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PETITIONER: N.C. ZELIANG

       Vs.

RESPONDENT: AJU NEWMAI & 2 ORS.

DATE OF JUDGMENT05/09/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA CHANDRACHUD, Y.V. ((CJ) KOSHAL, A.D.

CITATION:  1981 AIR    8            1981 SCR  (1) 631

ACT:      Representation of  the People  Act 1951-Section 123(6)- Scope of-Preponderance  of  probabilities-If  sufficient  to prove allegation of corrupt practice.

HEADNOTE:      In the  elections to  the State  Assembly in  1977  the appellant was declared elected. The election petitioner, who was one  of the defeated candidates, alleged in his petition that the  appellant had filed a false return of the expenses and  thereby   committed   corrupt   practice   within   the contemplation of section 123(6) of the Representation of the People Act,  1951. Accepting  the allegation  the High Court set aside his election.      Allowing the appeal. ^      HELD: (1)  The High  Court has  not made any attempt to determine  whether   there  was  any  legal  and  acceptable evidence to  prove  corrupt  practice  alleged  against  the appellant. It  is well  settled that  a charge under section 123 of  the Act  must be proved by clear and cogent evidence as a  charge for  a criminal  offence. It is not open to the Court to  hold that  a charge  of corrupt practice is proved merely on  a preponderance  of probabilities  but it must be satisfied that  there is evidence to prove the charge beyond a reasonable doubt. [635 B-D]      K.M. Mani  v. P.J.  Antony &  ors.  [1979]  1  SCR  701 referred to.      (i) In  the instant  case the petitioner himself had no personal knowledge  as to  the  actual  expenses  in  hiring taxies and  his source  of information  was  based  on  what others said.  The evidence  led by  the petitioner falls far short of the standards required by law. [636 D, 637E]      (ii) The  petitioner claimed that he maintained a diary of the  electioneering. Yet  he did  not produce it in Court from which  a natural  presumption arises  that  if  he  had produced the diary it would have gone against his case. [637 G-H]      (2) Corrupt practice being in the nature of a fraud, it is not permissible to plead one kind of fraud or one kind of corrupt practice and prove another though they may be inter- connected.  The  High  Court  has  rightly  found  that  the

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petitioner pleaded  that it was the appellant who had held a feast at  which he  invited his  voters and exhorted them to vote for  him. But the evidence shows that the appellant had not held the feast but it was hosted by one of his agents at which the appellant was present and, therefore, it could not be proved  that the  feast was  held at  the instance of the appellant. [638 G-639A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1679 of 1979.      From the  Judgment and  Order dated  15-5-1979  of  the Gauhati High Court in Election Petition No. 7/78.      S.S. Ray,  N.R. Chowdhary  and Parijath  Sinha for  the Appellant. R.  Karaanjawala and  P.H. Parekh  for Respondent No. 1. 632      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This election appeal is directed against a judgment  dated May  15, 1979 of the Gauhati High Court by which the High Court accepted the election petition filed by the petitioner  Aju Newmai and set aside the election of the appellant, N.C.  Zeliang who  had been declared elected from the No.  6 Tening  Assembly Constituency  of  the  State  of Nagaland. For  short, the  respondent  No.  1,  namely,  the election petitioner  in the High Court, shall be hereinafter referred to  as the  ’Petitioner’ and  N.C. Zeliang, who had won the election, as the ’appellant’.      The elections  were held  in the  year  1977  and  were contested by  the petitioner,  the appellant and others. The appellant contested  the election  as a  Congress  candidate with the  symbol of  ’cow and a calf’ whereas the petitioner contested on  the ticket  of  the  United  Democratic  Front (U.D.F.)  whose   election  symbol  was  ’Cock’.  The  other candidates in  the field  were Jangkhosei  and Paokholun. We are,  however,  not  concerned  with  these  candidates.  It appears that  the appellant polled 2224 votes as against the 2207 votes  polled by  the petitioner  and thus defeated the petitioner by  a margin  of 17 votes, the total votes in the constituency being  only 5,000. The poll took place on 8-11- 1977 and  the last  date for filing the nomination paper was 24-10-1977.      Being aggrieved  by the declaration of the appellant as having been  duly elected  to the  Assembly, the  petitioner filed an  election petition  on 5-1-1978  in the  High Court challenging the election of the appellant on several grounds including the allegation that he had filed a false return of the expenses  and had incurred much more expenses than fixed by the  authorities concerned. The petitioner also alleged a number of  other corrupt  practices which had been committed by the appellant in the course of the election.      The appellant in his written statement strongly refuted all the  allegations made  by the  petitioner and  submitted that he  had committed  no corrupt  practice  and  that  the return which  he had  filed to the District Election Officer was absolutely correct and the expenses incurred by him were well below the permissible limit.      A large  number of issues were framed by the High Court but the  High Court  appears to  have accepted  the election petition only on one issue, viz., issue No. 4, which related to the  corrupt practice as contemplated by s. 123(6) of the Representation of the People Act (hereinafter referred to as the  ’Act’)  in  incurring  the  expenditure  exceeding  the

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permissible limit which amounted to a contravention of 633 S. 77  of  the  Act.  The  other  allegations  made  by  the petitioner were held by the High Court as not proved.      The learned counsel for the petitioner, who argued this case with  tenacity and ingenuity, was unable to support the allegation made  by the petitioner on any other issue framed by the  court except  issues No.  4 and  5. As  the  pivotal controversy in  the instant  case rests  on issue  No. 4, we would like  to take up the finding of the High Court on this issue first.  Issue No.  4, as framed by the High Court, may be extracted as follows:-           "Whether the  Respondent No.  1 committed  corrupt      practice,  as   defined  under   sec.  123(6)   of  the      Representation of the People Act, 1951, by incurring or      authorising  expenditure   exceeding  the   permissible      amount, in contravention of section 77 of the said Act,      as alleged  in paragraphs  10, 11  Ground No.  (II) and      Schedule B to the Petition?           If so,  is the election of Respondent No. 1 liable      to be set aside?" This issue  was based on the plea taken by the petitioner in paragraph 10  and ground  No. II  as also  Schedule B to the petition and it may be necessary to traverse the allegations made by  the petitioner  regarding this  issue. Paragraph 10 appears to  be an  omnibus statement which contains a number of grounds  including the question of incurring unauthorised expenditure with  which  alone  we  are  concerned  for  the present, and may be extracted thus:-           "That the petitioner also states and contends that      the election  of Respondent  No.  1  is  liable  to  be      declared  void   as  he   committed   several   corrupt      practices, namely  (1) the  corrupt practice as defined      in sub-section  (6) of  section 123 of the Act, that is      to  say,   incurring  or   authorising  expenditure  in      contravention of section 77 of the Act; (2) the corrupt      practice of  bribery as  defined in  sub-section (1) of      section 123  of the  Act; (3)  the corrupt  practice of      hiring or procuring vehicles for the free conveyance of      electors to  and from  certain polling  stations within      the said  Assembly Constituency  as defined  in Section      123(5) of  the Act.  The material facts and particulars      of these corrupt practices are set out hereunder."      Ground No.  II of  the petition  may  be  extracted  as follows:           "For that  the  Respondent  No.  1  committed  the      corrupt practice  as set  out  in  sub-section  (6)  of      section 123  of the  Act by  incurring  or  authorising      expenditure in contravention of section 77 of the Act." 634      The material  particulars relating  to  the  allegation made in  Ground No.  II are  contained in  Schedule B to the petition, the  relevant portion  of which  may be  extracted thus:-           "B-1. In  his return  of  election  expenses,  the      Respondent No.  1 returned the total expenditure of Rs.      1323.69.                .......      .......      .......           B-3. Expenses  incurred in  connection  with  hire      charges of  vehicles and  petrol and mobil oil consumed      on  account   of  these   vehicles  and  in  purchasing      accessories:-                (i) The  respondent hired  a jeep bearing No.           NLK 4308  from Wilubo  of Dimapur  and  paid  hire           charge of  Rs. 3000  including  the  cost  of  the

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         driver to the said owner.                (ii)  On   3-11-1977  the  Respondent  No.  1           purchased two  tyres valued  at Rs.  720 from  the           firm Motilal  Dungarmall of  Dimapur and one exide           battery from  the firm  Bakliwal and  Gangwals  of           Dimapur at  the cost of Rs. 540 for the purpose of           the aforesaid vehicle No. NLK 4308.                (iii) On  28-10-1977 the Respondent purchased           petrol worth  Rs. 240 for the vehicle No. NLK 6284           used by  him for  the purpose of election from the           firm  of   Pulchand  Trilokchand,   Dimapur  under           voucher No. 270800." We have  already mentioned  that all the allegations made by the petitioner were stoutly denied by the appellant.      Thus, from  the allegations  made by  the petitioner so far as  issue No. 4 is concerned, the gravamen of the charge against the  appellant was  that while  he had shown a total expenditure of  Rs. 1323.69  in his  return filed before the District Election  Officer yet  he had  incurred expenditure far exceeding  the same Paragraphs B-3(i), (ii) and (iii) of Schedule B  to the  petition, extracted above. show that the appellant had  incurred a  total expenditure  of  Rs.  3960. According to  the petitioner these expenses were incurred on the  hiring   of  jeeps   and  purchasing  tyres  and  other accessories for jeep NLK 4308 which was used for the purpose of election  campaign. The permissible limit being Rs. 2,500 only, the expenditure incurred, according to the petitioner, exceeded the  limit by  Rs. 1460. It was also alleged by the petitioner that jeep No. NLK 4308 was hired by the appellant from one  Wilubo of  Dimapur who  was paid hiring charges of Rs. 3,000. We might state here that according to the finding of the  High Court,  the petitioner  himself admitted in his evidence that the expenditure incurred 635 for the  purchase of  tyres and battery (Rs. 720 and Rs. 540 respectively) were  included in the amount of Rs. 3,000, the balance being  the hire  charges. The petitioner, therefore, contended that,  at any rate, the appellant had exceeded the expenses incurred  in the  election by  at least  Rs. 500, a fact  which,   according  to  him,  he  had  proved  to  the satisfaction of the court.      We have  gone through  the judgment  of the  High Court carefully and  what we  find is  that the High Court has not made any  attempt to  determine whether  there was any legal and  acceptable  evidence  to  prove  the  corrupt  practice alleged against  the appellant.  It is now well settled by a large catena  of authorities  that a  charge under s. 123 of the Act  must be  proved by  clear and  cogent evidence as a charge for  a criminal  offence. It is not open to the court to hold  that a  charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that  there  is  evidence  to  prove  the  charge  beyond  a reasonable doubt.  The electoral  process in this country is an extremely  expensive one and by declaring the election of a candidate null and void, the entire process, so far as the candidate is  concerned is  set at  naught resulting  in re- election. Such  a course  should be  adopted only  when  the allegation of  corrupt practice  is proved  conclusively. In K.M. Mani  v.  P.J.  Antony  &  Ors.(1),  this  Court  while referring to a large number of cases observed as follows:-           "An  allegation  regarding  the  commission  of  a      corrupt practice  at an  election  is  a  very  serious      matter not only for the candidate but for the public at      large as  it relates  to the  purity of  the  electoral      process.

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              .....          ....        ....           In taking  that view the trial court lost sight of      the  requirement  that  the  allegation  regarding  the      commission of  a corrupt practice is in the nature of a      quasi criminal  proceeding which  has to be established      beyond reasonable doubt and not merely by preponderance      of probabilities.                ......        .....        ....           In Mohan  Singh’s case  (AIR 1964  SC 1366) it has      been held  that the onus of proving the commission of a      corrupt practice  is not  discharged on  proof of  mere      preponderance of probability as in a civil suit, and it      must be established beyond reasonable doubt by evidence      which is clear and unambiguous. 636           In Balakrishna (1969) (3 SCR 603) it has been held      that while  consent may be inferred from circumstantial      evidence, the  circumstances must  point unerringly  to      the conclusion  and must admit of no other explanation,      for a  corrupt practice  must be proved in the same way      as a  criminal charge.........  The election petitioner      must therefore  exclude every hypothesis except that of      guilt on  the part  of the  returned candidate  or  his      election agent, and the trial court erred in basing its      finding on a mere probability." It is  not necessary  to multiply  authorities on this point because the law has been fully crystallised on the subject.      The petitioner  who was  examined as  PW 1  has clearly stated in  his evidence  that he was told by Wilubo that the appellant had  hired Jeep  No. NLK  4308 from him for a lump sum of  Rs. 3,000  which were  the hire charges. The witness further admitted  that Wilubo  was his  relation  being  the brother of  his elder  brother’s wife  and  was  staying  at Dimapur.  Thus,  the  petitioner  himself  had  no  personal knowledge as  to the actual hiring charges paid to Wilubo by the appellant and his source of information is based on what he heard from Wilubo. Wilubo, however, who was examined as a witness for  the appellant, has denied these allegations and has also denied having told the petitioner that his Jeep was hired by the appellant, much less for a sum of Rs. 3,000.      Mr.  Karanjawala,   appearing   for   the   petitioner, vehemently contended  that the  manner in  which Wilubo  was examined by  the appellant  as his witness shows that he was not speaking  the truth.  It was  pointed out that, to begin with, Wilubo  was cited  as a witness for the petitioner and summons were  issued to  Wilubo but  he evaded  service  and ultimately a  warrant had  to be issued when the counsel for the appellant  informed  the  court  that  Wilubo  would  be examined as  a witness  for the appellant. Our attention was also drawn  to the  cash memos.  which show  that the  tyres costing Rs.  720 and  battery worth  Rs. 540 were purchased. Even accepting  this part  of the  case, all  that has  been shown is that a sum of Rs. 1260 was spent so far as jeep No. NLK 4308  was concerned.  But this  fact by  itself was  not sufficient to  prove the  allegations made by the petitioner against the  appellant. It  had further  to be  shown by the petitioner to  the satisfaction of the court that Wilubo had charged a  hiring charge of Rs. 3,000 or nearabout that from the appellant  and that  he himself  had purchased the tyres and battery. Wilubo had denied this allegation, the evidence of the  petitioner on  this point  is  purely  hearsay  and, therefore, inadmissible in evidence. It was, however, argued by Mr. Karanjawala 637 that from  the evidence  of the  witnesses produced  by  the

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petitioner, it  would appear  that Jeep  No. 4308 was freely used for  a large  number of  days from  which it  could  be safely presumed that the charges for the jeep must have been in the  region of Rs. 3,000. In the first place, there is no clear evidence  of any  of the  witnesses  examined  by  the petitioner to  show the  exact period for which the jeep was used or  the distance  which it  had traversed  nor is there anything to show that such an amount as Rs. 3,000 could have been paid  as hiring charges to Wilubo by the appellant. The evidence merely  shows that  the jeep was used either on the election day,  or a day after or a day before that. There is no evidence  to show  what were the customary hiring charges for jeeps  or cars  in the localities where the jeep is said to  have  been  used  by  the  appellant.  It  is,  however, suggested by  Mr. Karanjawala that as Wilubo appears to be a man of  small means,  it must  be presumed that he must have made a lot of money by hiring out the jeep to the appellant. This is  also a  pure conjecture  and cannot be pressed into service for  unseating the  appellant which can be done only if the  evidence, even  if  it  consists  of  circumstantial evidence must  be clear  and conclusive.  We have been taken through the  evidence of  PWs 1, 5, 6, 13 and 20 but none of these witnesses  gives us any idea of the prevailing rate of hire in  the localities concerned which could have been paid by the appellant to Wilubo for the jeep. The evidence led by the petitioner  falls far short of the standards required by law.      Another important  circumstance that  militates against the case  of the  petitioner is  that while  the  petitioner admits in his evidence that he used to maintain some sort of a diary  of his electioneering yet he had not produced it on the plea  that he  did not  remember where  he had  kept the diary.  In   this  connection,  the  petitioner  deposed  as follows:-           "I had  maintained some  sort of  a  diary  of  my      electioneering. The  diary was of course not maintained      regularly. I  do not remember where I kept the diary. I      have not filed the same in Court."      It is,  therefore, manifest  that the  diary would have been the  best evidence to show that as to how many days the jeep was  used or  for what  distance and as also the hiring charges paid  by the appellant to Wilubo. The petitioner has withheld the  diary and  has not filed the same in the court from which  a natural  presumption arises  that  if  he  had produced the diary it would have gone against his case. Even PW 6  who, according  to the  petitioner, was an independent witness, has merely said that he knew that the appellant had used a jeep but he does not 638 either give the dates when the jeep was used or the distance which it  had traversed.  He, however,  further admits  that although he  had seen the jeep he did not see the appellant, Zeliang in  it. This,  therefore, falsifies  his  allegation that the  jeep was  used by  the appellant.  The evidence of other witnesses  on this  point is  also not  helpful to the petitioner and is even more vague than the evidence of PW 6. In fact,  there is  some evidence to show that the appellant had visited various places in his constituency even on foot. In the  absence of such evidence it was not open to the High Court to  accept the  speculation of the petitioner that the appellant must  have incurred  hiring charges  for the  jeep exceeding Rs. 2,000 or so.      The  appellant   has   denied   having   incurred   any expenditure on  the purchase of tyres and battery but taking the case  of the petitioner at the highest and assuming that

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an expenditure  of Rs. 720 for the tyres and Rs. 540 for the battery was  incurred as  is proved  from  the  cash  memos, produced by the petitioner, there is no reliable or credible evidence to show that the appellant had himself met the cost of these  articles and  used them for his election campaign. Thus, the  expenses indicated above are not at all relatable to the  jeep in  question. In these circumstances therefore, we are  clearly of  the  opinion  that  there  is  no  legal evidence to  support the  corrupt practice  alleged  by  the petitioner in  that he  had incurred  expenditure beyond Rs. 2,500 and  thus the  petitioner has  not been  able to prove that the  return of  expenses filed  by the appellant before the District Election Officer was wrong or inaccurate and in excess of  the permissible  limit. Hence, the finding of the High Court on this point cannot be sustained.      Realising this  difficulty,  Mr.  Karanjawala  strongly pressed issue No. 5 framed by the High Court on the basis of one of  the allegations  made by  the petitioner.  The  High Court has,  however, clearly  held that the allegation which formed the subject-matter of issue No. 5 has not been proved at all  by the  petitioner.  Mr.  Karanjawala  assailed  the finding of  the High  Court on this point and submitted that this allegation was clearly proved by the petitioner. There, however,  appears   to  be  an  insurmountable  obstacle  in accepting the  contention of  the counsel for the petitioner on this  point. It  is well  settled that  an allegation  of corrupt practice must be clearly pleaded in the petition and the particulars  given in  the  schedule.  Corrupt  practice being in  the nature  of a  fraud, it  is not permissible to plead one  kind of fraud or one kind of corrupt practice and prove another  though they  may be inter-connected. The High Court has  rightly found that as the petitioner pleaded that it was  the appellant  himself who had held a feast, invited his voters  and exhorted  them to vote for him, the evidence shows that  the appellant  had not held the feast at all but it 639 was hosted  by one  of his agents in which the appellant was present and  therefore it  cannot be presumed that the feast was held  at the  instance of  the appellant. The High Court held that  the allegation  pleaded was  not  proved  by  the evidence which  in fact  was contrary  to the  pleadings and therefore no  notice of  such a  corrupt practice  could  be taken. With  due respect,  we  find  ourselves  in  complete agreement with  the reasons  given by the High Court on this aspect of the matter. Issue No. 5 may be extracted thus:-           "Whether  Respondent   No.  1   committed  corrupt      practice  of   bribery,  as   defined   under   section      123(1)(a)(b) of  the Representation  of the People Act,      1951 by  offering himself  or by  his agents  with  his      consent,  gratification  by  way  of  entertaining  the      electors of  No. 6  Tening Assembly Constituency of the      Nagaland Legislative  Assembly with  feasts,  with  the      object, directly  or indirectly,  of inducing  them  to      vote for the Respondent No. 1, as alleged in paragraphs      10, 11 (Ground No. III) and Schedule C to the petition?           If so,  is the election of Respondent No. 1 liable      to be set aside?"      In Schedule  C the  particulars  given  show  that  the appellant gave a feast on 2-11-77 and on 31-10-77 and on 12- 11-77 to  the electorate  and purchased  a pig  on all these occasions for hosting the voters. The evidence led, however, shows that  no feast  was hosted by the appellant at all but was done  by some  other person  who was his agent while the appellant was  present. It  is, therefore, manifest that the

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exact corrupt practice pleaded by the petitioner in Schedule C was  not proved  but  was  in  direct  variance  with  the evidence which  he led  on this point. On this ground alone, therefore, the  petitioner would have to be put out of court so far  as issue  No. 5  is concerned.  No other  point  was pressed before us by the counsel for the parties.      For the  reasons given  above, we  are  satisfied  that there is  no legal  evidence to  prove the  corrupt practice alleged against the appellant that he had exceeded the limit of expenditure fixed in using the jeep, even if he had taken it from  Wilubo. Issue  No. 5  also was  rightly held by the High Court  not proved.  In this  view of  the  matter,  the appeal is allowed. The order of the High Court setting aside the election  of the  appellant and  unseating him is hereby quashed. In  the peculiar  circumstances of  the case, there will be no order as to costs. P.B.R.                                       Appeal allowed. 640