10 September 1970
Supreme Court


Case number: Appeal (civil) 1094 of 1969






DATE OF JUDGMENT: 10/09/1970


CITATION:  1971 AIR 1295            1971 SCR  (2) 118  CITATOR INFO :  F          1971 SC1348  (13)  R          1973 SC 157  (25)  F          1973 SC 717  (14)  R          1975 SC 308  (14,50)  RF         1975 SC2299  (120,495)  R          1979 SC 154  (36)  RF         1985 SC  89  (16)  D          1985 SC1133  (16,21)  R          1987 SC1748  (20)

ACT: Representation  of the People Act, 1951, ss. 77, 123(b)  and s.  119--Expenditure  in  excess  of  prescribed  limit   by candidate’s  party  or  friends  land  others  without   his authority--If  contravention  of s.  77-If  appellate  court bound to grant costs to successful party. Election  petitions-When  Supreme Court may  interfere  with findings of fact-Burden of proof-When inference may be drawn in absence of direct evidence.

HEADNOTE: The appellant challenged the first respondent’s election  to the  Lok  Sabha  in 1967 mainly on the ground  that  he  had committed  the corrupt practice under Section 123(6) of  the Representation  of  the  People Act, 1951, in  that  he  had incurred  or  authorised  the incurring  of  expenditure  in excess  of  the limit prescribed under Section 77.   It  was alleged, interalia, that the first respondent was put up  by one  of the wealthiest business houses in the country  which owned or controlled a large number of companies; during  the election campaign vast material and human resources of these companies were drawn upon by the respondent.  It was alleged that  as against the limit of Rs. 25,000 prescribed for  the constituency under s. 77, several lakhs of rupees were spent by  him  during  the election campaign on  the  printing  of posters,  pamphlets, etc., entertainment, the use  of  about 200  jeeps and cars, the engagement of over  three  thousand employees of the various companies and for their maintenance and  travelling  expenses, and on campaign  meetings,  trunk calls, etc.  The appellant’s election petition was dismissed by  the High Court, etc.  ’I-he to this Court under  Section 116A of the Act,



HELD  : Dismissing the appeal : The appellant had failed  to establish that expenditure in excess of the prescribed limit was incurred by the first respondent or with his consent and authority or that of his election agents. (i)It  is not sufficient for the petitioner to  prove  me- rely that the expenditure more than the prescribed limit had been  incurred  in connection with the  election.   He  must further prove that the excess expenditure was incurred  with the consent or under the authority of the returned candidate or  his  election agent.  The expenditure  incurred  by  the returned candidate’s party or by his friends or  supporters, or  by  the  enemies of his  rival  candidates  without  his consent  or  authority cannot be taken  into  consideration. [127 B] Rananjaya  Singh v. Baijnath Singh and Ors. [1955] 1  S.C.R. 671; Ram Dayal v. Brijral Singh and Ors. [1970] 1 S.C.R. 530 and Mubarak Mazdoor v. Lal Bahadur, 20 E.L.R. 176;  referred to. (ii)This Court will not ordinarily go behind the finding of fact  reached by the trial judge unless there  is  something basically  wrong  in the conclusions reached by him  or  the procedure adopted by, him.  This is not  a rule of law but a rule of prudence. [126 B] 119 Amar Nath v. Lachinan Singh & Ors., Civil Appeal No.  717/68 decided  on  23-8-1968  and Jagdev Singh  v.  Pratap  Singh, A.I.R. 1965 S.C. 183; referred to. (iii)The burden of proving the commission of a  corrupt practice which is pleaded is on the petitioner and he has to discharge that burden satisfactorily.  In doing so he cannot depend on preponderance of probabilities.  The evidence must be  cogent  and  conclusive.  It is  true  that  many  times corrupt  practices  at election may not  be  established  by direct   evidence  and  the  commission  of  those   corrupt practices may have to be inferred from the proved facts  and circumstances  but the circumstances proved must  reasonably establish that the alleged corrupt practice was committed by the returned candidate or his election agent. [126 H] Dr.   M. Chenna Reddy v. V. Ramchandra Rao and  Anr.,  Civil Appeal No. 1449/68 decided on 17-12-1968, referred to. (iv)If  the court comes to the conclusion that an  item  of expenditure  has been suppressed in the return  of  election expenses, the mere fact that there is no sufficient evidence about the amount that must have been spent is no ground  for ignoring the matter.  It is the duty of the court to  assess all expenses as best it can and though the court should  not enter into the region of speculation or merely try to  guess the amount that must have been spent, it would generally  be possible  to  arrive  at  an  amount  of  expenditure  on  a conservative basis and where it is possible to arrive at any such  estimate, such estimated amount should be held as  not shown by the candidate in his election account. [128 H] Shivram  Sawant Bhonsale v. Pratap Rao Deorao  Bhonsale,  17 E.L.R. 37.     referred to. (v)Although the trial court, under Section 119 of the  Act is  under compulsion to award cost to the successful  party, there is no provision in the Act which compels the appellate court to award costs in an election appeal. [135 F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1094  of 1969. Appeal  under s. 116-A of the Representation of  the  People



Act, 1951 of the judgment and order dated February 17,  1969 of  the Rajasthan High Court in Election Petition No.  4  of 1967. A.   S.  R. Chari, G.  V. Pai, H. J. Thakkar,  Janendra  Lal and B.    R. Agarwala, for the appellant. L.M.  Singhvi,  S.  S. Khanduja, M.  P.  Khaitan  and  P. Krishna Rao, for respondent No. 1. A. S. Bobde and A. G. Ratnaparkhi, for respondent No. 2. The Judgment of the Court was delivered by Hegde, J.-This appeal raises the question as to the validity of the election of Mr. R. K. Birla to the Lok Sabha, in  the General   Election   held  in  1967,  from   the   Jhunjhunu constituency  in the State of Rajasthan.  The  election  for that constituency was held 120 in  the  month of February 1967.  The  notification  calling upon  the constituency to elect one member to the Lok  Sabha was published on January 13, 1967.  The last date for filing the nomination was January 20, 1967.  Several persons  filed their  nominations  but  some out of  them  withdrew  later. Eleven persons including Mr. R. K. Birla (respondent No.  1) and Mr. Morarka Radheshyam (Respondent No. 2) contested  the election.   The  polling took place on February 15,  18  and 20th.   Counting  commenced on the 21st of  that  month  and completed  on the 23rd on which date results were  declared. According to the declaration made by the returning  officer, respondent  No. 1 secured 1,50,546 votes and respondent  No. 2,  1,04,023.   It is not necessary to refer  to  the  other candidates in the course of this judgment.  Respondent No. 1 was declared elected. The  appellant who is a voter in the Jhunjhunu  constituency and  a supporter of Mr. Morarka challenged the  election  of the  repondent  under  s. 81 of the  Representation  of  the People  Act, 1951 (which will hereinafter be referred to  as the  Act)  on various grounds.  His petition was  tried  and dismissed  by  a single judge of the Rajasthan  High  Court. Thereafter he has brought this appeal under S. 11 6A of  the Act. The  election of respondent No. 1 was challenged on  various grounds.   It  was  alleged that he  had  committed  corrupt practices  coming under S. 123(1) (bribery),  123(4)  (false statements as regards the personal character and conduct  of respondent No. 2), 123(5) (hiring or procuring vehicles  for the  free conveyance of electors) and 123(6)  (incurring  or authorising the incurring of expenditure in contravention of s. 77).  The respondent denied the allegations made  against him.   At the trial of the case most of the grounds  alleged in support of the petition were not pressed.  At present  we are only concerned with the allegation that respondent No. 1 had incurred or authorised the expenditure in  contravention of S. 77 in connection with his election.  Section 77 of the Act reads :               "Amount  of  election  expenses  and   maximum               thereof:               (1)   Every  candidate at an  election  shall,               either  by himself or by his  election  agent,               keep  a  separate and correct account  of  all               expenditure  in connection with  the  election               incurred  or  authorised  by  him  or  by  his               election agent between the date of publication               of  the notification calling the election  and               the date of declaration of the result thereof,               both dates inclusive.               (2)   The    account   shall   contain    much               particulars as may be prescribed;



             121               (3)   The total of the said expenditure  shall               not exceed such amount as may be prescribed." Section 123(6) declares that incurring or authorising of ex- penditure  in contravention of s. 77 is a corrupt  practice. The  maximum  amount  of  expenditure  prescribed  for   the Jhunjhunu  constituency  was Rs. 25,000/-.  The  return  of, respondent  No.  1  showed that  his  total  expenditure  in connection  with the election was Rs. 16,380.96 P. It it  is shown   that  the  total  expenditure  incurred  either   by respondent  No.  1 or his election agent or by  others  with their consent or under their authority exceeded Rs. 25,000/- then  the  election of respondent No. 1 must be held  to  be void. In  the  election  petition  the  petitioner  alleged   that respondent  No. 1 was an independent candidate; and that  he was  put  up by the House of Birlas, one of  the  wealthiest business houses in the country who own and/or control and/or manage  several companies.  It was further  alleged  therein that  respondent  No. 1 himself was a  man  of  considerable means.   According  to the petitioner during the  course  of election  compaign many top Executives of several  companies owned  or controlled by the House of Birlas were brought  by respondent  No. 1 to the constituency and they  lived  there for  over a month and worked for respondent No.  1.  Several leading   members   of  the  Birla  family   including   Mr. Ghanashyamdas  Birla,  Mr. Madhya Prasad Birla,  Mr.  K.  K. Birla  and others stayed in the constituency  and  canvassed for respondent No. 1. He further alleged that vast  material and  human  resources of several companies of the  House  of Birlas  were  drawn  upon by the respondent No.  1  for  his election  compaign.  Besides the Chief  Executive  Officers, hundreds  of  other  Executive  Officers  and  employees  of several companies of the   House of Birlas were also brought by respondent No. 1 from several places to the  constituency for campaigning in his favour.  The petitioner alleged  that several  lakhs of rupees were spent by respondent No.  1  in connection   with   his  election.    Proceeding   to   give particulars  about the expenditure incurred he  stated  that the   respondent  No.  1  got  printed  lakhs  of   posters, pamphlets,  leaflet-, and cartoons and got them  distributed throughout the constituency and in that connection he  spent about  2  lakhs of rupees; he made a film of  some  meetings held  and  exhibited  that  film in  various  parts  of  the constituency and in that connection spent about Rs, 30,000/- ;  he  employed a singing party which was taken by  a  motor truck  from village to village for the purpose  of  reciting songs  and  performing bhajans and for  that  purpose  spent about    Rs, 3 000/-; he used about 200 jeeps and  cars  for his  election  campaign and in that connection  incurred  or authorised  an  expenditure of Rs. 6,00,000/-; for  some  of these jeeps (which were not hired) he incurred or authorised an expenditure of about 9--L 235 Sup CI/71 122 Rs.  30,000/-  as drivers’ salaries;  he  requisitioned  the services of about 3,000 employees of the Birla concerns  and for their maintenance and travelling expenses incurred  more than  Rs. 10 lakhs; he had 150 officers in the  constituency and  for their maintenance spent about Rs. 75,000/-; he  set up 80 messes at different places for feeding his  canvassers as well as the electors and for that purpose he spent  about Rs.  2 lakhs; he organised nearly 225 meetings and for  that purpose incurred an expenditure ,of Rs. 33,750/-; for  trunk calls  in connection with the election, he spent  about  Rs. 5,000/-;  for  the repairs of the jeeps used  in  connection



with the election spent about Rs. 50,000/- and lastly  spent about  Rs.  75,000 for hiring jeeps.  Some of the  items  of expenses  mentioned above were not pressed at  the  hearing. We  shall not refer to them in the course of this  judgment. We  shall  ,confine  our attention to only  those  heads  of expenditure which were pressed for our acceptance. Before  we  proceed to consider the merits of the  case,  it is  .necessary to Mention that in the memorandum of  appeal, the  appellant had urged that in the High Court he  was  not given  reasonable opportunity to put forward his  case.   He complained that his applications for examination of  certain witnesses  on commission were, improperly rejected;  he  was not  given sufficient opportunity to procure the  attendance of  the witnesses and lastly several documents  produced  by him  in support of his case were improperly rejected.   When the  hearing of the appeal was taken up we suggested to  the learned Counsel for the appellant, Mr. A.    S. R. Chari  to first  deal with the plea that the appellant was  not  given reasonable  opportunity  to prove the case pleaded  by  him. After  taking up that plea and arguing the appeal for  some- time Mr. Chari informed us that he would not press that part of  his  case  as  he did not want the  case  to  be  either remanded  or additional evidence taken in view of  the  fact that the next General Election is not far off.  He  informed us  that  he  would argue the appeal on  the  basis  of  the evidence on record.  At this stage it may also be  mentioned that  no application had been made in this Court for  taking additional evidence.  In view of the concession made by  Mr. Chari,  we will confine our attention to the merits  of  the case on the basis of the evidence on record. Mr. Chari’s case was that Mr. Morarka had incurred the wrath of the members of the family of Mr. Ghanshamdas Birla due to the  fact that as Chairman of the Public Accounts  Committee of  the  Parliament he had dug up many  skeletons  from  the cupboards  of  some  of  the  Birla  concerns.   It  may  be mentioned  at this stage that Mr. Morarka  was  representing the  Jhunjhunu  constituency in the Lok Sabha from  1962  to 1967 and earlier as well and for a considerable time he  was the Chairman of the 123 Public  Accounts Committee.  The further case of  Mr.  Chari Was  that  because of the hostility of the  members  of  the Brila family towards Mr. Morarka, the members of that family sponsored the candidature of respondent No. 1 who was one of their top Executives, he being the Chairman of Shri Digvijay Woollen  Mills  Ltd.,  Jamnagar, a  Birla  concern  and  the President of a Chemical Company at Porbundar which is also a Birla concern.  According to the appellant, respondent No. 1 was  really  an  independent  candidate  but  in  order   to facilitate  him to exercise his money power as well  as  the money  power of the Birla concerns, he posed as a  Swatantra party candidate.  It was said that a great deal of money was spent  by  the members of the Birla family and also  by  the companies under their control to further election  prospects of  respondent  No.  1. Mr.  Chari  further  contended  that respondent  No. 1 in agreement with the several  members  of the  Birla  family and some of the top  officials  of  Birla concerns had devised a plan for spending money in connection with the election and the entire expenditure was incurred in accordance with that plan. At the very outset, we may mention that respondent No. 1  is not  a  member  of Mr. G. D. Birla’s  family  though  it  is established that he is one of their top Executives.  It also appears from the evidence that several members of the  Birla family   as  well  as  other  industrialists   were   keenly



interested  in the success of respondent No. 1. It may  also be,  as contended on behalf of the appellant that they  were keen  on  defeating  Mr. Morarka.   Even  according  to  the appellant the members of Birla family had both the means  as well  as  the  cause to spend for  furthering  the  election prospects of respondent No. 1. But the real question for our decision  is whether any expenditure in connection with  his election was incurred by respondent No. 1 or by his election agent  or by others with his consent or under his  authority in  excess of the amount shown in his return and if so  what that  amount is ? The expenditure incurred by the  Swatantra Party or other friends or supporters of respondent No. 1  or by  the  enemies  of  Mr. Morarka  without  the  consent  or authority   of  respondent  No.  1  cannot  be  taken   into consideration as the law now stands. In  the  election petition, the petitioner took  the,  stand that  respondent No. 1 was an independent candidate. it  was not suggested therein that he was only nominally a Swatantra candidate  and that he used the Swatantra party as a  shield to  cover the enormous expenditure that he planned to  incur during the election campaign.  In fact in the election peti- tion  there is no reference to the Swatantra Party.   It  is now  established and it is not denied that respondent No.  1 was a Swatantri party candidate.  His symbol in the election was  the "Star", the symbol assigned to the Swatantra  party by the Election Commis- 124 sion.  The plea of the petitioner that in truth and reality, respondent  No.  1 was an independent  candidate  cannot  be accepted.   The charge that during the election  expenditure was  incurred  by  various  persons  in  accordance  with  a preplanned design devised by respondent No. 1 and others was also  not pleaded in the election petition.  That  ingenuous contention appears to have also been put forward only with a view  to  make it appear that expenditure  incurred  by  the Swatantra  party or by others in connection  with  repondent No.  1’s  election was all done with the consent or  at  any rate  under the authority of respondent No. 1. Some  support for  this contention was tried to be sought from  Ex.   P.W. 14/5  and  Ex.   P.W.  42/6.   PW  14/5  is  a  letter  from respondent  No.  1 to Mr. M. P. Birla.  It is  dated  30-12- 1966.  In Ex.  PW 14/5 (the genuineness of this letter is in dispute) respondent No. 1 is shown to have written to Mr. M. P. Birla as, follow:               "  I  have been informed that Morarka  was  in               Gudda constituency yesterday.  He was  touring               with  4  jeeps.  Dedisinghji  and  Bhimsinghji               have  suggested  that  whenever I  go  to  the               constituency,  I  must also go at  least  with               four   jeeps,  if  not  more,  to  create   an               impression  on the public that I am in no  way               lacking in vehicles and publicity work against               Morarka.  SPK also informs me that Morarka has               given  5 jeeps to Sumitra, his  candidate  for               Jhunjhunu  constituency.  The same  number  of               jeeps   have   been   given   to   his   Gudda               constituency candidate.  He has also told that               each  candidate can hire further 3  jeeps  for               which  Morarka will pay the cost.   From  this               you will kindly find that he is all out to win               the  election.  It is also confirmed  that  in               Nawalgard he has given 5 jeeps to Mintre,  who               is his candidate.  In view of the fact that he               is  now using more number of vehicles than  in               the  last election we shall also have to  fall



             in  line  with  him, and,  therefore  all  our               friends    like   Debisinghji,    Bhimsinghji,               Raghuvirsinghji  and Madan Singhji  etc.  feel               strongly that we must also arrange to give  at               least 5 jeeps per constituency, if not more."               In  reply to that, letter Mr. M. P.  Birla  is               said to have written Ex. P-42/6.  That  letter               reads as follows               "I  am  in  receipt of  your  letter  of  30th               December    from   Jaipur   regarding,    more               requirements  of  jeeps.  I  have  checked  up               With-CACO  and it is not possible for them  to               arrange  any  jeeps.  Jitendra seems  to  have               given  you  wrong information.  I  am  however               negotiating with CACO to give a cash  donation               for  Rajasthan Swatantra Party and the  cheque               to  be sent through you.  I will let you  know               about this within a week.               125               As regards your further requirement of  jeeps,               you  write that 10115 jeeps can  be  delivered               immediately   by   the  Rajasthan   agent   of               Mahindra.  If this is so, then you please  get               these jeeps immediately in the account of  our               various  officers  and the finance  should  be               arranged  as per our decision in Pilani.   Mr.               Keshab Mahindra is out of Bombay and therefore               I  have not been able to contact him,  but  in               any  case,  as these jeeps  are  available  in               Rajasthan  for immediate use, I suppose  there               is  no  need  for me to  talk  to  Mr.  Keshab               Mahindra.               Durgaprasadji  is now reaching Pilani  on  the               8th  or  9th and you please consult  him  also               about our total requirement of jeeps.  I agree               with  you  that  we  should  not  lag   behind               Radhesyam  Murarka  in our  efforts.   I  also               understand  that  he is going to step  up  his               election efforts.               Shri R. K. Birla,           Yours sincerely,               Pilani,                         Sd/- MPB               c.c. Sri D. P. Mandelia, Bombay." While it is true that these letters, if they are genuine, as they  are  held to be by the trial court, do  indicate  that sometime  in December respondent No. 1 was contemplating  to secure large number of jeeps to match the number of vehicles used by respondent No. 2. But whether in fact he did so is a matter  for  proof.  But from this letter we are  unable  to spell out that there was any settled plan for financing  the election  campaign.   Our attention was not invited  to  any other  evidence to show that there was any settled plan  for financing the election campaign.  Our taken in the petition. It  is  no doubt true that it appears from the  record  that seven  jeeps were purchased by some persons who are said  to be  Birla  employees on the 18th and 19th of  January,  1967 through  one  Brijlal  Ram Gopal of  Jaipur.   There  is  no evidence  whatsoever to ’show that those jeeps were used  in connection  with  the  election.   Though  the   surrounding circumstances  do indicate that those jeeps might have  been purchased  through  Birla employees  for  election  purpose, those circumstances do ’not take the case beyond  suspicion. In  the absence of any proof as to their use we cannot  come to  any  conclusion on the basis of the  purchase  of  those jeeps. Before  proceeding to examine the evidence relating  to  the



various  items of expenditure said to have been incurred  in connection  with’ the election, it, is necessary to bear  in mind the 126 various  principles  evolved by this Court  to  be  followed while hearing an election appeal. Taking  into consideration the fact that a plea  of  corrupt practice  is  somewhat  akin to a criminal  charge  and  the further   fact  that  the  election  cases  are   tried   by experienced judges of the High Court, this Court  ordinarily does not go behind the findings of fact reached by the trial judge  who had the benefit of seeing the witnesses  examined before him unless there is something basically wrong in  the conclusions reached by him or the procedure adopted by  him. This  is not a rule of law but a rule of prudence.  In  Amar Nath v. Lachman Singh & ors.(1) this Court observed :               "We  have  already observed in more  than  one               decision  in  the present series  of  election               appeals that in the matter of appreciation  of               evidence  and  forming  of  conclusions   with               respect thereto, our normal approach would  be               to accept the findings of the trial judge  and               not  to upset the same unless it was shown  to               us that the trial judge had not considered all               the evidence in its proper perspective or that               his inferences were not supported by the  data               relied on.  We propose to follow the said rule               in  disposing  of this appeal.  We  must  also               bear in mind that the charge of commission  of               a corrupt practice has to be proved by  cogent               and  reliable evidence beyond  any  reasonable               doubt  and  that  such  a  charge  cannot   be               established    by   any    consideration    of               preponderance of probabilities." While making these observations the learned judges relied on the  decision of this Court in the case of Jagdev  Singh  v. Pratap, Singh(2) In  the  present  appeal we do not propose to  go  into  the question whether the evidence adduced by a petitioner in  an election   case  should  establish  the  case   beyond   any reasonable  doubt but suffice it to say that  that  evidence must be cogent and conclusive.  It is true that as  observed in  Dr.  M.  Chenna Reddy practice cannot be  equated  to  a criminal  charge  in all respects.  While the accused  in  a criminal  case  can refuse to plead and  decline  to  adduce evidence on his behalf and yet ask the prosecution to  prove its case beyond reasonable doubt such is not the position in an  election petition.  But the fact remains that burden  of proving the commission of the corrupt practice pleaded is on (1). Civil Appeal No. 717/68 decided on 23-8-1968. (2). A.I.R.1956 S.C. 183., (3).  Civil Appeal No. 1449/68 decided on 17-12-1968. 127 the   petitioner  and  he  has  to  discharge  that   burden satisfactorily.   In   doing  so  he    cannot   depend   on preponderance of probabilities. Courts do not set at  naught the verdict of the electorate except  on good grounds. Now coming to the corrupt practice of incurring  expenditure beyond the prescribed limit, in several decisions this Court has  ruled that it is not sufficient for the  petitioner  to prove  merely that the expenditure more than the  prescribed limit had been incurred in connection with the election,  he must  go further and prove that the excess  expenditure  was incurred  with  the consent or under the  authority  of  the returned  candidate  or his election  agent.   In  Rananjaya



Singh  v.  Baijnath  Singh and ors.(1)  this  Court  had  to consider  a  case where a proprietor of an estate  lent  the services of his Manager, Assistant Manager, 20 Ziladars  and their  peons  for canvassing on behalf of his son.   It  was proved  that  the  father was an old man  and  the  returned candidate  was helping his father in the management  of  his estate.   The question in that case was whether  because  of the  canvassing by those persons the returned candidate  had committed  the corrupt practice of engaging the services  of more  than  the  prescribed number  of  persons/and  further whether  the salary and wages paid to them should have  been included in computing the expenses incurred by the  returned candidate.  In that case there was no evidence to show  that the  services of those persons were either procured  by  the returned  candidate or his election agent nor was it  proved that their services were obtained with the consent or  under the  authority  of the returned candidate  or  his  election agent. This is what this Court observed in that case:               "There can be no doubt that in the eye of  the               law these extra persons were in the employment               of the father of the appellant and paid by the               father and they were neither employed nor paid               by  the appellant.  The case, therefore,  does               not  fall within s. 123(7) at all and if  that               be  so it cannot come within  section  124(4).               It  obviously  was  a  case  where  a   father               assisted   the  son  in  the  matter  of   the               election.  These persons were the employees of               the father and paid by him for working in  the               estate.   At  the request of the  father  they               assisted  son in connection with the  election               which strictly speaking they were not  obliged               to  do.   Was  the  position  in  law  at  all               different  from the position that  the  father               had  given these employees a holiday  on  full               pay  and they voluntarily rendered  assistance               to  the  appellant  in  connection  with   his               election.   We think not.  It is clear  to  us               that qua the appellant these persons were               (1)   [1955] 1 S.C.R. 671.               128               neither  employed nor paid by him.  So far  as               the  appellant  was concerned they  were  mere               volunteers  and the learned advocate  for  the               respondent    admits   that   employment    of               volunteers does not bring the candidate within               the  mischief  of the  definition  of  corrupt               practices  as  given in section  123(7).   The               learned advocate, however, contended that such               a construction would be against the spirit  of               the election laws in that candidates who  have               rich friends or relations would have an unfair               advantage  over a poor rival.  The  spirit  of               the  law  may well be an  elusive  and  unsafe               guide  and the supposed spirit  can  certainly               not  be given effect to in opposition  to  the               plain  language of the section of the Act  and               the rules made thereunder.  If all that can be               said  of  these statutory provisions  is  that               construed   according,   to   the    ordinary,               grammatical  and  natural  meaning  of   their               language,  they work injustice by placing  the               poorer  candidates,  at  a  disadvantage   the               appeal  must be to Parliament and not to  this



             Court." The  same view was reiterated in Ram Dayal v. Brijraj  Singh and ors.(1) Therein this Court ruled that unless it is esta- blished that expenditure was incurred in connection with the election  by  the  candidate or his election  agent  or  was authorised by them, it is not necessary to be included under s.  77 of the Act.  Expenses incurred by any other agent  or person  without  anything more need not be included  in  the account or return as such incurring of expenditure would  be purely voluntary. In  Mubarak  Mazdoor v. Lal Bahadur(2 ) the  Allahabad  High Court held that /the expenditure voluntarily incurred by the friends  and supporters of the returned candidate  does  not come within s. 123(3) even though the returned candidate was aware  of the fact at the time of the election  itself  that his  friends and sympathiers were incurring  expenditure  in connection  with his election.  That is also the  effect  of the  decision  in Rananjaya Singh’s case(3). This  Court  as well  as  the  High  Courts have taken  the  view  that  the expenses  incurred  by  a political  party  to  advance  the prospects  of the candidates put up by it, without  more  do not  fall  within  s.  77.  That position  in  law  was  not disputed  before  us.   But it is true as  observed  by  the Bombay High Court in’Shivram Sawant Bhoonsale v. Pratap  Rao Deorao  Bhoonsale  (4)  ; that if the  court  comes  to  the conclusion  that an item of expenditure has been  suppressed in the return of election expenses, the mere fact that there is  no sufficient evidence about the amount that  must  have been spent is no ground for (1)  (1970) 1, S.C.R. 530. (3)[1955] 1 S.C.R. 671. (2)20 E.L.R. 176. (4)17 E.L.R. 37. 129 ignoring the matter.  It is the duty of ’the court to assess all expenses as best it can and though the court should  not enter into the region of speculation or merely try to  guess the amount that must have been spent,, it would generally be possible  to  arrive  at  an  amount  of  expenditure  on  a conservative basis and where it is possible to arrive at any such  estimate, such estimated amount should be held as  not shown by the’ candidate in his election account. A somewhat similar was the view taken by this Court in  Amar Nath’s case(1). We shall now proceed to examine the evidence adduced in this case on the basis of the principles enunciated earlier.  But before  going  to the evidence relating to  the  expenditure said  to  have  been  incurred  by  the  1st  respondent  in connection with his election, it is ’necessary to refer to a curious feature in this case.  In the course of the trial of the  case  two  files (files A and  B)  containing  numerous documents were produced on behalf of the petitioner.  One of those  files  viz.  file ’A’ was produced  by  P.W.  14  Mr. Nathuramka and the other was produced by Mr. Chandrashekhar, a  member  of Parliament through Mr.  Sanghi,  an  Advocate. That file is file ’B’.  These files are said to contain  the correspondence relating to the election of respondent No.  1 exchanged between various persons, such as respondent No. 1, Mr.  M.  P. Birla, Mr. S. P. Kaithan, Mr. K. K.  Birla,  Mr. Makahria etc. Mr.  Chandrashekhar has not appeared  in  the witness,box.   Mr.Sanghi did not give evidence in the  case. It is not known howMr. Chandrashekhar came to possess those documents.  Nowcoming  to  file  ’A’,  the  story   put forward by P.W. 14 is that heis a business man in Bombay; he was  a  friend  of Mr. M. P. Birla and at  his  instance  he



worked  for respondent No. 1 during the election; after  the election respondent No. 1 fearing that there might be a raid on his residences in connection with the evasion of taxes or duties, handed over that file to him for safe keeping.   The trial  court  has come to the conclusion that in  that  file there  is  not a single document relating  to  any  business transaction.   All  the  documents therein  pertain  to  the election  of respondent No. 1 and there could have  been  no fear  of seizure of those documents.  The story put  forward by  P.W. 14 is on the face of it unbelievable.  It  is  most likely  that  P.W.  14 worked for  Mr.  Morarka  during  the election  as  suggested during  his  cross-examination.   He seems  to he a hired witness.  But the fact that a  document was procured by improper or even illegal means will not be a bar  to  its admissibility if it is relevant  and  its  gen- uineness proved.  But while examining the proof given as  to its genuineness the circumstances under which if came to  be pro- (1) C.A. No. 717/68 decided on 23-8.1968. 130 duced  into  court  have to  be  taken  into  consideration. Evidence  has  been adduced to prove some of  the  documents found in files ’A’ and ’B’ but the trial court has  rejected that evidence excepting in regard to a few of the documents. It has given good reasons in support of its conclusion.  The persons  who tried to prove the signatures found on some  of those  documents  are strangers to those  who  signed  them. Their pretention as to their knowledge about the  signatures of  the  concerned  person was proved  to  be  hollow.   The principal  witness  ’Who  sought to  prove  several  of  the documents  contained  in files ’A’ and ’B’ is P.W.  33,  Mr. Shankerlal   Roopakdas.   He  is  a  thoroughly   unreliable witness.   He appears to be a dismissed employee of  one  of the  Birla  concerns.   His pretention that  he  worked  for respondent  No. 1 during the election appears to  be  false. It is established that he was one of the counting agents  of Mr. Morarka.  No application was made to this Court to admit any documents as additional evidence in the case.  Therefore in  this appeal we are only concerned with  those  documents which  were  admitted in evidence by the  trial  court.   As found by the trial court voluminous false evidence has  been adduced  in  this case both on behalf of the  petitioner  as well  as  on  behalf of respondent No.  1.  Several  of  the answers  given  by  respondent  No.  1  during  his   cross- examination  were not found to be true by the  trial  court. From  an over-all review of the material on record,  we  are left  with an uneasy feeling about the evidence  adduced  in the  case.   We  have  no doubt in  our  mind  that  in  the Jhunjhunu parliamentary constituency during the last General Election  enormous expenses had been incurred in support  of the candidature of respondent No. 1. We do not know  whether the  same  was true of Mr. Morarka though Ex.   P.  W.  14/5 indicates such a possibility.  In the election petition, the petitioner sought not only to get set aside the election  of respondent  No. 1, he went further and claimed the seat  for Mr. Morarka.  Mr. Morarka in his written statement supported the  pleas taken by the petitioner.   Thereafter  respondent No.  1  gave  notice of  filing  recrimination  against  Mr. Morarka.   Immediately thereafter Mr. Morarka  withdrew  his claim  for the seat and contended that the petitioner  could not  claim the seat for him.  Hence the second relief  asked for  by  the petitioner in his petition was  ordered  to  be dropped.    This  change  in  the  front  is   not   without significance. This takes us to the expenses said to have been incurred  by



respondent  No. 1 in connection with his election under  the various heads. We shall now take up the expenses said to have been incurred by respondent No. 1 under various heads (only such of  them, as are pressed before us). 131 As seen earlier the petitioner’s allegation in the  petition was  that respondent No. 1 incurred an expense of about  six lakhs  of  rupees  for purchasing petrol and  mobil  oil  in connection  with  his  election.   In  his  election  return respondent  has shown an expense of only Rs. 5466-89P  under that  head.  Though the petitioner alleged in  his  petition that  respondent  No. 1 had incurred an expense of  about  6 lakhs for purchase of petrol and mobil oil, evidence was led only  about three payments in that regard viz. (1) a sum  of Rs. 2,000/- to the proprietor of Arjundeo Dharmat of  Caltex and (2) a sum of Rs. 5,0001- and, another sum of Rs. 5,700/- to  M/s.   Gangaram Jamnadhar of Burmah  Shell.   No  person connected with any of these pumps was examined in support of the alleged payments.  The account books of those firms were also not got produced.  To prove the, payment of sum of  Rs. 2,000/- to Arjundeo Dharmal of Caltex, one Mr. Radha  Kishan (PW  10) was examined.  His case is that he is a  friend  of the son of the proprietor of the firm M/s.  Arjundeo Dharmat and  he chanced to be present at the pump when one  "B.   S. Choudhary of Birlas" came and paid to Arjundeo Rs.  2,000/-. Later-on  he was told by the proprietor of the firm that  it was  in  connection  with the supply of petrol  and  oil  to respondent  No.  1. The learned trial judge  was  unable  to place  reliance  on  this chance witness.  His  evidence  is highly   artificial.    No   satisfactory   explanation   is forthcoming for not examining the proprietor of the firm  in question.  Now coming to the payment of a sum of Rs. 5,000/- ,  the only witness who speaks about it is P.W. 19  Vasudev. His  evidence for good reasons have been disbelieved by  the learned trial judge.  He is clearly a partisan witness.  For the alleged payment of Rs. 5,700/- on January 28. 1967,  the witness  examined is P.W. 21.  The learned trial  judge  has disbelieved this witness as well. we see no reason to differ from  the  assessment of the evidence made  by  the  learned trial judge, According to P.Ws. 19 and 21 they chanced to be present  ’it  the time when payments in question  were  made through  some  third  parties.  Here  again  neither  anyone connected with the firm was examined nor the firm’s accounts were produced. It was alleged in the election petition that respondent  No. 1 had spent about 2 lakhs of rupees on printing of  posters, pamphets,  leaflets  and  cartoons and  the  preparation  of badges  of the election symbol "Star", rubber  balcons  with the  slogans " vote for Birla" and flags of silk and  cotton clothes  and their distribution as also on  wall  paintings. Before  us  no  arguments  were  advanced  as  regards   the expenditure  said  to  have  been  incurred  for  badges  of election  symbol.  rubber baloons and flags.  It  was  urged before  us  that  respondent No. 1 had paid  a  sum  of  Rs. 22,000/-  to M/s.  Rai Bros. of Bhiwani for  wall  painting. Several  witnesses  spoke  to the fact  that  the  Jhunjhunu consti- 132 tuency  was  flooded with wall paintings  seeking  vote  for respondent No. 1. But strangely enough no-one connected with Rai  Bros. was examined in the case.  The proprietor of  Rai Bros.  was summoned to give evidence in the case but he  did not appear in court.  On the other hand one Mr. Ganesh  Dutt appeared  in  court and presented a petition  alleging  that



respondent  No.  1’s  election agent  is  not  allowing  the proprietor  of Rai Bros., Mr. Ganpat Rai Joshi to appear  in court  and therefore Mr. Joshi had asked him to produce  the account-books  of  that firm in court.  Neither  Mr.  Ganesh Dutt  was  examined  in  the  case  nor  the   account-books otherwise  proved.  The allegation made by Mr.  Ganesh  Dutt that  the election agent of respondent No. 1 did not  permit Mr.  joshi  to  appear  in  court  remains  unproved.    The resulting position is that there is no evidence to show that any amount was paid to Mr. Joshi either by respondent No.  1 or  his election agent or someone with his consent or  under his authority.  Similarly there is no satisfactory  evidence about any excess expenditure incurred by respondent No. 1 in publishing pamphlets, leaflets and handbills though as  many as  56  different  types of pamphlets appear  to  have  been distributed during the election soliciting votes either  for respondent  No. 1 or for the Swatanfra party.  There  is  no evidence as to who issued those pamphlets.  As seen earlier, respondent No. 1 had the powerful support of the members  of the  Birla family as well as of some  other  industrialists. Evidence  was  adduced  to  show that  76,000  copies  of  a cartoon-two  starved  out and emaciated  bullocks  evidently depicting  that  Congress rule has brought  in  nothing  but poverty were got printed by one Mr. Saxena, an Executive  in a  Birla  concern at the Hindustan Times Press a  Delhi  for which  he  had  paid Rs. 2,300/- as charges.   There  is  no evidence  to  show that these cartoons were got  printed  by respondent  No.  1 nor ’is there any evidence to  show  that they  were  got printed by Mr. Saxena with  the  consent  of respondent  No.  1 or under his authority.  It may  be  that they  were  got  printed to aid  the  election  campaign  of respondent No. 1 through those cartoons could have been used in  any  constituency  in India.  Mr. Saxena  has  not  been examined as a witness in the case. The  fact  that  this cartoon was widely  published  in  the constituency  as is clear from the evidence adduced  in  the case  without  more  cannot show that  the  expenditure  for getting  those cartoons printed was incurred  by  respondent No. 1. Evidence was led to show that at about the time of the elec- tion, several telephones installed in the residences of some of  the  members  of  the Birla family  and  some  of  their executives  were extensively used and the telephone  charges ran into few thousands of rupees but there is no evidence to show that either those 133 telephones were used in connection with the election or they were  used  at  the  instance  or  under  the  authority  of respondent No. 1 Evidence  was  also adduced to show that a large  number  of jeeps  and cars were used in connection with  the  election. No  evidence was adduced to show that they were either  used by respondent No. 1 or that they were used with his  consent or under his authority.  In the circumstances of this  case, the  possibility  of his friends using them,  on  their  own cannot  be  ruled out.  As seen earlier several  jeeps  were purchased  through one of the business associates of  Birlas at  about  the  time  of the  election  but  here  again  as mentioned  earlier there is no evidence to show  that  those jeeps were used in Jhunjhunu constituency at the time of the election. Evidence  was led to show that thousands of  persons  worked for respondent No. 1 but there is nothing to show that  they did not work voluntarily.  At any rate there is no  evidence to  show  that they were either paid for or at  least  their



expenses  were  met by respondent No. 1. It  was  said  that respondent  No. 1 ran several messes to feed his workers  as well  as  the voters.  The trial court has  found  that  the evidence relating to that aspect of the case is  unreliable. We see no reason to arrive at a different conclusion.  Evidence  was led to show that considerable  expenses  were incurred  for  arranging meetings.  Here again there  is  no reliable  evidence to show the amounts that were  likely  to have  been  spent  for arranging the  meetings  or  even  to connect  respondent No. 1 with the expenditure  incurred  in connection with those meetings. Though  the petitioner has failed to establish that  any  of the  items of expenditure alleged to have been  incurred  by respondent No. 1 was in fact been incurred by him, there  is voluminous  and fairly convincing evidence to show that  the constituency was flooded with election literature  including posters,   cartoons,  painting  of  the   walls,   leaflets, handbills etc. on behalf of respondent No. 1. There is  also evidence to show that large number of vehicles were used  in connection with the election.  It is clear from the evidence on  record  that  money was freely and  liberally  spent  to further  the prospects of respondent No. 1. In  addition  to this there is also evidence to show that in about  December, 1966.  an  account was opened in the Pilani  branch  of  the United Commercial Bank in the name of P.W. 32, Mr.  Raghuvir Singh  who  was  at that time  the  President  of  Jhunjhunu District Swatantra Party.  On the very day of the opening of the  account a cheque for Rs. 1,50,000/- issued by  C.A.C.O. (Cement Allocation and 134 Co-ordination   Organization)  was   credited.    Thereafter cash .deposits of over 2 lakhs of rupees were, made in  that account.   These  monies  were drawn by P.W.  32  mostly  by issuing  cheques  in favour of Mr. Tibriwalla,  one  of  the Birla  Executives.  According to P.W. 32,  the  contribution made  by  C.A.C.O. was made to the Swatantra party  and  the cash deposits made were the amounts collected by him for the benefit of the Swatantra party and that he spent the amounts received, in connection with the, election of the  Swatantra party candidates in the Jhunjhunu constituency.  P.W. 32  is undoubtedly  an interested witness.  He was a  supporter  of respondent  No. 1. He himself contested one of the  assembly constituencies in the Jhunjhunu parliamentary  constituency. In  the 1962 General Election, he opposed respondent  No.  2 and lost the election by a narrow margin.  It is clear  from his  cross-examination (the court permitted the Counsel  for the petitioner to cross-examine him) much reliance cannot be placed on his evidence.  Counsel for the appellant asked  us to hold that the account in the name of PW-32 was in reality the  account of respondent No. 1; PW-32 lent his name  as  a cover.   In  fact  it was Mr. Tibriwalla  who  withdrew  the amounts   from  that  account  and  utilized  the  same   in connection  with  the  election ,of  respondent  No.  1.  In support  of  this  contention he  relied  on  the  following circumstances :- The  money was paid by C.A.C.O., a concern in  which  Birlas were  interested.   In  Ex.  PW 42/6, Mr. M.  P.  Birla  had written  to respondent No. 1 to say that he  would  persuade C.A.C.O.  to make some contribution to Swatantra  party  and further  the cheque could be sent through respondent  No.  1 and cheques were mostly issued in favour of Mr.  Tibriwalla. We agree with the learned judge of the High Court that there is room to suspect that most of the amounts drawn from  this account  were  likely  ,to have been spent  to  further  the election  prospects of respondent No. 1. C.A.C.O. is  not  a



Birla  concern.   It is an organization  formed  by  several cement manufacturers.  Birlas are only ,one of them.   There is no evidence to show that the cheque in question was  sent through  respondent No. 1. It is proved that  C.A.C.O..  had contributed in connection with the election not only to  the Swatantra  party  but also to the Congress  party,  the  Jan Sangh and several other splinter groups.  It has even  given contributions  to individual candidates as is seen from  its accounts.  In fact the contribution given by C.A.C.O. to the Congress  party  is  much  larger than maid  by  it  to  the Swatantra  party.   Mr.  Tibriwalla  was  a  member  of  the Swatantra  party.  From the facts proved it is not  possible to come to a definite conclusion that be acted on behalf  of respondent  No.  1.  If one looks at the  way  C.A.C.O.  was distributing  amounts during the election as donations,  one is constrained to feel that those payments were intended 135 as  investments. Possibly C.A.C.O. did what  other  business concerns  are  doing.  Such donations to  political  parties whether done in the crude way in which C.A.C.O. did or in  a more  subtle way would undermine the very foundation of  our society.   No  democracy can survive, however ideal  is  the Constitution  by  which it is governed,  if  the  principles underlying   the   Constitution  are  ignored.    The   best democratic   Constitution   can  go  the  way   the   Weimar Constitution went. It is true that many times corrupt practices at election may ,not  be able to be established by direct evidence  and  the commission  of  those  corrupt  practices  may  have  to  be inferred  from  the proved facts and circumstances  but  the circumstances  proved  must reasonably  establish  that  the alleged  corrupt  practice  was committed  by  the  returned candidate  or  his election agent.   As,  mentioned  earlier preponderance of probabilities is not sufficient. For the reasons mentioned above this appeal must fail and it is  hereby  dismissed.   But we  cannot  leave  this  appeal without expressing our uneasiness about the law relating  to election   expenses.    Section  123(6)is   by   and   large ineffective  in  controlling election expenses.   There  are ways  to bypass that provision.  From what we have  seen  in the  various election cases that came be-fore us we  are  of the opinion that law controlling election expenses has  been reduced to a mockery. , We can only repeat the  observations of this Court in Rananjaya Singh’s case(1) that "the  appeal in this connection must be to the parliament." Now  coming to the question of costs, the trial  court  felt extremely unhappy in having had to award costs to respondent No.  1. But it had to because of the compulsion of the  law- see  s.  119  of the Act.  We are not faced  with  any  such compulsion.  There is no provision in the Act which  compels the  appellate court to award costs to the successful  party in  an election appeal.  This is eminently a fit case  where we  should not award costs to the returned  candidate.   The resulting  position is that the appeal is dismissed but  the parties are directed to bear their own costs in this appeal. R.K.P.S. Appeal dismissed. (1) [1955] 1 S.C.R 671. 136