,  came  to  the  reassuring  conclusion  that   the witnesses  "  were  all  prepared on  the  same  pattern  of evidence." In the present case the High Court has recorded a similar finding. 1.   A. I. R. 1949 P. C. 32. 2.   [1950] S. C. R. 781 at p. 784 per Mukherjea J. 3.   [1969] 1 S. C. R. 499 at p. 504 by Hidayatullah C. J. 4.   (1971] 3 S. C. R. 257 at p. 261 per Shah J. 5.   [1972] 1 S. C. C. 826. 841 Admissibility of their evidence : Counsel  for  Dhote  has submitted that  their  evidence  is

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inadmissible.  in  this connection it will be  necessary  to refer to ss. 159, 160 and 161 of the Indian Evidence, Act.               "S.   159.   A  witness   may,   while   under               examination refresh his memory by referring to               any  writing. made by himself at the  time  of               the   transaction  concerning  which   he   is               questioned,  or  so soon afterwards  that  the               Court considers it likely that the transaction               was at that time fresh in his memory.               The witness may also refer to any such writing               made  by  any other person, and  read  by  the               witness within the time aforesaid, if when  he               read it he knew it to be correct.  Whenever  a               witness may refresh his memory by reference to               any  document, he may, with the permission  of               the Court, refer to a copy of such document :               Provided the Court be satisfied that there  is               sufficient  reason for the  non-production  of               the original:               S.  160.  A witness may also testify to  facts               mentioned in any such document as is mentioned               in  section 159, although he has  no  specific               recollection of the facts themselves, if he is               sure that the facts were correctly recorded in               the document. (emphasis added).               S.  161.   Any writing referred to  under  the               provisions of the two last preceding  sections               must  be  produced and shown  to  the  adverse               party if he requires it; such party may, if he               pleases, cross-examine the witness thereupon." There   are  thus  three  conditions  for  admitting   their evidence.   The first condition is that the notes must  have been taken down by them as and when the speeches were  being delivered or so soon afterwards that the speeches were fresh in their memory.  The second condition is that the witnesses must be sure that the speeches have been correctly  recorded by them.  The third condition is that the notes must be pro- duced  and shown to the adverse party if he  requires  them. Such party may cross-examine them if he so desires. It  does not appear to have been the case of Dhote that  the witnesses  were  not present in the meetings except  one  in which the offending speeches were delivered.  The  witnesses have stated that they took down the notes of the speeches as and when they were being delivered.  Accordingly, the  first condition  is  satisfied.  Counsel for Dhote says  that  the third condition was not satisfied.  The transcribed notes of the speeches were given to Dhote on demand and he has cross- examined the witnesses.  But counsel says that the notes  of speeches  are in short-band which Dhote cannot  decipher  at all.  According to him the notes must have been recorded  in the  language which can be understood by the adverse  party. We  are  unable to appreciate this extreme  contention.   It means that the notes of a speech recorded in Bengali or 842 Oriya will be inadmissible if the adverse party is  ignorant of  that  script  and language.  Not  any  uniform  rational principle,  but  the literacy and  multi-linguality  of  the adverse party will determine the admissibility of  document. This  interpretation  of  S.  161  is  absurd  as  well   as impracticable.   The  Evidence Act itself  furnishes  cogent evidence  against this interpretation.  According to s.  98, evidence  may be given to show the meaning of  illegible  or not commonly intelligible characters, of foreign, obsolctte, technical,    local    and   provincial    expressions    or abbreviations,  and of words used in peculiar sense.   Under

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s. 162, where a witness asked to produce a document in Court objects  to its production, the Court shall decide  on  such objection.   For  this  purpose the Court  may  inspect  the document,  unless it refers to matters of State.  The  Court may  get  the  document translated if  it  cannot  read  the original.   Notes  in short-hand may be said to be  in  ’not commonly intelligible characters’ and ’abbreviations’ under. S. 98.  Evidence can be given to show their meaning.  It  is a  matter of every day experience that commercial  documents recorded  in  mahajani  are admitted in  the  civil  courts. Claims  are  even  founded on those  documents.   We  go  by English  translations of documents on record.  So  we  eject this argument. However, the note of the speech taken down by Manohar Kashi- nath Kalankar in the Nawi Mangalwari meeting is inadmissible under  160. The relevant extract from his notes  of  Dhote’s speech  is  this  "Bhrashtachari  Sharma  is  speaking   the language  of  purchasing  poor People.. .  at  the  time  of election (you) will get note (money) but for the movement  I am  willing  to shed my blood." In  his  examination-inchief Kalankar has deposed that the extract was correctly recorded by,  him  while  Dhote  was speaking.   But  in  his  cross- examination  he  has made this admission : "It  is  possible that  if  the speaker had said :  "Bhrashtachari  Congesscha Sharma" a word might have been missed. ,Now, I say that  the word "Congresscha" might have been missed." Now, there is  a world  of  difference  between  "Bhrashtachari  Sharma"  and "Bhrashtachari   Congresscha  Sharma".   The  former   means ’fallen  conduct  Sharma’; the latter means ’Sharma  of  the fallen   conduct  Congress.’  if  Dhote  had   really   said "Bhrashtachari Congresscha Sharma" it would not amount to  a corrupt practice.  This admission of Kalankar in his  cross- examination casts doubt on the accuracy of his recording  of Dhote’s speech in this meeting. Two other circumstances also enhance our doubt.  Admittedly, Dhote  spoke in Marathi.  Kalankar is not a  Marathi  short- hand  writer.   So he says that he took down the  speech  of Dhote in long hand in Marathi.  It is quite possible that in the  long  hand recording of a speech some  words  might  be missed by the reporter.  Again, while the election  petition alleges   that  in  this  meeting  Dhote  said   only   that Rikhabchand was a ’characterless man’ (Charitrahin), in  the aforesaid  extract  the charges ire  of  Rikhabehand  Sharma being of fallen-conduct and of the electors getting money in the election.  On account of all these circumstances, we are not  sure  that the extract is a correct  recording  of  the speech  of Dhote.  Hence we will exclude from  evidence  the aforesaid extract as being inadmissible in evidence. 843 Counsel  for the appellant has referred us to  Kanti  Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel(’)  and P. C. Purshothama Reddiar v. S. Perumnal(2).  These cases do not help him.  In the former case, the police reporters  who took  down the speeches of Shambhu Maharaj had  stated  that they  had  correctly  recorded the  speeches.   Nothing  was elicited from their cross-examination to cast doubt on their asserted correct recording of the speeches.  The High  Court believed  the police witnesses, and this Court affirmed  the view  of  the High Court.  In the latter  case,  the  police reports  of  speeches  were not cited  for  the  purpose  of proving  the commission of any corrupt practice.  They  were cited  merely to prove that the returned candidate had  held certain meetings, the expenses of which he had not shown  in his  return  of  election expenses.   The  corrupt  practice charged  was of spending more than the authorised amount  in

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election.   The  Court was not concerned with  the  question whether  the police reports of speeches were  admissible  in proof of a corrupt practice under s. 123(4). Credibility of the evidence of the aforesaid witnesses: Dhote  spoke in Hindi in the Chamar Nala meeting.   Kalankar claims  to  have recorded his speech in  the  meeting.   The relevant extract from his speech is as follows : "Sharma and Naik  (reference  is to Rikhabchand Sharma  and  Vasant  Rao Naik,  Chief  Minister of Maharashtra) have become  rich  by corruption.   Corruption thy name is Rikhabchand."  He  also said : "You have to cast your vote after thinking  properly. It will be decided in this election whether people here will choose  corruption or a social worker." it will not be  safe to place implicit reliance on Ms testimony in regard to this meeting.   While  assessing  the  probative  value  of   his evidence,  it win be necessary to remember that "the  report of   a   short-hand  writer  is,  strictly   speaking,   not substantive  evidence as such, and the document can only  be used as a part of the oral evidence sanctified by oath." (Kanti Prasad Jayshanker Yagnik, supra). There are several reasons why his testimony does not inspire confidence.   Firstly, there is some evidence to  show  that the  Nagpur police must have had a strong prejudice  against Dhote.   Rikhabchand Sharma has filed a  written  statement. He  has  annexed a schedule to the written  statement.   The schedule gives a list of 25 cases against Dhote.  On May  4, 1964   Dhote  along  with  his  associates  assaulted   Head Constable  Deo  Narain  who was on duty at  Yeotmal.   In  a public  meeting  held  at  Pimpari he  is  alleged  to  have delivered  a  speech  instigating  the  people  for  looting godowns  and assaulting public servants.  On April 11,  1968 he  delivered  a speech in a public  meeting  at  Hinganghat instigating  people  to assault  government  officials.   On October  17,  1968  at Akola  Railway  Station  he  forcibly entered  into  a first class compartment in which  the  late Shri  Gopalrao  Khedekar,  a minister  of  Maharashtra,  was travelling,  by pushing the police inspector aside.  On  May 5,  1970  he is said to have delivered a  speech  at  Wardha threatening Police (1) [1969] 3 S. C. R. 400. (2) (1972] S. C. R. 646. 844 Sub-inspector  Pawar for prosecuting Forward  Block  workers and demanding his transfer and threatening revenge if he was not transferred.  On November 22, 1970, Dhote along with his followers led a procession and is alleged to have threatened the police and caused damage to the police wireless van. Secondly,  Manohar  Kashinath Kalankar  has  evidently  made exaggerations  in his oral evidence.  For instance,  in  his examination-in-chief  he said that he had attended  meetings of  different  parties.   But in  cross-examination  he  was forced to admit that he had attended only one meeting of the Hindu  Mahasabha.  He said in his cross-examination that  he could  not tell from memory what speeches were delivered  in the meetings which he attended.  It will indicate that he is not  a  man  of super-human  memory.   Nevertheless  he  has ventured  to  vouchsafe from memory that Dhote  was  present from  the very beginning in the meetings in  which  Pundalik Masurkar  and Satya Narain Sharma were speakers.  On  cross- examination,  he  admitted  that there is no  note  to  that effect in his note-book.  We have already held that he seems to be interested in helping the cause of Rikhabchand  Sharma and appellants.  From a witness of speeches he has converted himself to a witness of Dhote’s consent for the speeches  of Pundalik Masurkar and Satya Narain Sharma.  We have  already

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rejected  his evidence in that connection.  So he is not  an impartial witness.  Thirdly, it is not free from doubt  that he  was  present in the Chamar Nala meeting.   The  relevant extract  from his notes of the speech is : "Sharma and  Naik had  become  rich by corruption.. . Corruption thy  name  is Rikhabchand.  .  you have to cast your vote  after  thinking properly.   It  will  be decided in  this  election  whether people  here  will choose corruption or  a  social  worker." Counsel  for  the  appellants says  that  Kalankar  was  not specifically cross-examined in regard to his presence in the meeting.   It  is true that he was not confronted  with  the straight  question, that he was not present in  the  meeting and   was  falsely  deposing.   But  the  trend  of   cross- examination  unmistakably shows that the  crossexaminer  was questioning  his  presence  in the  meeting.   The  relevant cross-examination  elicits: "My notes show that  the  Chamar Nala meeting of 14-4-1971 was called by the Azad Bhim  Sena. Generally  we  short-hand reporters do not  attend  cultural functions or meetings held to celebrate birth  anniversaries or death anniversaries.  I cannot tell whether the names  of the  speakers who were to address the meeting  on  14-4-1971 were  earlier announced.  Nobody had told me nor did  I  ask anybody  whether Shri Jambusantrao Dhote was going to  speak at the meeting." His presence having been questioned, it was incumbent on the appellants to produce documentary  evidence in proof of his presence.  There is no doubt that if he were really present in the meeting, convincing police documentary evidence  will be available to prove his presence.   He  has admitted  that  for going to the meeting  a  conveyance  was given  to  him  by the Department.   No  evidence  has  been produced to prove this fact also. The  meeting was called to celebrate Ambedkar  Jayanti  day. Dhote  spoke in Hindi.  But in the whole of Dhote’s  speech, which  Kalankar has noted down in his note-book, there is  a solitary reference 845 to  the late B. R. Ambedkar and that too in Marathi.  He  is reported  to  have  said : "Today  we  are  celebrating  the Jayanti of a great man." (emphasis added).  The use of  tile mild  epithet  ’great’ (and that too only  once)  is  rather starting and unexpected of Dhote.  He had gone there with an eye  on vote-catching.  He should accordingly  have  devoted the  major part of his speech in recognising  the  qualities and  services  of  the  late  Dr.  B.  R.  Ambedkar  to  the downtrodden  and  thus winning their heart  and  mind.   The probability  is  that he would have merely  alluded  to  the aspect  of  election from the side-lines.   But  his  entire speech  as recorded by Kalankar is devoted to election.   It is  highly improbable to expect that from a  shrewd  speaker like  Dhote.  It creates misgivings in our minds  about  the presence  of Kalankar in the meeting.  Again,  Kalankar  has admitted in his cross-examination that "Shri Dhote’s  speech is  always  systematic and there is no  incoherence  in  it. "Yet when one specific incoherent portion in Dhote’s  speech as recorded by him was pointed out to him, he admitted  that the  said  portion does not fit in with what  precedes  and- succeeds  it.  Dhote is recorded to be- speaking  about  the poverty of the people.  In that context he said that "in the meeting  at  Lakarganj, Chief Minister Vasant Rao  Naik  had said  that  they are poor who have committed sins  in  their past life.  This is a humiliating statement.  No sooner,  he said  so,  people raised slogans that  Chief  Minister  Naik should  go  away.  Chief Minister who talks of  ushering  in socialism  should disclose in which book it is written  that poverty  is the consequence of the sins of the  past  life."

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After  this  portion the incoherent portion  begins  :  "You should  consider how Rikhabchand Sharma and Vasant Rao  Naik can usher in socialism.  When the whole country was fighting for  independence, Sharma Ji was doing the work of  puncture repairing.   There are others who are doing that  work,  but they  have not become capitalists.  Sharma Ji and Naik  have become  rich by corruption.  Sharma is rich.  Therefore,  we are poor.  Sharmji’s brain is fitted in reverse and he is  a candidate of the Congress." Thereafter the speech  continues : "Taking the aid of their wealth, Congress leaders like the Chief   Minister   Naik  and  Yashwant   Rao   Chauhan   are caricaturing the poor.  In this Republic those who have  got ill-earned income are rulers.  We are being looted and there is  a  fight  for power.  I can fight  for  the  same.   But poverty  cannot  be eliminated by such conduct  as  that  of Sharma."  Kalankar  has made this admission  in  his  cross- examination   It   is  correct  that  if   the   (sandwiched incoherent) portion is omitted, the continuity of the speech will remain and that the portion following the  (sandwiched) speech  fits  in the context of the portion  preceding  it". This  admission  also  casts doubt on his  presence  in  the meeting. Dhote has examined himself and Rajababu Ganpatrao  Mesliram. Dhote  has  denied that he had made  any  offending  remarks against Rikhabchand Sharma which Kalankar attributed to  him in  his  notebook.  Let us keep aside his denial for  he  is interested  in  denial.  But  Rajababu  Ganpatrao  Meshram’s evidence  cannot be overlooked.  According to  Kalankar,  he presided  over  the  meeting.   He  has  deposed:  "Ambedkar Jayanti  falls on 14th of April.  On 14th April,  a  meeting was  held in Chamar Nala locality.  This meeting was  called by  Azad Bhim Sena in connection with the Ambedkar  Jayanti. I presided over 846 this meeting" He said that the photograph of Dr.B.R.Ambetker and  Buddha  were  placed on the dais, and  that  they  were garlanded.  According to him, Ajabrao Ingle spoke about  the Bauddha  community  and Dr. Ambedkar.   The  other  speakers dwelt on the work (A Dr. Ambedkar for the labourers.  In his cross-examination  on  behalf  of  Rikhabchand  Sharma,   he admitted  that Dhote also spoke about the election.  In  his cross-examination on behalf of the appellants, he said  that Dhote  first spoke, on the problems of labour, then on  Di-. Ambedkar  and  in the concluding part of Ms speech  be  said that  he was standing as a candidate in the  election.   The High  Court appears to have believed his evidence.  He  does not seem to be an interested witness.  He has stood the test of cross-examination.  There appears to be no reason why  we should not believe his testimony’. It is a curious feature of this case that neither during the election  nor  after  the election there was  a  whisper  of protest  by anyone including Rikhabchand Sharma against  the alleged  commission  of corrupt  practices.   His  statement issued after his defeat was published in the Nagpur Times of 23-4-1971.   Even  there he does not  complain  against  the commission of corrupt practices by Dhote and his supporters. The  High  Court  did  not  consider  it  safe  to  rely  on Kalankar’s  evidence.  Its view is bottomed on  appreciation of  evidence based oil the credibility of the witness.   For the  reasons already discussed, we are unable to  hold  that the  High  Court  has gone wrong in its view.   It  has  not overlooked  any material feature in the evidence.   Nor  can its view be said to be perverse. Shesh  Rao  Kambale has recorded in short-hand  the  Marathi speeches  of  Dhote  in  the  Ganji  Peth,  Maska  Sath  and

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Kasturchand Park meetings.  In the Ganji Peth meeting  Dhote is  reported  to  have  said :  "Bhrashtachar  thy  name  is Rikhabchand.. . . . you should not cast your vote in  favour of  fallen-conduct (Bhrashtachar) and if you do not want  to elect  me, you may vote for other candidates.  Do  not  vote for  a man of fallen-conduct (bhrashtachari).  Do not  allow it  to be proved that you are companions  of  fallen-conduct (bharashtachar)."’ Counsel for the appellants says that this portion of Dhote’s speech makes out a corrupt practice under s. 123(4).  We are reluctant to take that view.  It is  well to remember that it is one of those flourishes or hyperboles which are the common stock-in-trade of election speakers  to exploit the emotions of the audience, and to argument  their popular  support.   Election speeches should  be  understood broad-mindedly,  not literally.  Election speakers often  do not mean what they say, and the audience generally does  not take  them by their words.  Even  literally,  "bhrashtachar" and "bhrashtachari" will not inevitably establish a  corrupt practice.   "Bhrashtachar" is a compound Sanskrit word.   It is   compounded  of  "bhrashta"  and  "achar".    The   word "bhrashta"  is derived from the root "bhransh" which  means, inter alia, ’fallen’. [sir MonierMonier-Williams: A Sanskrit English  Dictionary  1956 Edn. p. 769).   So  "Bhrashtachar" means,  inter alia, ’fallen-conduet’;  .(compare  Kalidasa’s phrase,   in   the   Meghaduta       (fallen    old leaves). "Bhrashtachari" will also mean a ’man of fallen conduct’. 847 The  High Court has given a uniform meaning of  ’corruption’ to the word bhrashtachar’ in the reported speeches of Dhote. It  appears to us from the context of the Ganji Peth  speech that  Dhote might have used the word ’bhrashtachar’  in  the sense  indicated by us.  In any case, the context  does  not plainly exclude this innocuous interpretation.  It is  well- known  that  a  person who takes liquor, etc.  is  even  now regarded  by  the common folk as a ’bhrashtachari’.   So  it cannot be said that the aforesaid portion of Dhote’s  speech is  susceptible of one and only one construction which  will establish  a corrupt practice.  And Dhote cannot be  put  in peril on an ambiguity. In  the Maska Sath meeting Dhote is reported to have said  : ’This  is  a war between truth and power.  We  have  to  see whether  truth wins or power wins.  We have to  see  whether truth wins or power loses, whether falsehood wins, or  truth wins.   We  have to see whether corruption  wins  or  purity wins."  By  no  stretch and strain of  these  words,  it  is possible  to  make out a corrupt practice.  In  this  speech Dhote  dose not in our view make, any statement of  fact  in relation   to   the,  personal  character  or   conduct   of Rikhabchand Sharma. In  the Kasturchand Park meeting Dhote is reported  to  have said:  "In the Chitra Talkies meeting the Chief Minister  of Maharashtra,  his discipiles, Mandani or Sukhadani had  said that  Jambuwantrao Dhote would be buried seven patals  deep. In democracy the language of burying seven patals is  spoken and that also by the Chief of a State.  What is the  meaning of  this?" As regards Rikhabchand Sharma he is  reported  to have  said: "You know his achievements and his capacity.   I do  not wish to speak anything about him." This speech  also does not amount to a corrupt practice. The  police  witnesses  have said that  they  used  to  send transcribed  summaries  of their notes of  speeches  to  the Maharashtra  government at Bombay.  An application was  made on behalf of the appellants in the High Court for  summoning the appropriate offirers to produce those summaries, for  it was said that they would corroborate these; witnesses.   The

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High  Court rejected the application because it  appears  to have been made, at a late stage in the course of  arguments. An  application  has been made to the same  effect  in  this Court also.  We do not think that it will be proper to allow the application for various reasons.  Firstly, Kalankar said in  his examination-in-chief that full reports of the  spee- ches  were  sent  to the Government at Bombay,  but  in  his cross-examination  he  admitted that only summaries  of  the speeches were sent.  Shesh Rao Kamble has no doubt uniformly said that only the summaries were sent.  But in view of  the statement  of  the former witness we do not  feel  reassured that only summaries were sent.  Secondly, the mere admission of  summaries in evidence at this stage will not  avail  the appellants, A number of police witnesses from Nagpur as well as from Bombay will have to be summoned to give evidence.  A numbei,  of  documents, especially the  dispatch  registers, %ill  have to be admitted in evidence to  ascertain  whether full  reports  or  summaries were sent  to  Bombay.   It  is relevant to mention that Dhote has accused the witnesses  of making  interpoliations in their note-books.  It is  neither proper  prudent to launch an enquiry of such a magnitude  at this stage, 848 Thirdly,  as  regards  the  reported  speeches  of   Pundlik Masurkar and Satya Narain Sharma, we have already held  that they  were not made with the consent of Dhote.   As  regards the speeches of Dhote, we have earlier held that one of them is not admissible in evidence, and three others do not  make out  a  corrupt  practice.  As  regards  the  remaining  one recorded  by  Kalankar in the Chamar Nala meeting,  we  have earlier  expressed doubt about his presence in the  meeting. So summaries will not advance the case of the appellants. it will remain as it is now.  In short, it will be a mere waste of  time to summon them.  The High Court has  exhibited  not only  extracts from the reported speeches of Dhote  but  has also  admitted  the  full reports of his  speeches.   It  is argued  on  behalf of the appellants that the  full  reports establish  other instances of the pleaded  corrupt  practice against  Dhote.  The High Court was also addressed  on  this aspect.  It did not accept the. argument.  Nor can we.   The other  instances  were  not pleaded in  the  petition.   The appellants  did  not  seek  to amend  the  petition  by  in- corporating  those instances.  Dhote got no  opportunity  to deny  them  or  to disprove them.  He did  not  even  cross- examine   the  police  witnesses  with  respect   to   those instances.  He confined his cross-examination mainly to  the instances pleaded in the petition.  Taking notice of the new instances will cause serious prejudice to him. Issue No. 9: It is alleged that in the Kasturchand Park meeting Dhote and his  followers distributed copies of the weekly  Gram  Sewak which  was published by Atal Bahadur Singh with the  consent of  Dhote.   Dhote has denied that he had consented  to  its publication.   He has also denied that he and his  followers distributed  the  Gram Sewak in the meeting.   There  is  no doubt that the Gram Sewak contains an attack on the personal character of Rikhabchand Sharma and falls within the grip of s.  123 (4) of the Act.  But the High Court has  found  that neither Dhote nor his followers distributed it.  It has also found  that Atal Bahadur Singh did not publish it  with  the consent  of Dhote.  Accordingly the issue has  been  decided against the appellants. Satya Narain Sharma, a witness for Dhote, has admitted  that the copies of Gram Sewak were not distributed free but  were sold on the road running from the Kasturchand statue to  the

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Assembly   building   after  the  close  of   the   meeting. Similarly,  another  witness of Dhote, B.  M.  Gaikwad,  has admitted  that  he saw copies of the Gram Sewak  being  sold outside the Kasturchand Park.  So the important questions to be decided are: (1) whether the Gram Sewak was published  by Atal  Bahadur Singh with the consent of Dhote;  (2)  whether Dhote  himself distributed the copies of the Gram Sewak-  in the   meeting;  and  (3)  whether  any  of   his   followers distributed the copies of the Gram Sewak in the meeting. Re. (1) There  is  no direct evidence to prove,  that  Atal  Bahadur Singh  published the Gram Sewak with the consent  of  Dhote. Consent,  however. may be inferred from circumstances.  (See Sheopat Singh v. 849 Harish Chandra(l) and R. M. Seshadri v. G. Vasantha  Pai(2). Admittedly,  Atal  Bahadur Singh is the editor of  the  Gram Sewak.   He has been examined by Dhote.  He has stated  that he  had  published  the  offending Gram  Sewak  on  his  own initiative.  He has denied that it was published by him with the  consent of Dhote.  He has also stated that 1000  copies of  the Gram Sewak were printed on his order by  Sri  Sharda Mudranalaya.  He had sent out of Nagpur 200 copies for sile; about, 180 complimentary copies were sent Lo the advertising agencies; 200 copies were sent to the book stalls in Nagpur; 200  copies were given to hawkers for sale.  Out of the  400 copies  given  to  the book-stall keepers  and  hawkers,  70 copies were returned to him.  He received the price for  330 copies  sold  by them.  He has stated  in  cross-examination that  he maintains accounts relating to the  publication  of the Gram Sewak.  He further said : "If I am asked to produce these  tomorrow, I am willing to do so." No such demand  was made on behalf of the appellants.  His evidence supports the evidence of Satya Narain Sharma that the Gram Sewak was sold and  not  distributed free outside the  meeting.   There  is nothing in- his evidence to discredit his testimony.  He has been  believed by the High Court.  So we share the  view  of the  High  Court  that it was sold by  hawkers  only.   Atal Bahadur  Singh has admitted that he had been canvassing  for Dhote in his ward.  He has also admitted that he had  pasted certain posters in his ward soliciting support for Dhote  at his expense.  He has also admitted that he had been  working with Dhote in certain associations and in the Maha  Vidarbha Andolan.  His association with and his canvassing for  Dhote could  not establish that the Gram Sewak was published  with the  consent of Dhote.  Evidence shows that when  Dhote  was canvassing  from  door  to door in the ward  in  which  Atal Bahadur Singh resides, he was not accompanied by the latter. This  will  show  that the latter was  working  on  his  own initiative.   We have believed his evidence that the  copies of the Gram Sewak were sold and not distributed free. it  is hardly  probable that if Dhote had given his consent to  the publication  of the Gram Sewak, it would have been sold  and not distributed free.  The sale suggests want of consent  of Dhote.  So we agree with the High Court that the  appellants have failed to prove the publication of Gram Sewak with  the consent of Dhote. Re. (2) To  prove  distribution of the copies of Gram Sewak  in  the meeting as alleged in the election petition, the  appellants have examined Nepat Rao, Janak Lot, Namdeo Rao, Govind Marot Rao  and Marot Rao (one of the appellants).  Nepat  Rao  and Namdeo Rao have stated that Dhote, Atal Bahadur Singh and B. M.  Gaikwad  had distributed the copies of the  Gram  Sewak. Both  of them also say that Dhote gave one copy of the  Gram

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Sewak  to them.  Marot Rao says that Dhote and Atal  Bahadur Singh  distributed  the copies of the Gram  Sewak.   So  his evidence  is not material in regard to the  distribution  of the Gram Sewak by Dhote.  Nepat Rao is the General Secretary (1) A.I.R. 1960 S.C. 1217. (2) [1969] 2 S.C.R, 1019. 850 of  the  Lal Bahadur Sastri Dal.  Laxminarayan (one  of  the appellants)  is  the  President of the Dal.  He  is  also  a member of the Yuvak Congress, an affiliate of Congress  (R), which  had sponsored Rikhabchand Sharma’s  candidature.   He has   also  admitted  that  he  had  been   canvassing   for Rikhabchand Sharma till April 15, 1971.  Namdeo Rao is  also a  member of the Congress (R).  He has admitted that he  had been  canvassing  for  Rikhabchand  Sharma.   He  has   also admitted  that  he  was the counting  agent  of  Rikhabchand Sharma.  Janak Lal appears to be a chance witness.  He  says that  he  went to the Sitabadi market at about  9  p.m.  for purchasing a clutch wire for his motor-cycle and on his  way back  be went to the meeting in -the Kasturchand  Park.   Re has  admitted that ordinarily the Sitabadi market is  closed at  8.30 p.m. He has admitted that after the meeting he  had never  spoken  about the distribution of the Gram  Sewak  to Rikhabchand  or  to  the appellants till  the  date  of  his evidence.  His presence in the meeting, acoordingly, is very doubtful.  Marot Rao has denied that he had been  canvassing to.- Rikhabchand Sharma, but he has admitted that be went to Umred  to  see  how the polling was  proceeding  as  he  was interested in the success of the Congress candidate.   Nepat Rao,   Nemdeo  Rao  and  Marot  Rao  are  evidently   highly interested witnesses.  It is surprising that no  independent witness  has  been examined by the appellants  in  order  to prove  distribution of the Gram Sewak by  Dhote,  especially because  the  meeting  was attended by  a  large  number  of important reason.    It  has  come  in  evidence  of   other witnesses of the appellants   that the meeting was addressed by Dhote from an improvised dais or     a  truck  which  was used  in the procession before the meeting. These  witnesses were  cross-examined about the nature of the dais.  None  of them stated that the dais was improvised on the truck.   Had they really attended the meeting, they could not have failed to  notice  this striking improvisation.  Dhote  has  denied that  he  had  distributed the copies  of  the  Gram  Sewak. Having  regard to the nature of the appellants evidence,  we are  in entire agreement with the High Court that they  have failed to prove the distribution of the Gram Sewak by  Dhote in the meeting. Govind  Marot Rao has deposed that B. M. Gaikwad  had  given him a copy of the Gram Sewak in the Chitnis Park from  where the  procession  started  before  the  meeting.   Now,   the distribution  of the Gram Sewak in the Chitnis Park  is  not pleaded  in  the petition.  D. M. Gaikwad was  the  election agent of Dhote.  A corrupt practice committed by an election agent avoids the election.  It is not necessary to prove the consent  of  the returned candidate.  If B. M.  Gaikwad  had really  distributed  the  copies of the Gram  Sewak  in  the meeting  or in the Chitnis Park, it is difficult to  believe that  the appellants would have failed to make a mention  of it  in  their  election petition.  Govind Marot  Rao  is  an active  member  of  the Congress (R).   Admittedly,  he  had canvassed  for  Rikhabchand  Sharma.   The  High  Court  has &believed  him, and we find no reason to disagree  with  the High Court. Re. (3) We  have already held that the High Court  rightly  rejected

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the  evidence of the appellants, witnesses in regard to  the distribution of the 851 Gram  Sewak by Dhote in the meeting or anywhere else.   That being so, we do not accept their evidence of distribution of copies  of  the  Gram Sewak by Atal  Bahadur  Singh,  B.  M. Gaikwad and others in the meeting. We agree with the High Court that the appellants have failed to prove issue No. 9 in their favour. The  last  argument  of the appellants is  about  the  costs awarded  by  the High Court to Dhote  while  dismissing  the election petition.  The High Court’s order is : "I,  dismiss the  petition  with  costs  with  the  direction  that   the respondent  No. 2 (Dhote) will be entitled to his  costs  at the  scheduled  rate of Rs. 400/- per day  for  52  hearings front  the petitioners and that respondent No. 11  will  get Rs. 1500/- a.-, his costs payable by the petitioners." Counsel for the appellants points out that Rs. 400/- per day is  prescribed  by the Bombay High Court Rules for  fees  of counsel  and  the High Court has awarded costs to  Dhote  in accordance  with  that rule.  He has also pointed  out  that counsel who appeared for Dhote and respondent No. II did not file a certificate in the High Court in proof of payment  of any fees to them.  There is also no other evidence in  proof of  payment  of fees to them.  The opposing counsel  do  not contradict  this  statement of counsel for  the  appellants. Accordingly  we are proceeding on the assumption that  there is no evidence on the record to show that any fees were paid to counsel for Dhote and respondent No. 11. Section  96 provides that "the reasonable expenses  incurred by  any parson in attending to give evidence may be  allowed by the High Court to such person and shall, unless the  High Court  otherwise  direct-,,  he deemed to  be  part  of  the costs." Section 119 deals with costs in the cause’ It  reads :  "Costs  shall be in the discretion of the  High  Court  : Provided that where a petition is dismissed under clause (a) of  section 98, the returned candidate shall be entitled  to the  costs  incurred by him in contesting the  petition  and accordingly the High Court shall make an order for costs  in favour of the returned candidate." (emphasis added). It  may be observed that the word ’incurred’ occurs both  in section  96  and section 119.   ’Incurred’  means  "actually spent".  The petition was dismissed by the High Court  under cl.  (a) of s.98. Accordingly, it was incumbent on the  High Court  to award costs to Dhote.  But he is entitled to  only such  costs  as  are shown to have  been  incurred  by  him. Admittedly,  there  is  no proof of payment of  any  fee  to counsel  by Dhote.  So he is not entitled to the  amount  of Rs.  400/- per diem awarded by the High Court.  However,  he will be entitled to any other costs which are shown to  have been incurred by him. Having  regard  to the foregoing discussion, the  appeal  is allowed only with respect to counsel’s fees awarded to Dhote and  the respondent No. 1 1 by the High Court.  As  for  the rest,  the appeal is dismissed.  Dbote will be  entitled  to such  costs  as have been incurred by him in this  Court  as well as in the High Court. V.P.S.                        Appeal allowed re : costs. 852