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PETITIONER: SHIV CHARAN SINGH

       Vs.

RESPONDENT: MAHARAJ KUMAR SRI BRIJENDRA PAL

DATE OF JUDGMENT26/08/1975

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1976 AIR  785            1976 SCR  (1) 416  1976 SCC  (2) 928

ACT:      Election Law-Finding  of fact  recorded by  High Court- Supreme  Court,   if  can  interfere  with  appraisement  of evidence.

HEADNOTE:      Representation of  the People  Act, 1951, s.77-Election expenses Failure of successful candidate to maintain account in prescribed manner, if constitutes corrupt practice.      The  appellant   and  the   respondent  were  the  main candidates in  the election  lo  the  Rajasthan  Legislative Assembly from  the Karauli  constituency. The  result of the election was  declared on  March 12, 1972 and the respondent was declared  elected. The appellant challenged the election of the  respondent on the ground that the respondent and his election agent  Jagdish  Pal  published  and  got  published statements of fact in relation to the personal character and conduct of  the appellant  which were  false and  which they believed to be false or did not believe to be true and which statements  were  reasonably  calculated  to  prejudice  the prospects of  the appellant’s election. The second ground on which the  election of’ the respondent was assailed was that the respondent and his election agent deliberately failed to maintain  regular  and  correct  account  I  :  of  expenses incurred by  them in  connection with  the election and that they incurred  or authorised expenditure in contravention of s.77 of  the Representation  of the  People Act,  1951.  The petition was  resisted by  the respondent  and he denied the various allegations  made by the appellant. Five issues were framed on  the basis  of the pleadings before the High Court Issues (1) and (2) were decided against the appellant. These issues related to the first ground. The view of the findings on these issues, issue (3) was held not to arise. Issues (4) and (5)  relating to  expenses were also decided against the appellant. As a result, the election petition was dismissed. This appeal  has been preferred by the appellant against the judgment of the High Court dismissing his election petition.      Dismissing the appeal, ^      HELD: (i)  It is  well established  that in an election appeal Supreme  Court should not interfere with a finding of

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fact recorded  by the High Court based upon the appraisement of evidence  unless such finding is vitiated by some glaring infirmity. [420F] F      (ii) Even  if the  account of election expenses was not maintained in  the prescribed  manner, that  fact would  not constitute a corrupt practice. [419G]      (iii)  The  High  Court  has  considered  the  evidence brought on  record and  has held  on  appraisement  of  that evidence that  there was no cogent material to show that the respondent had  incurred any expenditure over and above what had been  shown in  his return.  No cogent ground whatsoever has been  made out lo interfere with the appraisement of the evidence by the High Court. [419H-420 A] G      (iv) The  correctness of  the figure of Rs. 3,523.27 as expenses incurred  for the  purchase of petrol is vouchsafed by the  statement of  account filed by Karauli Auto Stores a family concern  of the respondent. Nothing has been shown as to why the statement of account field by that concern cannot be accepted. During the pendency of the trial on application filed by  the appellant.  the High  Court directed  that the account books  maintained by  the respondent  as well as the cash book  and the  credit and cash vouchers of Karauli Auto Stores might  be shown  to the appellant’s counsel. In spite of that  order the  appellant or his counsel did not examine those account  books and documents. Nothing was consequently brought on record to question the correctness of the entries in the account books. [420B-C] 417      (V) The High Court declined to accept the oral evidence adduced by  the appellant  in support  of his  plea that the account does  not  correctly  show  the  expenses  regarding certain number  of vehicles  engaged by  him.  The  evidence adduced by  the appellant  was not only not supported by any documents, it  ran  counter  to  the  documents  which  were produced by the respondent and some of which had been signed by the witnesses produced by the appellant. [420EF]      (vi) The  plea of  the respondent  that he  was charged only Rs.  35/- as  daily hiring charge for the truck because he presented  the requiring  of those  trucks  by  making  a representation  that  they  were  needed  for  his  election compaign, has  been accepted by the High Court as plausible. There is  nothing cogent  made out as to why a contrary view should be taken. [420H]      (vii) So  far as  the impugned  issues of  Hindi  daily Kronch and  pamphlet Ex.2  are concerned, there is no cogent evidence to  show on  the record  that Radhey  Shyam  Sharma published those  issues and  the pamphlet at the instance of or with the consent of the respondent or his election agent. It is  indeed evident  from the  use of Kronch dated October 15, 1970  that  Radhey  Shyam  Sharma  was  hostile  to  the appellant and  had been  criticising him since 1970 about 14 months before  the election. There is, therefore, nothing to rule out  the possibility that Radhey Shyam Sharma published the impugned  issues and pamphlet at his own and without the consent of the responaent or his election agent. [421AB]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: civil  Appeal No. 767 of 1973.      From the Judgment and order date the 9th March, 1973 of the Rajasthan High Court at Jodhpur in Election Petition No. 10 of 1972.      D. P.  Singh, Subhagmal  Jain and  R. K.  Jain, for the

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Appellant.      A. K  Sen, Yogeshwar Prasad, S. K. Bagga, Mrs. S. Bagga and Miss Yash Bagga, for the Respondent      The Judgement of the Court was delivered by      KHANNA, J.-This  is an  appeal  by  Shiv  Charan  Singh against the  judgment of  the Rajasthan  High Court  whereby election petition  filed by  the appellant  to question  the election  of  Brijendra  Pal  respondent  from  the  Karauli constituency to the Rajasthan Assembly was dismiss cd.      The  appellant   and  the   respondent  were  the  main candidates in  the election  to  the  Rajasthan  Legislative Assembly from  the Karauli  constituency. The  result of the election was  declared on  March 12, 1972 and the respondent was declared  elected. The appellant challenged the election of the  respondent on the ground that the respondent and his election agent  Jagdish  Pal  published  and  got  published statements of fact in relation to the personal character and conduct of  the appellant  which were  false and  which they believed to be false or did not believe to be true and which statements  were  reasonably  calculated  to  prejudice  the prospects of  the appellant’s election. The second ground on which the  election of  the respondent was assailed was that the respondent and his election agent deliberately failed to maintain regular  and correct  account of expresses incurred by them  in connection  with  the  election  and  that  they incurred or authorised expenditure in contraction of section 77 of the Representation of the People Act, 1951. As regards the first  ground, it was stated that the respondent and his election agent  got published  news item Ex. I in "Kronch",a Hindi 418 weekly dated  February 25,  1972 published  and  printed  in Jaipur Radhey  Shyam Sharma  was the  editor of that weekly. The  aforesaid   news  item  was  stated  to  contain  false defamatory statements  of fact  in relation  to the personal character and  conduct of  the appellant.  It was added that the respondent  and his  election  agent  and  Radhey  Shyam Sharma believed  those statements,  which were calculated to prejudice the  prospects of  the appellant’s election, to be false and  did not  believe them  to be  true. Radhey  Shyam Sharma was also stated to have addressed an election meeting of the  respondent on February 27, 1972 at Chogan in Karauli city and  read out  news item Ex. 1. Copies of the aforesaid issue of Kronch were also stated to have been distributed in that meeting  in the  presence of  the  respondent  and  his election agent.  According further  to the appellant, Radhey Shyam Sharma  got published  pamphlet Ex.  2 printed  at the instance of  and with  the consent of the respondent and his election agent.  This pamphlet  was also as objectionable as news item  Ex. 1.  The pamphlet  was  stated  to  have  been distributed by the respondent, his election agent and Radhey Shyam Sharma  at an  election meeting at Bhudara on March 2, 1972. Radhey  Shyam  Sharma  was  further  alleged  to  have published  another   issue  Ex.   3  of   Kronch  containing defamatory statements  of fact  against the appellant. These statements were  also stated to be objectionable in the same manner as those contained in news item Ex. 1. As regards the election expresses,  it was  stated. the  respondent had not shown the expanses actually incurred by him in the matter of hiring of  vehicles, purchase  of petrol,  arrangement of  a procession and  employment and entertainment of his workers. The respondent,  it was  claimed had  incurred an expense to the extent  of at least Rs. 35,000 over and above the amount shown by him in the return of election expenses.      The petition  was resisted  by the  respondent  and  he

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denied  the  various  allegations  made  by  the  appellant. According to the respondent, Radhey Shyam Sharma was hostile to the  appellant and  had as  long ago  as October 15, 1970 bitterly criticised  the activities  of the  appellant in an issue of  Kronch. The respondent denied that he had anything to do  with the  publication by  Radhey Shyam  Sharma of the different issues of Kronch and pamphlet . It was also denied that the  issues of  Kronch or the pamphlet in question were distributed  in   the  meetings   of  the   respondent.  The allegation that  the issues  of Kronch  and the  pamphlet in question contained  statements of  fact which were false and which the respondent believed to be false or did not believe to be  true and  that those  statements were  calculated  to prejudice the  prospect  of  the  appellant’s  election  was likewise  denied.   According   to   the   respondent,   the allegations contained  in the  impugned issues of Kronch and the pamphlet  had earlier  been made m some other papers and on the floor of the Rajasthan Legislative Assembly. They had also been  made by  one Babulal  Sharma, Convenor  of  Yuvak Congress Mandal,  Karauli. As regards the election expenses, the respondent  stated that  he had  maintained a proper and correct statement  of  account  and  had  not  incurred  any expenditure over  and above the amount of Rs. 8,665.69 shown in his return. 419           in the election petition ?      "1.  Did the  respondent and  his  election  agent  Mr.           Jagdish Pal  publish  the  statement  of  fact  in           relation to  the personal  character or conduct of           the petitioner  as alleged  in paragraphs  14? 16,           18, 19 and 20 of the petition ?      2.   Was  Mr.   Radhey  Shyam  Sharma  engaged  by  the           respondent to  carry on  his propaganda and was he           in charge of the respondent’s publicity and did he           publish the  news item  in ’Kronch’  and read them           out and  the petition  ? distribute the news items           and the pamphlet as stated      3.   (a)  Were the  statements referred to in issue No.                1  false,  and  did  the  respondent  or  his                election agent  or Mr.  Radhey  Shyam  Sharma                believe them  to be false. Or did not believe                them to be true?           (b)   Were those  statements reasonably calculated                to   prejudice    the   prospects    of   the                petitioner’s election ?      4.   Have  the   respondent  and   his  election  agent           deliberately failed  to  maintain  a  regular  and           correct return of the expenses incurred by them in           connection with the election of the respondent ?      5.   Have  the   respondent  and   his  election  agent           incurred    or     authorised    expenditure    in           contravention of  section 77 of the Representation           of  the  People  Act,  1951,  as  alleged  in  the           election petition ?" issues (1)  and (2)  were decided against the appellant. The view of  the findings on issue Nos. 1 and 2, issue No. 3 was held not  to arise. All the same the High Court was into the matter and held that neither the respondent or his ’election agent nor  Radhey Shyam  Sharma had  reason to  believe  the impugned statements  published in Kronch and the pamphlet in question to  be false and not to be true. Issues (4) and (5) too were  decided against  the appellant.  In the result the election petition was dismissed      At the  hearing of the appeal Mr. D. P. Singh on behalf of the appellant has assailed the findings of the High Court

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on the  different issues.  As regards the election expenses, it has been conceded by Mr. Singh that even if they were not maintained in  the prescribed  manner, that  fact would  not constitute a corrupt practice. According  however  to the learned counsel, that fact taken with other evidence might  justify a conclusion that the respondent had suppressed  some  items  of  expenditure.  So  far  as  this question is  concerned, we  find that  the  High  Court  has considered the evidence brought on record 420 and has held on appraisement of that evidence that there was no cogent  material to show that the respondent had incurred any expenditure  over and  above what  had been shown in his return. After  having been  taken through  the  material  on record, we  find no  cogent ground  whatsoever to  interfere with the  appraisement of  the evidence  by the  High Court. Reference was  made to  the expenses  for  the  purchase  of petrol. According  to return  Ex. 6 filed by the respondent, he spent  Rs. 3,253.27  on petrol.  The correctness  of that above figure  is vouchsafed  by the  statement  of  accounts filed by  Karauli Auto Stores The petrol pump which supplied petrol for the respondent belonged to that concern. Although the said  concern was  a family  concern of  the respondent, nothing has  been brought  to  our  notice  as  to  why  the statement of  account filed by that concern be not accepted. During the pendency of the trial on application filed by the appellants the  High Court  directed that  the account books maintained by  the respondent  as well as the account books, cash book  and the  credit and cash vouchers of Karauli Auto Stores might  be shown  to the appellant’s counsel. In spite of that order the appellant or his counsel could not examine those account  books and documents. Nothing was consequently brought on record to question the correctness of the entries in the account books.      It has  also been  urged  that  the  appellant  engaged certain vehicles  is for  a number  of days but the expenses incurred on  that  account  were  not  correctly  shown.  As against that,  the case of the respondent is that only those vehicles were hired by him which were shown in the documents filed by  him. According  further to him, the number of days for which  those vehicles  were  hired  was  also  correctly shown. The  appellant produced  oral evidence of a couple of witnesses in  support of  the stand  taken by  him. The High Court declined  to accept  that evidence.  After hearing the learned counsel  for the  appellant, we  are not inclined to take a  contrary view. The evidence adduced by the appellant was not  only not  supported by any documents it ran counter to the  documents which  were produced by the respondent and some of  which had  been signed by the witnesses produced by the appellant  It is  well established  that in  an election appeal this  Court should  not interfere  with a  finding of fact recorded  by the High Court based upon the appraisement of evidence  unless such finding is vitiated by some glaring infirmity. No such infirmity has been brought to our notice.      Mr. Singh  has then  submitted that  the  daily  hiring charges of  a truck  was about Rs. 100 but the respondent in his return  showed the  daily hiring charge for the truck to be Rs.  35. The  case of  the respondent  in that respect is that the  was charged Rs. 35 as daily hiring charges because he prevented  the requisitioning of those trucks by making a representation  that  they  were  needed  for  his  election campaign. Evidence was also produced in support of the above stand of  the respondent.  The High  Court found  the  above explanation of  the  respondent  to  be  plausible.  Nothing cogent has  been brought  to our  notice as to why we should

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take a contrary view. The fact that there are suspicious 421 features  in   the  respondent’s  case  about  his  election expenses would  not justify interference with the finding of the High  Court because  suspicion cannot  take the place of proof.      Coming to the question of the impugned issues of Kronch and pamphlet Ex. 2, we find that there is no cogent evidence on the  record to  show that  Radhey Shyam  Sharma published those issues and the pamphlet at the instance of or with the consent of  the respondent  or his  election  agent.  It  is indeed evident  from the  issue of  Kronch dated October 15, 1970 that  Radhey Shyam  Sharma was hostile to the appellant and had  been criticising  him since  1970, about  14 months before the  election. There  is, therefore,  nothing to rule out the  possibility, as  stated  by  the  respondent,  that Radhey  Shyam  Sharma  published  the  impugned  issues  and pamphlet  at   his  own  and  without  the  consent  of  the respondent or his election agent.      The allegation  that the  impugned issues of Kronch and the pamphlet  were distributed  in the  election meetings of the respondent  remains unsubstantiated.  The appellant  got produced reports  Ex. 15 and 16 of the two election meetings of the  respondent held  on February  27, 1972  and March 2, 1972. According  to these  reports, Radhey  Shyam journalist addressed those meetings and asked those present to vote for the respondent.  There is  no mention  in these  reports  of Radhey Shyam  having said  anything against  the  appellant. There is  also no  reference  to  the  distribution  of  any pamphlets  or  issues  of  Kronch  in  those  meetings.  Our attention has  been invited  by the  learned counsel for the appellant to  the statement of Nurul Hasan constable (PW 4), according to  whom some  documents  were  distributed  in  a meeting held on March 2, 1972. The witness added that he did not know  as to  what were  the contents  of those documents because he saw the whole thing from a distance. The evidence of Nurul  Hasan, in  our opinion, is too slender a basis for recording a finding that the impugned pamphlet and issues of Kronch were distributed in the meeting of the respondent. It is in  the evidence of Sub-Inspector Bhopal Ram (PW 18) that if any newspaper is distributed in an election meeting and a copy of it becomes easily available to the constable present in that  meeting, he  sends it  along with  his report.  The witness also  produced some pamphlets which were distributed in an  election meeting against the respondent. If as is the case of  the appellant,  the impugned  issues of  Kronch and pamphlet in question were widely distributed in the election meetings of  the respondent,  it is  not clear as to why the policeman on  duty in  those meetings  could not secure even one copy of those issues or pamphlets. The fact that no such copy was  sent with any of the police reports shows that the allegation of  the appellant  in this  respect is  not well- founded. 422      In view  of our  finding that  it is  not  proved  that Radhey Shyam got published the impugned issues of Kronch and pamphlet at  the instance  of or  with the  consent  of  the respondent or  his Section  agent and in view of our further finding that  it is  not  proved  that  the  copies  of  the impugned issues  of Kronch  or pamphlet  were distributed in the election meetings of the respondent, we need not go into the question  as to whether the finding of the High Court on issue No.  4 is  correct or  not.  We  consequently  neither affirm nor  disaffirm the  finding of fact or law under this issue.

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    The  appeal   fails  and   is  dismissed   but  in  the circumstances without costs. V.M.K.                                     Appeal dismissed. 423