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PETITIONER: OM PRABHA JAIN

       Vs.

RESPONDENT: CHARAN DAS & ANR

DATE OF JUDGMENT10/04/1975

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1975 AIR 1417            1975 SCR  107  1975 SCC  (4) 849  CITATOR INFO :  R          1975 SC2299  (414)  R          1978 SC 351  (5)

ACT: Representation of the People Act (43 of 1951) Ss. 77,  116-A and 123(6)--Corrupt Practice-Standard of proof. Practice  and  Procedure-Finging by High Court  in  election disputes-Interference by Supreme Court.

HEADNOTE: Section  77 of the Representation of the People  Act,  1951, provides  that every candidate at an election shall keep  an account  of  expenditure  incurred in  connection  with  the election and that the total expenditure shall not exceed the amount prescribed. The  appellant  and  the  first  respondent  contested   the election  to the State Legislature and the first  respondent was  successful.  The appellant challenged the  election  on the ground, inter alia, that the first respondent was guilty of   ,corrupt   practice  having  incurred   or   authorised expenditure  in  contravention  of  s.  77.   The   election petition was dismissed by the High Court. In  appeal  to this Court, it was contended that  there  was evidence  to  show that the expenditure incurred  by  D,  in connection  with  the use of two jeeps during  election  was authorised  by the first respondent and if that  expenditure was added to the amount shown by the first respondent as his expenditure,   the  total  expenditure  would   exceed   the prescribed limit of Rs. 9000. During  the  pendency of the appeal. s. 77  was  amended  by inserting  two Explanations in the section.   Explanation  1 provides  that  the expenditure incurred  or  authorised  in connection  with the election of a candidate by a  political party  or by any other association or body of persons or  by any  individual  other than the candidate  or  his  election agent,  shall not be deemed to be expenditure in  connection with  the election, incurred or authorised by the  candidate or his election agent. Dismissing the appeal, HELD  :  (Per  curiam) The allegation  of  corrupt  practice against the respondent has not been proved beyond reasonable

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doubt. [109H & 123F] (Per  M.  H. Beg, J.)-If a charge of a corrupt  practice  is held  to have been established against a candidate,  it  may have  grave  repercussions on his reputation  and  political future; and, therefore, prudence requires that the  stricter standard  of proof of a criminal charge should  be  applied. [109F] The High Court has held that as the precise connection of  D with   the   first   respondent   was   not   satisfactorily established,  the  charge of corrupt  practice  against  the first respondent must fail.  This Court will not, without  a ,better  reason  than merely that another inference  on  the evidence  is  possible,  disturb such a finding  even  on  a statutory  first  appeal  on facts.  There  is,  if  a  bare balance  of probabilities could decide the case,  sufficient circumstantial evidence to connect the expenditure  incurred by  D  with  the respondent who did  not  even  produce  any account  books,  though  the law  requiem  him  to  maintain satisfactory  accounts  to support his return  of  expenses; yet,  if the rules of circumstantial evidence  were  applied with  the  strictness  with which  they  axe  applicable  in criminal  cases  it must be held that the case  against  the first  respondent  has  not been  proved  beyond  reasonable doubt. [109D-E-F-G-H] 108 (Per  Y.  V.  Chandrachud and A. C. Gupta, JJ.)  :  (1)  The appeal  has  to be decided in the light of  the  Explanation added to s. 77. (2)The  findings of fact recorded by the High  Court  should not  be disturbed in an appeal under s. 116-A, unless  there was  some  serious error in the findings.   In  the  present case,  the  Judge who tried the petition, had  recorded  his impression about the demeanour of the witnesses whenever  he thought  necessary.   The  findings  based  solely  on   the demeanour of the witnesses cannot be reversed in appeal, but the conclusions of fact recorded upon a consideration of the probabilities  can  be  tested to see if  they  contain  any serious error [121H 122A] (3)A  charge  of  corrupt practice  is  quasi-criminal  in nature and must be proved beyond reasonable doubt. [122D] (4)Before  the  High Court the parties  proceeded  on  the footing   that   the  question  raised   related   to   both allegations,   namely,  that  the  respondent  incurred   or authorised  the expenditure incurred on the two jeeps,  and, therefore,  the  scope of the inquiry in  appeal  cannot  be limited only to the question whether the respondent  himself incurred the expenditure. [121A] (5)  There is no evidence of the respondent incurring or any direct evidence of his authorising the expenditure  incurred for the jeeps. [121D] (6)  From  the fact that the respondent used the jeeps  once or  twice, it could not be inferred that he paid  for  their hire,  because,  it  is well known  that  candidates  at  an election very often use their supporters’ vehicles. [121D-E] (7)There  is also no reliable circumstantial  evidence  to connect  the respondent with the expenditure incurred by  D. [121H] (8)The  respondent did not produce his account  of  election expenses-his  case  being that he had destroyed  the  papers after  preparing his return of election expenses.  From  the fact of non-production of accounts no adverse inference  can be  drawn  against the respondent that the  expenditure  was really  incurred by the respondent himself.  D who made  the payments  gave evidence, and he denied that  the  respondent authorised  him to make the payments and this  evidence  was

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accepted by the High Court. [121 E-F] D.   P.  Mishra v. Kamal Narain and Anr. [1971] 1 S.C.R.  9, distinguished. (9)The  circumstances proved in the case are: (a)  that  D worked  for the respondent; (b) that D hired the  two  jeeps and  used them for the respondent’s election  campaign;  and (c)  that  he  sometimes  operated  from  the   respondent’s election office.  But these circumstances do not justify the inference  that  the  respondent  put D  in  charge  of  his transport arrangements. [122F-H] (10)As  regards  the money spent by D it is  not  believable that  he  spent  his own money.  But  the  only  alternative inference is not that it was the respondent’s money that was spent  and  that the respondent authorised D  to  spend  it, especially   when  there  is  evidence  to  show  that   the respondent’s election campaign received financial assistance from other sources, such as the Jan Sangh Party. [123B-C] (11)A  note book put in evidence by the appellant  seems  to suggest  that a part of the money paid for the 2  jeeps  was taken from the respondent.  But, the note book was not  kept in  the  regular course of business, it was not  a  reliable document  and there was no independent evidence proving  the correctness  of the entries therein.  Therefore, it  is  not possible to rely on the entries in the note book and it must be left out of consideration. [120E-121C-122H-123A] (12)It  may  be  difficult to get hold  of  evidence  in  an election  dispute to prove such a corrupt practice, but  the law requires proof beyond reasonable doubt. [123E-F]                             109

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1551  of 1973. From  the judgment and order dated 31st August 1973  of  the Punjab  & Haryana High Court in Election Petition No. 42  of 1972. L.   M. Singhvi, A, Gupta, S. L. Yadava, S. K.. Dhingra  and S.   Swarup, and J. B. Dadachanji, for the appellant. H.   L. Sibal, S. S. Khanduja, Susnik Kumar Jain, Vishwanath K.   V. and Kapil Sibbal, for respondent No. 1. The Judgment of the Court was delivered by BEG,  J.-I would like to point out that the High  Court,  in the  judgment  under appeal, recorded the finding,  after  a very  comprehensive  and detailed discussion  of  the  whole evidence "that the two jeeps in question actually worked  in support  of  the respondent’s election campaign  right  from February  18,  1972 to March 11, 1972 under the  charge  and direction  of  Duni Chand".  Nevertheless,  the  High  Court finally  held that, as the precise connection of Duni  Chand with  the  contesting  respondent  was  not   satisfactorily established,  the  charge of corrupt  practice  against  the respondent  must fail.  It is the well established  practice of  this Court (see e.g. B. B. Karemore & Ors. v.  Govind  & Ors.)  (1)  that it will not, without a better  reason  than merely  that  another inference, on evidence on  record,  is possible,  disturb such findings even on a  statutory  first appeal which is not confined to questions of law. We cannot forget that, if a charge or a corrupt practice, as an  electoral  offence,  is held to  have  been  established against a candidate, it may have grave repercussions on  his reputation   and  political  future.   Therefore,   prudence requires that we should apply the stricter standard of proof of a criminal charge in such a case and not decide the  case

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on a bare balance of probabilities. It appears to me that, although there is, if a bare  balance of   probabilities   could  decide  the   case,   sufficient circumstantial evidence to connect the expenditure  incurred by Duni Chand with the respondent, who did not even  produce any  account books though the law requires him  to  maintain satisfactory  accounts  to support his  return  of  election expenses,  yet,  if  we  are to  apply  the  rules  of  cir- cumstantial evidence with the strictness with which they are applicable  in criminal cases, it may be held here that  the case against the contesting respondent is not proved  beyond reasonable  doubt  despite all the  circumstances  appearing against  him.  There are other circumstances  which  suggest another possible inference.  Hence, we are left in doubt  on the  question whether he or the Jan Sangh party, from  which he  broke  away  after  his  election,  had  incurred  these expenses  through  Duni  Chand.  1,  therefore,  though  not without  some hesitation, agree with the conclusion  reached by  my learned brethren that this appeal must be  dismissed. I  also agree that, in the circumstances of this  case,  the parties should bear their own costs. (1)  A.I.R. S.C. 405. 110 GUPTA J.-This is an appeal under Section 116A of the  Repre- sentation  of the People Act, 1951 (hereinafter referred  to as "the Act") from an order passed by the Punjab and Haryana High  Court at Chandigarh dismissing the  election  petition filed  by the appellant calling in question the election  of the  first respondent to the Haryana State Legislature  from the  Kaithal Assembly Constituency in 1972.  Poll was  taken on  March 11, 1972.  The first respondent who secured  26095 votes  was elected defeating the nine other  candidates  who contested the election.  Appellant Om Prabha Jain who polled 22673  votes secured the next position in the  contest.   In her   election  petition  the  appellant  hereinafter   also referred  to  as  the petitioner,  alleged  various  corrupt practices   against  the  returned  candidate  seeking   his election to be declared void under sec.  100 of the Act  and also prayed for an order under sec. 99 naming him guilty  of corrupt practice so that he might be disqualified under sec. 8A of the Act.  In this appeal the challenge is confined  to the  allegations  of corrupt practice under  sub-sec.(6)  of sec.   123-"incurring  or  authorising  of  expenditure   in contravention of Section 77".  Sec. 77 as it stood when  the election petition was presented was in these terms:               "77.  Account 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 authorized 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 such  particulars               as may be prescribed.               (3)The total of the said expenditure shall not               exceed such amount as may be prescribed." For  the State of Haryana the prescribed limit  on  election expenses was Rs. 9000. During  the  pendency  of  the  appeal  in  this  Court   an Ordinance,   namely,  the  Representation  of   the   People (Amendment) Ordinance, 1974 was promulgated amending sec. 77 of  the  Act by inserting two explanations to  sub-sec.  (1)

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thereof.  The explanations read as follows : -               Explanation  1.-Notwithstanding any  judgment,               order   or  decision  of  any  court  to   the               contrary,   any   expenditure   incurred    or               authorized in connection with the election  of               a  candidate  by a political party or  by  any               other association or body of persons or by any               individual (other than the                                    111               candidate or his election agent) shall not  be               deemed to be, and shall not ever be deemed  to               have been, expenditure in connection with  the               election   incurred  or  authorized   by   the               candidate  or  by his election agent  for  the               purposes of this sub-section :               Provided   that  nothing  contained  in   this               Explanation shall affect-               (a)   any  judgment, order or decision of  the               Supreme  Court  whereby  the  election  of   a               candidate to the House of the People or to the               Legislative  Assembly  of  a  State  has  been               declared   void  or  set  aside   before   the               commencement  of  the Representation’  of  the               People (Amendment) Ordinance, 1974;               (b)   any  judgment,  order or decision  of  a               High  Court whereby the election of  any  such               candidate has been declared void or set  aside               before the commencement of the said  Ordinance               if no appeal has been preferred to the Supreme               Court against such judgment, order or decision               of the High Court before such commencement and               the  period  of  limitation  for  filing  such               appeal has expired before such commencement.               Explanation 2.-For the purposes of Explanation               1,  political  party"  shall  have  the   same               meaning    as   in   the   Election    Symbols               (Reservation  and Allotment) Order,  1968,  as               for the time being in force.’. The Representation of the People (Amendment) Ordinance, 1974 was subsequently repealed and replaced by the Representation of  the  People  (Amendment)  Act, 1974  (Act  58  of  1974) inserting the aforesaid explanations in sec. 77 of the  Act. The  appeal  before  us  does not  attract  the  proviso  to Explanation  1 and sec. 77 with the explanations added  will govern this case. The  particulars of the charge that the  returned  candidate incurred  ,or  authorized expenditure above  the  prescribed limit  are set out in clauses (a) to (1) of paragraph 14  of the election petition.  Dr. Singhvi, learned counsel for the appellant,  confined  his  submissions  to  the  expenditure incurred  in  connection with the use of two  jeeps  bearing Nos.  6424  and  1116 mentioned  along  with  several  other vehicles  in clause (e) of paragraph 14.  It is  alleged  in that  paragraph that though the first respondent  showed  in his  return  his total expenditure as Rs.  5844/24  p.,  his expenses  exceeded in any case the prescribed limit  of  Rs. 9000/-.   The  contents  of paragraph  14  of  the  election petition are denied in paragraph 14 of the written statement of the first respondent wherein he has stated that he  never used most of the vehicles mentioned in the election petition including the jeeps 6424 and 1 1 16.                             112 Of  the  Issues framed, only Issues Nos. 14, 15 and  16  are relevant  for the purpose of this appeal.  These Issues  are as follows:-

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             "(14)  Whether  respondent No  1  incurred  or               authorised  expenditure on the  various  items               enumerated  in  subparagraph  (a)  to  (1)  of               paragraph 14 of the election petition.               (15)  If  any  of  the  items  of  expenditure               referred  to in the preceding issue is  proved               to   have  been  incurred  by   the   returned               candidate,  does  the addition of  that  extra               amount to the amount of expenses shown by  the               returned  candidate to have been  incurred  by               him  in the return of election  expenses  take               the  total  amount  spent  by  him  above  the               statutory limit of Rs. 9,000/- ?               (16)  If  the preceding issue is  proved,  has               the  returned  candidate  not  committed   the               corrupt  practice  defined in  section  123(6)               read with section 77 of the Act ?" Before  we turn to the evidence bearing on these  issues  it would  be  appropriate to state here certain  facts  in  the background  which  must be kept in mind in  considering  the evidence.   The  appellant  contested  the  election  as   a candidate   of  the  Indian  National   Congress.The   first respondent had filed several nomination papers, two of  them as a candidate of the Bhartiya Jan Sangh and two as indepen- dent.   He  had  signed the pledge of  the  Jan  Sangh,  but ultimately  be  contested  the election  as  an  independent candidate.  He had been a member of the Municipal  Committee of  Kaithal  on  the Jan Sangh ticket and  was  elected  its President  in April, 1971 as a nominee of that party.   Some time  after the election in question in the  present  appeal was  over,  the first respondent was served with  a  charge- sheet  by  the Bhartiya Jan Singh, Haryana  State,  alleging that he had betrayed the Organisation by failing to join the Jan  Sangh  Legislature  Party which, it was  said,  he  had promised  to  do as soon as the result of the  election  was declared;  finally  he was expelled from the  Party.   These facts are not in dispute. The  first witness examined by the petitioner to prove  that the  two  jeeps  in  question  were  hired  for  the   first respondent  is P.W. 3 Jagjit Singh, a taxi driver of  Delhi. He proves the letter Ext.  P.W. 3/1, said to have been given to  him  by Brij Mohan, a neighbour, who asked him  to  send four  or  five jeeps to respondent Charan Dass  at  Kaithal. Ext.  P.W. 3/1 is a letter dated February 20, 1972 addressed to  Brij  Mohan  by  one  Duni  Chand  Gupta.   The   letter translated  into  English from the original  Urdu  reads  as follows               "Kaithal               20-2-72.               Babu Brij Mohan Ji.               113               It is requested that I had taken from you  two               Nos. jeeps on dated 18-2-1972 bearing No. 1116               and 6424 for the election of Shri Charan Dass,               for which I had paid you the amount of  Rupees               two thousands in Advance.  Now I require  five               Nos.  jeeps more.  If you can manage then  in-               form  at  once so that  may send  the  advance               through   somebody.   Inform  at  once,   hire               charges are no consideration, the work  should                             be done.                          Sd/- Duni Chand Gupta,                             Kaithal.                   C/o  Shri  Charan  Dass,  Election  Office               Kaithal."

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Two  things are to be noted in this letter, that Duni  Chand claims  that  he had paid Rs. 2000 in advance  for  the  two jeeps  bearing numbers 1116 and 6424, and that he gives  his address, care of Charan Dass election office, Kaithal.   The evidence  of P.W. 3 is that he could secure only  two  jeeps from a place called Abohar which he sent to Charan Dass. The next witness who speaks about these two jeeps is P.W.  5 Puran  Chand.   He is a shopkeeper in  District  Shri  Ganga Nagar in Rajasthan.  HE claims that he was the owner of jeep numbered  6424  and his cousin Munshi Ram  owned  the  other jeep,  1116.   His evidence is that he and Munshi  Ram  left Shri  Ganga  Nagar on February 13, 1972 with the  two  jeeps reaching Delhi the next day where they contacted Brij Mohan, a commission agent, for getting their "vehicles hired  out". On  February  17, Duni Chand came to Brij Mohan  seeking  to hire two jeeps.  Brij Mohan settled the terms of hire  which were  that Duni Chand would pay Rs. 130/- per day  for  each jeep  from February 18 to March 11, 1972 besides  Rs.  51per day to the driver of each jeep and also pay for the  petrol. The witness says that Munshi Ram’ and he were each paid  Rs. 1000 in advance 6y Duni Chand.  On March 4, Duni Chand  paid him  Rs.  3500./- at Kaithal towards the hire  of  both  the jeeps  and got a receipt from him which is Ext.   P.W.  511; the balance, Rs. 740//-, was collected later by the  drivers of the jeeps. P.W.  6  Surja Ram and P.W. 7 Madan Lal are the  drivers  of jeeps  Nos. 1116 and 6424 respectively.  P-W. 6 claims  that respondent Charan Dass used to go about in his jeep and  the respondent’s own car "used to remain parked in those  days". The witness states further that the respondent never went in the  jeep  driven  by Madan Lal.   The  statement  that  the respondent’s  car’ was Dot used during the election days  is not  consistent with what appears from paragraph 14 (b)  and (c) of the election petition where the petitioner states 114 that the respondent used his car in connection with election campaign  but  has not shown the expenses incurred  on  that car. P.W.  7 Madan Lal’s evidence is that on arriving at  Kaithal with the jeep the witness was deputed by Duni Chand to  work at  village  Cheeka.   This witness claims  that  the  first respondent travelled in his jeep on two occasions, first  on the 18th of February and on Another day, thus  contradicting P.W. 6 who had said that the respondent never used the  jeep driven by P.W. 7. From the evidence of P.W. 3, P.W. 5, P.W. 6 and P.W. 7 it would appear that Duni Chand hired the two jeeps in question to help the election campaign of the respondent. Duni  Chand,  also known as Duli Chand, was  examined  as  a Court  Witness.   His evidence is that he and six  or  seven other persons       had  formed a party to work against  the Congress    candidates   in   the   Kaithal    and    Pehowa constituencies.   This party, however, was not given a  name nor  did it hold any meeting or issue any poster.   He  says that  each  member of this party contributed Rs.  1000/-  to carry on the election propaganda.  He admits having  written the  letter  Ext.  P.W. 3/1, and that he had hired  the  two jeeps in question   through  Brij Mohan to work against  the Congress  candidates  in the aforesaid  two  constituencies. According  to  him the members of this party went  round  in those jeeps to canvass support for respondent Charan Dass as they  considered  the  respondent  to be  the  best  of  the candidates.   Asked about the reason why in the letter  Ext. P.W.  3/1 he had given his address as "care of Charan  Dass’ election office,    Kaithal", he says that this was done "to

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facilitate  Brij Mohan’s man to find me for  collecting  the balance  of  the  hire money.........  the  man  could  have inquired the address of my shot) from the election office of Charan  Dass".   The witness denies that he had  given  that address because he was "incharge of the election work of the respondent  relating to employment of motor vehicles".   The witness  adds that he and his friends who worked  for  first respondent  at  the  election did not  maintain  any  record containing  particulars  of how the jeeps were  employed  by them during those days.  In answer to a question put to  him in  cross-examination  regarding a note-book  which  figures prominently  in this case, Duni Chand admits that  tic   not book, Ext.  P.W. 8/5, is partly in his handwriting. This note-book which we will consider in due course was also written  partly  by Raghbir Chand who like  Duni  Chand  was examined  as  a Court Witness.  He claims to be one  of  the group of seven or eight persons spoken of by Duni Chand  who were helping the first respondent. The petitioner herself deposing as P.W. 30 has narrated  how she came to know of the said two jeeps being  employed  by respondent Charan Dass.  According to her fifteen to  twenty jeeps were used by him for his election work.  She noted the numbers of these 115 vehicles  in a diary; this record is based on  her  personal observation  and  also  on  information  received  from  her workers.  In answer to a question put by the Court she  read out  the  numbers  of the jeeps noted in her  diary  in  the following order: "5948, 6055, 6009, 2574, 1710, 9997,  6424, 1116, 6675, HRJ-5324, HIM-4147, 6170 and 8363." The  note-book,  Ext.   P.W.  8/5,  seems  to  be  the  most important  documentary  evidence produced on behalf  of  the petitioner to prove that the two jeeps in question had  been employed  by respondent Charan Dass.  On some pages of  this note-book are recorded in an extremely haphazard manner  the numbers  of several vehicles with certain dates and  figures seeming to indicate when some of the vehicles first reported for  duty  and how they were deployed.  The  note-book  also mentions  different sums of money stating or hinting at  the sources’ wherefrom these amounts were collected and includes certain  entries  suggesting payments made for  the  use  of these vehicles.  The two jeeps, 6424 and 1116 are among  the vehicles mentioned in the note- book.   The       petitioner states in her evidence that P.W. 9 Mohan Bahadur brought the note-book to her at her residence in Kaithal in the    last week  of  September,  1972.  P.W.  9  Mohan  Bahadur,  whose deposition was recorded on October 5, 1972, states that  the note-book  was given to him "last week" by Punnu Ram,  Joint Secretary  of  the  Kaithal Jan  Sangh.   According  to  the witness,  Punnu  Ram told him that Jan  Sangh  had  expelled Charan  Dass from the Party and that the note-book would  be of  help  to the petitioner in her election  petition.   The witness  adds  that Punnu Ram knew that the  witness  was  a supporter of the petitioner. In this note-book the name of Anil Kumar Gupta, a son of the first  respondent,  appears  to be written  at  two  places. Admittedly, Anil Kumar was a B.A. student in the R. K. S. D. College, Kaithal, and one of his subjects was Civics.  Pages 3  to  8 of the note-book contain certain notes  on  Civics. According  to  Mohan Bahadur and the petitioner  there  were three  loose  sheets of paper inside  the  notebook.   These loose sheets of paper which have also been produced with the note-book  are: (1) a Hindi manuscript  containing  instruc- tions for the polling agents (Ext.  C.W. 2/1), (2) bill of a loudspeaker  dealer  in  the name of  Charan  Dass  for  Rs.

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101/50p. (Ext.  P.W. 24/1), and (3) a receipt in Hindi dated March  6,  1972 for Rs. 41/50p. for  hire  of  loudspeakers, signed  by  one Shadi Lal Shad, a worker of  the  Jan  Sangh Party. As  stated  already, it is difficult to find  any  order  or method in the entries recorded in this note book though  the fact  that it belonged to the respondent’s son might  appear to  lend  some  authenticity to  the  document.   Respondent Charan  Dass  (R.W.15)  and his election  agent  Gian  Chand (R.W.14)  both  however  deny that  any  such  notebook  was maintained  by  them or that they bad asked  Duni  Chand  or Raghbir  Chand to make the entries therein.  It is also  not clear,  how  the notebook found its way lo  the  petitioner. Punnu  Ram, Joint Secretary of the Kaithal Unit of  the  Jan Sangh Party, who is said to 116      have  handed  over the note-book to Mohan  Bahadur  was examined by the respondent (R.W.13). Punnu Ram denies having made over any note-book to Mohan Bahadur whom he says he did not know.  His evidence is that he saw the note-book for the first time in Court. Punnu Ram admits that lie worked for the first respondent at the  election  on behalf of his Party.   The         witness proves  a  document (Ext.R.W.13/1)  containing  a  statement signed  by  Shadi Lal Shad that he had  "got  prepared"  470 small  flags  and 1000 stencils for the total  cost  of  Rs. 38.80p.  This document contains the signature of  Punnu  Ram who appears to have          verified the correctness of its contents.  In his deposition Punnu Ram explains that the Jan Sangh  "had  got  the  flags  and  the  election  symbol  of respondent  No.  1  prepared as  the  party  was  supporting respondent  No.  1".  The witness adds that  the  Jan  Sangh spent a total amount of Rs. 400/- or Rs. 500/on the election of the first respondent.  This part of Punnu Ram’s  evidence is  relevant  to the other aspect of the case,  namely,  who really paid for the two jeeps if it was found that they  had been employed for the respondent’s election campaign.      Raghbir  Chand  who  claims to have made  some  of  the entries  in the note-book was examined as a  Court  Witness. His evidence is that Janardan Singh who was his friend and a member  of  the  Jan Sangh had asked  him  to  make  certain entries in the note-book.  He says that the first column  of page  260 and the whole of page 261 of the notebook were  in his  handwriting.   The  two  jeeps,  1116  and  6424,   are mentioned  in  the first column of page 260  with  the  word ’Delhi’ in Urdu written against them.  According to  Raghbir Chand                pages were blank when the note-book was brought  to him by Janardan Singh.  Raghbir Chand says  that lie  did not know why Janardan Singh wanted him to write  in the note-book and that he obliged his friend without  asking any questions.  The writings on pages 260 and 261 appear  to be in opposite directions, which is one example of the  lack of  order and method in maintaining the note-book.   Raghbir Chand’s  explanation is that after he had finished  what  he was  asked  to write on page 260 and closed  the  note-book, Janardan Singh thought of getting some more entries made  by him  and opened the note-book at page 261 upside  down,  and Raghbir  Chand  copied on the page as he found  it  whatever Janardan Singh dictated to him. Janardan  Singh who claims to be a worker of the  Jan  Sangh was  also  examined as a Court witness.   According  to  him Pawan  Kumar, Joint Secretary of the Jan Sangh  at  Panipat, came to see him towards the end of March, 1972 and left with him  the  note-book (Ext.  PW. 8/5) and a  Paris  containing certain  figures  in  English and wanted him  to  get  these

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figures which were all numerals, copied into the  note-book. The witness did not ask him why, and as a worker of the  Jan Sangh  proceeded to "obey his orders".  He says that he  and Raghbir  Chand had "blind faith" in each other, and  at  his request Raghbir Chand copied the figures from the Parcha  on pages  260  and 261 of the note-book.  These  pages  however contain  certain names of places and persons and also  other words; according to Raghbir                             117 Chand these also were in his handwriting, but Janardan Singh maintains  that  the  Parcha from which  Raghbir  Chand  had copied  did not contain any such names or  words.   Janardan Singh’s  evidence  is that later Pawan Kumar  collected  the note-book from him. At  the  conclusion  of  Janardan  Singh’s  deposition,  the learned  Judge  appears  to  have recorded  a  note  of  his impression that "throughout his statement, this witness  has been displaying nervousness, and prevaricating and  avoiding to  give  straightforward answers to the  questions  put  to him". Duni  Chand’s  version is that what he had- written  in  the notebook  was  at the instance of Rattan Lal,  President  of Ward  No. 8, Kaithal Jan Sangh Party.  Duni Chand says  that Rattan  Lal expressed displeasure at the respondent  failing to  honour  his promise to join the  Jan  Sangh  legislature party,  if elected, and enquired of Duni Chand if  he  could produce  any evidence which would go against the  respondent in  the  election dispute, then pending in the  High  Court. Duni  Chand  made  over  to Rattan  Lal  the  receipt,  Ext. P.W.5/1,  given by Puran Chand for Rs. 3500/-  paid  towards the  hire  of  the jeeps 1116 and 6424.  Five  or  six  days thereafter,  Rattan Lal again came to see Duni Chand with  a diary  and a note-book.  Duini Chand’s evidence is  that  he copied  on  the different pages of the  note-book  ,whatever Rattan Lal read out from the diary.  This was about a  month after the election. Duni Chand says that when thenote-book was brought to him, it contained all the other writings thatare now there. Duni Chand’s evidence is that he did not questionRattan Lal in    what way the note-book would be used against theresponde nt but  wrote to his dictation on such pages of  the  note-book and in such order as he was told.  According to Duni  Chand, Rattan  Lal took away the diary and the note-book after  the writing was done. Certain entries in the note-book apparently corroborate  the oral  evidence as to some payments made towards the hire  of the  two  jeeps  but it does not  record  all  the  payments claimed  to have been made.  For instance, P.W.6 Surja  Ram, driver of jeep No. 1116, stated that he had signed in a note book  on March 12, in acknowledgement of the receipt of  Rs. 740/-, being the balance of the amount due on account of the two  jeeps.   There is however nothing in the  note-book  to support this statement.  Assuming Surja Ram’s evidence to be true,  one would have expected to find his signature in  the notebook. Pawan  Kumar, Provincial Secretary, Haryana Jan  Sangh,  was the   first  witness  to  be  examined  on  behalf  of   the petitioner.   He disclaims all knowledge of the  Parcha  or the note-book which, according to him, he saw for the  first time in court.  His evidence adds to the mystery surrounding the note-book.  The witness states that the first respondent was in fact a Jan Sangh candidate but was allowed to contest as an independent as a matter of election strategy.  He adds that he went to Kaithal on March 14, 1972 and requested  the respondent  to  declare  that he would join  the  Jan  Sangh

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legislature party. 118 The  respondent is said to have replied that he would  think over   the  matter  and  then  inform  the   witness.    The respondent,  it  is  alleged, was thereafter  asked  on  the telephone  on  March  16, to attend  the  Working  Committee meeting of the State Jan Sangh at Karnal to be held the next day.  Though the respondents reply on the telephone was that he  would attend the meeting, he did not ultimately  do  so. About two days after the meeting, the witness went again  to the  respondent for an answer but still the  respondent  did not give any definite reply.  The witness also states that 4 or 5 days after the result of the election was declared, the respondent  came to Jan Sangh office to have the  return  of election expenses prepared in consultation with the  witness and the President of the State Jan Sangh Party.  The witness proves the notice.  Ex.  P.W. 1/3, issued on March 25,  1972 asking the first respondent to show cause within one week of the receipt of the notice why he should not be expelled from the  party  because  of his failure to join  the  Jan  Sangh legislature party in breach of his previous assurance. Pawan Kumar goes on to say that in the course of his  visits to Kaithal to supervise the election campaign in support  of the  respondent, he used to find Duni Chand sitting  in  the respondent’s  election  office and balloting duties  to  the different  vehicles  and  also  making  payments    in  that connection.  it  is also the evidence of this  witness  that though   the  first  respondent  was  really  a  Jan   Sangh candidate,  the Party did not incur any expenditure  on  his election.  According to him even the expenses of the  public meeting  arranged by Jan Sangh in support of the  respondent at  Kaithal  on  March 4, 1972 were met  by  the  respondent himself. The  evidence of Pawan Kumar does not seem to be  altogether consistent  and  some  of  his  statements  also  appear  to contradict  what certain other witnesses have  said.   Pawan Kumar  has stated that 4 or 5 days after the result  of  the election was declared he met the   respondent    when    the latter  came to the Jan Sangh office to have his  return  of election expenses prepared.  The result of election was  de- clared  on March 13, 1972.  On March 14, the witness  claims to  have  seen the respondent at Kaithal to request  him  to declare that he would join the Jan Sangh legislature  party. On  March  16, be requested the respondent on  telephone  to attend the meeting of the Party to be   held  the next  day. On March 17, the meeting was held but the respondent did not attend.   On March 19, the witness again went to Kaithal  to have  a discussion with the respondent and on March 25,  the show-cause notice was issued.  From the above list of  dates which appear from Pawan Kumar’s own evidence it is difficult to reconcile his other statement that about 4 or 5 day after the respondent was declared elected, the respondent came  to the Jan Sangh-office to have the return of election expenses prepared  in         consultation with the witness  and  the President  of  the Jan Singh Party.  Pawan  Kumar  had  also stated that there was no telephone in the office of the  Jan Sangh  Party at Kaithal.  This is contradicted by P.W.18  B. L.  Khanija, Accounts Officer, Telephones,  South  Division, Ambala.  His evidence                             119 based  on his office record is that the Secretary,  Bhartiya Jan  Sangh,  Kaithal,  was the  subscriber  of  the  Kaithal Telephone No. 497 from February 16, 1972 to March 15,  1972. This  was,  P.W.18  added,  a  casual  connection  and   was installed in the house of Rattan Lal. P.W.18 further  stated

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that  at the time of installation of the telephone  Rs.  180 were charged as advance rent, Rs. 30 as installation charges and  Rs.  1000  as  adjustable  security,  and  that   after adjusting the outstanding bills against the security deposit of  Rs.  1000, the balance was refunded to  the  subscriber. The  total  expenses  incurred by  the  subscriber  of  this telephone  came to Rs. 385.  The original application  dated February  4, 1972 for installation of this casual  telephone connection  was  also produced in Court, an  English  trans- lation of (Ext.P.W.18/3) reads as follows: "Bhartiya Jan Sangh, Kaithal Mandal. Kaithal, dated the 4th February, 1972. To, The S.D.O. Telephones, Karnal. Subject  :-New  connection for the office  of  Bhartiya  Jan Sangh. It is submitted that a. telephone connection is required for the office of Bhartiya Jan Sangh at Kaithal for one and half month. Kindly get the same installed.                                      Yours faithfully,                                     Sd/- Amar Nath, M.C.                                      Bhartiya Jan Sangh,                                            Kaithal" Pawan  Kumar’s  assertion that Jan Sangh did not  spend  any money  on  the respondent’s election is belied not  only  by R.W.13 Punnu Ram but also by another witness who deposed for the petitioner.  It is P.W. 24 Inderjit.  He is an  employee of a shop at Kaithal that lends loudspeakers on, hire.  P.W. 24  states  that  one  Rai Kumar, whom  he  described  as  a supporter  of the Jan Sangh, came to his shop to hire  loud- speakers  on  March 4, 1972 and he paid charges a  few  days thereafter.    This   witness  proves  the   receipt,   Ext. P.W.24/1,  for  Rs.  101/50p. given  by  him.   The  receipt appears to have been made out in the name of the respondent, Charan Dass.  The witness states that though the receipt was in the name of Charan Dass he never came to the shop for the loudspeakers  and the hiring charge was paid by  Rai  Kumar. P.W. 24 adds that he had written the name of Charan Dass  on the receipt at the instance of Raj Kumar. The   inconsistent  statements  of  Pawan  Kumar   and   the contradictions  between  his  evidence and  that  of  P.W.24 Inderjit  who also was a witness for the petitioner, to  say nothing about the evidence of 10SC/75-9 120 Punnu  Ram,  though he too was a member of  the  Jan  Sangh, suggests  that  either Pawan Kumar had no  knowledge  of  at least some of the facts he was talking about or that some of his statements were deliberately false. On the evidence discussed above the findings recorded by the High Court may be summarised as follows 1.Duni Chand went to Delhi on or about February 17,  1972 and  hired the two jeeps in question at the rate of Rs.  130 per  day for each jeep with effect from February  18,  1972. Duni Chand had paid Brij Mohan Rs. 2000 towards the hire  of the  two jeeps and a further sum of Rs. 3500 to Puran  Chand (P.W. 5) on March 4, 1972 at Kaithal.  Altogether Duni Chand spent Rs. 6240 for the two jeeps.  Both the jeeps were  used in  the respondent’s election campaign from February  18  to March 11, 1972 under the charge and direction of Duni Chand. 2.The note-book, Ext.  P.W.8/5, belonged to the respondent’s

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son Anil Kumar Gupta and the notes on Civics that this  book contains were in his handwriting.  The other entries in  the note-book relating to matters concerning the election of the respondent  were  made partly by Duni Chand  and  partly  by Raghbir  Chand.  The note-book is not a document  maintained in  the  regular  course of business  and  contains  certain haphazard   entries  which  cannot  be  used  for   foisting liability on any one without definite and clear proof of the genuineness   and  correctness  of  these   entries.    The, witnesses  who proved some of the entries in the  note-book, Duni  Chand  and Raghbir Chand, have both  denied  that  the entries  are genuine.  However, their      that the  entries were fabricated about a month after the election and in  the circumstances  stated by them is not believable.   The  fact that  the evidence of these two witnesses was false in  this regard  does  not  necessarily  prove  the  correctness   or genuineness  of these entries.  Another  circumstance  which makes the note-book suspect is the fact that the numbers  of the  various jeeps mentioned in the note-book  are  recorded therein  in  the same sequence in which they appear  in  the petitioner’s  diary.  She claims to have noted in her  diary the numbers of the jeeps working for the respondent  several months before the note-book was made available to her.  This is difficult to explain away as coincidental. Having found that the two jeeps had been hired by Duni Chand to  be used in the respondent’s election campaign, and  were in  fact so used, the question that the High Court  set  for itself to answer was, whether on these findings it could  be said  that the first respondent incurred or  authorised  the expenditure of Rs. 6240 spent on account of these two jeeps. There  was  some  dispute  before  us  as  to  whether   the allegation  of  authorization could arise on  the  issue  as framed.   It was contended on behalf of the respondent  that reading issue No. 14, which is the relevant issue, carefully in  the  light of the statements made in  the  various  sub- paragraphs  of  paragraph 14 of the  election  petition,  it would appear that it raised only the question whether the                             121 respondent  himself incurred the expenditure.   However,  it seems to us that before the High Court the parties proceeded on  the footing that the issue covered both the  allegations and  the  scope  of the enquiry cannot be  limited  at  this stage. The High Court answered the question in the negative on  the following  reasons.   All  the witnesses  deposing  for  the petitioner  said that the payments in respect of  the  jeeps were made by Duni Chand.  Of course there are entries in the note-book,  Ext.  P.W. 8/5, which suggest that part  of  the expenditure incurred on account of the two jeeps was paid by the  respondent’s  brother  Arjan Das, and  also  that  some amount was taken from the respondent himself.  But the  High Court found that the note-book which does not appear to have been  kept  in  the regular course of  business  was  not  a reliable  document  in the absence of  independent  evidence proving  the correctness of the entries therein.   The  High Court  was further of the view that from the fact  that  the respondent  used  these  jeeps once or  twice,  it  did  not necessarily  follow that he paid for their hire,  it  being well-known  that  candidates at an election very  often  use their  supporters’  vehicles.  There is no evidence  of  the respondent   incurring  or  any  direct  evidence   of   his authorising  the  expenditure incurred for the  jeeps.   The respondent did not produce his account of election expenses, his case being that the papers containing the accounts  were destroyed  by him after the return of election expenses  was

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prepared.   It  was argued on behalf  of  the  petitioner, relying  on  the  case of D. P. Mishra  v.  Kamal  Narain  & Anr.,(1)  that from the aforesaid fact an adverse  inference should  be drawn against the respondent and it must be  held that  the expenditure was really incurred by the  respondent himself.  The High Court pointed out that in D. P.  Mishra’s case  the worker of the returned candidate who was  supposed to  have incurred the expenditure in question in  that  case was  not  examined, and this circumstance  considered  along with the fact that the returned candidate bad not chosen  to produce  his accounts proved the case against him.   In  the instant case, however, Duni Chand who made the payments  was examined but be denied that the respondent authorised him to make these payments.  This part of Duni Chand’s evidence was accepted  by the High Court though he was not  considered  a straightforward  witness  and  a  substantial  part  of  his evidence  was disbelieved.  The decision in D.  P.  Mishra’s case  (supra) indeed turns on facts somewhat different  from the facts of this case.  The High Court has found that there is also no reliable circumstantial evidence in this case  to connect the respondent with the expenditure incurred by Duni Chand. It  now seems settled that the findings of fact recorded  by the  High Court should not be disturbed in an  appeal  under section 116-A of the Act unless there was some serious error in these findings.  It appears from the record of this  case that  the  learned  Judge of the  High  Court  recorded  his impression  about the demeanor of the witnesses whenever  he thought  necessary.   The  findings  based  solely  on   the demeanour of the witnesses cannot be reversed in appeal, but (1)  [1971] 1 S.C.R. 9. 122 the conclusions of fact reached upon a consideration of  the probabilities  can  be  tested to see if  they  contain  any serious  error.   We find no reason to disturb  any  of  the findings  of  fact  recorded by the  High  Court  summarized above.   These  findings  appear  to  be  justified  on  the evidence  which we have discussed.  We ’agree with the  High Court’s views on the credibility of the witnesses.  We  also agree  that the note-book is not a reliable document in  the absence of independent evidence to prove the genuineness  of the entries therein.  What we have to decide is, whether the High  Court was right in its conclusion from these  findings that  the first respondent did not authorise Duni  Chand  to spend any amount on the hiring of the two jeeps in question. The  allegation  that  Duni  Chand  was  in-charge  of   the transport arrangements for the respondent if true, would  be a circumstance which, taken with other circumstances,  might indicate that it was the respondent’s money that Duni  Chand was  authorised to spend.  If the note-book is left  out  of consideration,  as it must be, the other evidence on  record does  not  appear  to  us to be  sufficient  to  prove  this allegation. It is well established that a charge of corrupt practice  is quasicriminal in nature and must be proved beyond reasonable doubt.   There  is no direct evidence  that  the  respondent himself paid for the two jeeps.  The question is whether  it is possible to infer from the circumstances discussed  above that  Duni Chand was authorised by the respondent  to  spent the said amount of Rs. 6240 for these vehicles.  In the case of Samant N. Balkrishna & Anr.’v. George Fernandez & Ors.(1) this  Court  held that the circumstantial  evidence  led  to prove corrupt practice must exclude every hypothesis  except that  of guilt.  What are the circumstances here from  which one  could  infer  that Duni Chand  was  authorised  by  the

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respondent ? It is alleged that Duni Chand was in-charge  of the  transport  arrangement for the  respondent’s  election. That Duni Chand worked for the respondent at the election is proved.  It has also been found that he hired the two  jeeps and  used them for the respondent’s election  campaign.   It may also be said that the letter, Ext.  P. W. 3/1,  suggests that   Duni  Chand  used  to  operate  at  times  from   the respondent’s election office.  But from these  circumstances only,  would the inference be justified that the  respondent put Duni Chand incharge of his transport arrangements ?  The High Court has taken the view, which we endorse,- that at an election  people  work for a candidate prompted  by  various motives  even if they are not employed by the  candidate  to work  for him.  The story that Duni Chand along with six  or seven   other  persons  formed,  a  group  to  support   the respondent  has  been disbelieved, and rightly.   But,  even then, it is difficult to say with certainly that it was  the respondent  who  engaged Duni Chand to be  incharge  of  the vehicles used in his election campaign.  There is no  direct evidence that the respondent put Duni Chand in funds and one hardly  expects to find such evidence in a case  like  this. We have found that the note-book is not a reliable document. It is therefore (1)  [1969] 3 S.C. R. 603 at 637.                             123 not  possible to rely on the entries in the note-book  which seem  to suggest that a part of the money paid for  the  two jeeps was taken from the respondent.  The High Court did not believe  that the notebook was entirely fabricated but  felt it was unwise to rely upon it.  The mystery of the note-book has not been solved, but the unsolved mystery cannot be used as  proof to bring home the charge against  the  respondent. Whose  money it was then that Duni Chand spent-?  It is  not believable  that Duni Chand spent his money, but  the-  only alternative is not that it was the respondent’s money  which he  authorised Duni Chand to spend.  It has been found  that the Jan Sangh incurred some expenditure on the  respondent’s election campaign in spite of the denial of Pawan Kumar that the  Party  did  not  spend anything.  We  do  not  find  it possible  to  accept  the  statement  of  Punnu  Ram,  Joint Secretary  of the Kaithal Unit of the Jan Sangh Party,  that the  total  amount spent by the Party  on  the  respondent’s election  was between Rs. 400 and Rs. 500.  Apparently,  the High  ’Court  also did not rely on this part of  Punnu  Rams evidence.   It is not necessary however to investigate  what amount exactly came from which source.  It is clear that the respondent’s election campaign received financial assistance from  other sources, which makes it difficult to  reach  the conclusion that none but the first respondent himself  spent the amount in question.  We do not know what our  conclusion would  have  been  had the case fell to be  decided  on  the probabilities only, but is no,. possible to say that it  has been proved beyond reasonable doubt that Duni Chand paid for the jeeps from the money he received from the respondent and the respondent authorised the expenditure.  Counsel for  the appellant said that it would be hardly possible ever to  get hold  of such evidence in an election dispute.  That may  be so, but this is how the law stands.  We agree with the  High Court  that the allegation of corrupt practice  against  the respondent has not been proved beyond reasonable doubt. The  appeal is dismissed; considering all the  circumstances of the case, we make no order as to costs. Appeal dismissed. V.P.S. 124

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