BABURAO BAGAJI KAREMORE & ORS. v. GOVIND & OTHERS

Citation: [1974] 2 S.C.R. 429; 1973 INSC 216

Court: Supreme Court of India

Bench: P. JAGANMOHAN REDDY , P.K. GOSWAMI

Judgment date: 1973-11-27

Case summary

1973 INSC 216. Supreme Court of India judgment dated 1973-11-27. BABURAO BAGAJI KAREMORE & ORS. v. GOVIND & OTHERS. Read the judgment and case details on...

Judgment text

SUPREME COURT REPORTS ( 1974 J 2 S. CJt. 42& A BABURAO BAGAJI KAREMORE & ORS. v. GOVIND & OTHERS November 27, 1973 (P. JAGANMOHAN REDDY AND P. K. GasWA! dl, JI. ) B Rtprmntatlon of th• Peopl• Act, 1951-S. 100 mul with sub·stcs. I, 2, 3, 3A, 4, 5 aiu1 6 of'· 123-Corrupt practlce-Scop• of. The first. ~pondent was declared elected to tho Maharashtra Losislative A-. bly getting tho bighost number of votes. His election was challenged by 4 electors on various grounds of corrupt practices under s. 100 read with sub-aectiona l, 2, 3, 3A, 4, 5, and 6 of s. 123 and for contravention of the. provisions of s. 127-A of the Representation of tho People Act, 1951. c It was alleged in the petition that the first respondent did not keep separate and correct account of all the expenditure incurred and authorised in connection with his election, nor were his accounts kept in accordance with s. 77 of the Act read with Rule 86 of the Conduct of Election Rules.

He did not obtain vouchers for every item of expenditure incurred etc. , as prescribed by s. 77 of the Rules framed thereunder. He suppressed many items of expenditure which were in excess of the authorised amount of Rs. 12,000/- • Secondly, it was alleged by the petitioners that in an election meeting held on February 18, 1972, the agent who was D an active supporter of the first respondent, made a false statement of fact in relation to the personal character and conduct of respondent no. 2, as well as petitioner No. 1. It was alleged that he made a statement in his speech in that meeting that ~ondent no. 2 secured the withdrawal of the petitioner no. 1 by giving him a bribe of Rs. 60,000. According to the petitioners, the first respondent a:ot the said statement published in· a weekly dated 23rd February 1972, and the statement was published with the consent of the ftnt respondent as his election aaent.

Further, it was allqed E that he printed election pamphlets and posters in which he appealed to the voters on the grounds of caste and community. The petitioners gave instances to show how the propaganda was carried on by issuing pamphlets containing false statement of facts and which the first respondent or its maker either believed to be false or did not believe to be true. The first respondent denied that he made any statement in relation to the personal character or conduct of the second respondent, nor did his election agent or workers with his consent, make any such statements; nor could it be said that any of the F statements were reasonably calculated to prejudice the prospect of his oponent. It was also averred that the expenditure shown by him in the return of his expenses was correct and the return was in accordance with law and the rules framed thereunder ; that there was no contravention of s.

77 Of the Act read with rule 86 of the Rules and denied that he incurred expenditure much more than Rs. 12,000/· as alleged. Although the third respondent filed his written statement, practically admitting G all the allegations in the petition against the 1st respondent, subsequently he filed an application fOr permission to withdraw the power of his counsel one Mr. Desh· mukh through whom he filed the written statement. Dcshmukh was permitted to withdraw his written statement. The~fter, the third respondent did not take any part in the proceedings. Respondent No. 4 neither appeared, nor filed his written statement. Later, the trial proceeded ex~parte against both. respondent Nos. 3 and 4. Respondent No. 2 though reproaonted, ;.. did not file his written statement. On these pleadings, as many as· 31 issues were framed by tho High. Court of which issue no, t related to a preliminary objection that the petition H was liable to be rcjer,ted for non.

joinder of all the persons who had filed their nomination papers for the election. Tbe·High Cowt decided the 1st issue against the first respondent, but all other issues were held not proved by the petitioners, and therefore, the petition was dismissed with costs. Before this Court, the appel~ Ian ts restricted their case to the three heads ·of corrupt practices viz. (I) under s.. 2-M602SuP. CI/74 430 SUPREME COUil T llEPOllTS ( 1974 J 2 S,C,ll. 123(4) of the Act, for publicationof false statement of facts in relation! to personal A character or conduct of the candidate or in relation to the candidature or its with· drawal; (2) under s. 123(6) fo:r incurring or authorising expenditure in contravention of s. 77 of the Act and (3) under s. 123(3) for making an appeal on the around of caste or community by printing, publishing and distributing pamphlets- Ex. 42 and 43. Dismissing the appeal, HELD : (! ) Takin~ the last head under issues 19. and 21 which relate to two pam· phlets, Ex.

42 and 43 m which a communal appeal had been made to the electors to vote for the ! st respondent there i1 no doubt that Ex. 42 and 43 made a communal appeal to Kunbi and Teli voters to vote for respondent no. !. If theoe pamphlets are proved to have been printed, published and distributed by the lit respondent then he will be gull~'t of cqrrupt practice within the meanina l>f 1ub-1. (3) of 1. 12J or the Act. Tb• Court found that they were neither printed, published or distributed by or on alf or the first nopondent nor by hi• election aaent or by his workers with bia consent or the consent or bia election aaent. On a perusal of the c evidence u a whole and havina colllidered the contentions adtanced by both the partlea, it cannot be said that tho findin1 of the learned trial Judp that Exts. 42 and 43 were not printed, or published or distributed before the date or pollin1, is vitiated and on evidence, thi1 finding is clearly sustainable.

(ii) M regards the second head which relates to corrupt practice under Sub-s. (6) of Sec. 123 of the Act for incurring or authorising expenditure in contravention of S. 77, the learned trial judge was of the view that it had not been shown how there was nono. eompliance of s. 77 read with s. 86 and also no arguments were advanced D on this point. Every item of expenditure that has been shown in thC return has been supported by the original voucher which was not challenged. Nor anytQ. ing had been brought to the notice of the Court to show that there had been any averment in the pleadings that the accounts filed were not a true copy of the accounts maintained. Therefore, the requirements of ss. 77 & 78 had been complied with. (iii) As regards addition of Rs. 2992·95 to the amount of Rs. 70499· ll found by the High Court, it can be pointed out that there is no justification in adding this amount to the total because Exts.

86 ad 87 were given on behalf of Jan Singh E and Congres&-0 parties, whose names alsp had been written on those . chits by the persons signina: them at the petrol pump. Further, in respect of the'•expenditure incurred in illuminatin~ the truck and hiring the tractor, the evidence :So adduced by the witnesses were nght1y disbelieved by the trial court. The evidence in connection with hirin' of cycles was also not reliable. Similarly the trial Court had rightly rejected the evidence in connection with Kirti Hotel expenses of Rs. 1,9S9/-. As regards the amounts paid to Laxmi Lithe works for printing etc. the High Court was right when it said that Ex. 62 was a consolidated receipt of Rs. 765/- and this amount had been included in the return of election expenses. Similarly, the High F Court had rightly rejected the allegation of certain petrol expenses incurred by the 1st respondent. A sum of Rs.

1,938-50 however, is not accounted for and in absence of satisfactory explanation, this amount has to be taken as election expenses and must, therefore, be added. (iv) Even if the contention of the petitioner is accepted that Rs. 1,939/- incurred by Bhan dalal for which no account was given, Rs. 100/- paid towards the salary of Harl, the driver, Rs. 695/- in respect of Sakhare Rs. 192-40 or say Rs. 192/- G in respect of petrol, Rs. 600/- regarding hire charges of a taxi, hired by the father-in- Jaw of the 1st respondent and Rs. 129/· incurred for Shende, respondent no. l, the several items will amount to Rs. 3,655/-. If these amounts are added to the election expenses already shown, it would come to Rs. 11,154. Even on this seeking, the election expenses are well within the limit of Rs. 12. 000/-· and consequently the appellant's charge against the Jst respondent for committing corrupt practice under Sub-s. (6) of s. 123 of the Act is not established.

(v) As regards the statement made ·by a protag:onist of a separate Vidarbha with H the consent of the 1st respondent that the s"econd respondent paid a bribe of ~s. 60,000/- to the first respondent to withdraw from the contest and the allegation that the said false statement appeared in a paper with the consent of the 1st res .. ,pendent, the fst respondent denied that the above statement was ever made or that BABURAo v. GOVIND (laganmohpn Reddy, I. ) 431 A it was made in his presence or with his consent 1 nor did he have any knowledge that it was published in a paper with this consent or that the paper was acting as his agent. Further, the trial court held that the witnesses who gave evidence in support of the ,allegations were not present at the meeting. it was not proved that the first respon.. dent ever consented at the second respondent to make the alleged false statement. The trial court, therefore, rightly rejected the allegations. (vi) In examining.

the question whether the allegations about the commission of corrupt practices by a returned candidate, the Court has to keep in view that the B allegations about the commission of corrupt practices are of a 9uasi-criminal nature, the proof whereof has a double consequence of not only sett1na: aside the election of the returned candidate, but also imposing subsequent disqualiftcation debarring him from becomlnt a candidate at any election for a period of 6 years. Inasmuch as the cbara:c is a 1eriou1 one and ia of a quasi-criminal nature, the cnus of provint the eaaential lntred! ents pmcrlbod by 1ub-1. (4) of s. 123 is on tho person who au,.. them. (vil) In the p-nt case, from tho evidence, it I• not proved that the offendint atatemont wa1 made by Dhote an aient of respondent no 1, in the meetin1 or that it was made with the coment of respondent no. I, The appellants have not established the corrupt practice under this head also by any credible evidence. :ii _,.

- (viii) As regards the costs "incurred" in section 96 and 119 of. the Act, it means what is actually spent',. Accordingly, in the present case, it was incumbent in the High Court to award costs to the first respondent which costs he v. ras entitled to if be could show that he had incurred them. Admittedly, there was no proof of payment of any fee to counsel by the first respondent. As such, he will not be entitled to the amount of Rs. 400{· per diem awarded by the High Court, The first respondent cannot be allowed to file any fee certificate before this Court since he had not done earlier. Laxminarayan v. Returtiing Officer, C. A. No. 1014of1972 decided on September 28, 1973, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 901 of 1973. Appeal under Section 116A of the Representation of the People Act 1957 from the judgment and order dated the 12th February, 1973 of the High Court at Bombay, Nagpur Bench, Nagpur, in Election Petition No. 2 of 1972. K. H. Deshpande, A.

She/at, N. M. Ghatate and S. Balakrislman, F for the appellants. S. N. Kherdekar, V. S. Sirpurkar, K. V. Sirpurkar, C. K. Ratnaparkhi and A. G. Ratnaparkhi, for respondent no. I. Guiab Rao Patel and Shiv Pujan Singh, for respondent Nos. 2--4. The Judgment of the Court was. delivered by JAGANMOHAN REDDY, J. -The first respondent Govind Ramji Shende was declared elected a for the purchase of petrol and diesel oil for cars, jeeps, taxies: trucks and tractors from various petrol pumps, such as Gurjar Brothers Petrol Pumps, Bhandara. Petrol Pump of Sale and Purchase Society at Tumsar and from Kulwal and Sons of Tumsarfor the purposes of the several vehicles used by him for an election propaganda, and (e) Was this expenditure incurred by him or his workers with his consent or with the consent of his election agent ? (f) Did the respondent no. I purchase pe1rol and diesel oil through M. T. Dalal, Kharabe, _Ninave and Saxena ? .

(g) Were the charges for the purchase of this petrol and diesel actually incurred by the respondent no. I through his workers? (11) Did the respondent no. I take camouflage receipts in the name of Jana Sangh and Congress (0) parties to· conceal the true nature of the transactions, though the expenditure was incurr (la9anmohan Reddy, 1. ) 443 interfered with merely because an appellate court which had not the , advantage of seeing and hearing the witnesses can take a different view. Before a finding of fact by a Trial Court can be set aside it must be established that the Trial Judge's findings were clearly un-sound, perverse or have been based on grounds which are unsatis-factory by reason of material inconsistencies or inaccuracies.

This is not to say that a Trial Judge can be treated as infallible in determining which side is indulging in falsehoods or exaggerations and consequently it does not preclude an appellate court from examining and appreciating the evidence in order to ascertain whether the finding arrived at by the Trial Judge is warranted. If that is not warranted, it can, on its view of the evidence, arrive at a ·conclusion which is different from that arrived at by the Trial Court. This aspect was discussed in detail in Laxlnarayan v. Returning Officer(! ),. to which we were parties. We have already set out in brief what the appellant's allegations and the respondent's answer to. those allegations were, What has now to be ascertained is, firstly, whether the pamphlets Exts. 42 & 43 have been proved to have been printed by Bharat Seva Chhapkhana, Bhan· dara and in respect of Est. 42 published by Tukaram Rakhalu Shende and in respect of Ext. 43 by S. G.

Balpande, Ekalari; secondly, if they are proved to have been so printed and published, whether the first respondent or his election agent or Balpande or Tukaram Rakhalu S. hende got them printed and published with the consent of the first respondent or his. election agent and thirdly that these pamphlets were printed,. published and distributed during the election before the date of polling. In proof of these allegations the appellants sought to establish (1) by direct evidence of witnesses who were present at a meeting in Saxena's house in which respondent No. I, Bhole P. W. 40 and others were present, where it was decided to appeal to the Teli and Kunbi voters; (2) oy ·evidence of the printer who printed them; (3) by the pamphlets being taken delivery of ort, behalf of the first respondent; and (4} after taking delivery from the printer of copies )1 of pamphlets, giving them in the election office of the first respondent. On. the first circumstance, the evidence of P. W. 27 and P. W.

40 was relied upon by the appellants. P. W. 40 is an Advocate who became the election agent of the first respondent on February 21, 1972. Both P. W. 27 and P. W. 40 speak about a meeting held in the house of P. W. 27 on February 11, 1972 in which the first respondent Shende, Bhau Dalal (M. T. Dalal) R. W. I, Saxena (P. W. 27), Bhaskar Ninawe (! R. W. 7) and others were present where it was decided to appeal to the Teli and Kunbi voters who formed a majority of the electorate. The other witnesses who were said to have been present, namely, I R. W. J Da! ', ·1 R. W. 7 Bhaskar Ninawe and the first respondent, I R. W. 15 Shende, denied that any talk of that nature. took place or that any such decision was arrived at. The learned Judge did not accept the evidence of these witnesses for the reason that the evidence of P. W. 27 Saxena is not of any value for substantiating the printing and publi· cation of Exts. 42 and 43 because he does not mention. the name of (I} C. A. No.

1014of1972 decided on September, 1973. P. W. 40 at the meeting held on February 11, 1972, even though P. W. 40 says he was present not only at that meeting but also at a meeting held on February 12, 1972 in the house of 1 R. W. I Dalal at which the decision to print Exts. 42 and 43 was taken. Even I R. W. 15 Shende, 1 R. W. I Dalal, Bhaskar Hardikar (I R. W. 5) and Bhasker Ninawe (1 R. W. 7)did not mention the name ofBhole P. W. 40as being present at the meeting held on February 11, 1972 in the house of P. W. 27 nor were they asked about the meeting on February 12, 1972 held in the house of Dalal. They also deny having placec any orders for printing the pamphlets or of publishing or distributing the appeal nor were they signatories to the pamphlets. The presence of P. W. 40, therefore, was held to be improbable. The evidence of P. W. 40 was further held to be improbable because at that stage he was riot interested in the election.

The learned Advocate for the appellant contests this finding on the ground that the evidence of Saxena about the meeting on February 11, 1972 makes the printing of Exts. 42 and 43 probable; that the learned Judge did not discuss the evidence of respondent's witnesses on merits and probabilities; that Bhole eyentually became election agent as such it is quite natural to presume that he must have been associated with the election campaign right from the start; and that in any case no suggestion was made to Bhole that he was not interested in the election at the stage when the matter of communal appeal was decided. On the other hand, it is submitted that a definite suggestion was made to I R. W. I Dalal and there was no point in eross-examinil! i llim when it was denied by Dalal that any such meetin1 had taken place. We will now examine the evidence to see whether the learned Judge was justified in rejecting the evidence of the appellant that at the meet· ing held in P . W.

27's house it was decided to make a communal appeal, that on the next day the manuscripts of Exts. 42 and 43 were discussed c'and it was decitled to have the same printed and published, that they were got printed at the Printing Press of Jagdishkumar Gupta P. W. 35 and that delivery was taken of these pamphlets and thereafter distributed. It is true that though Saxena says that in the evening of February 11, 1972 a meeting was held at his place which was attended by Dada Shende (I R. W. 15), Bhau Dalal (I R. W. 1), Parashram Waghaye, Bhaskerrao Hardikar, Bhasker Ninawe, Ram Hadau, Sarwan Hedau and some others, he did not specifically mention P. W. 40. He, how· ever, says that at that meeting it was considered that as there might be 32,000 Teli and 24,000 Kunbi voters in Bhatidara constituency and 1 that since the first respondent was a Kunbi, the support of Kunbi voters should be sought.

He also says that since Karemore who was first given a ticket by the Congress was a Teli lll)d since that ticket bad been cancelled in favour of Tirpude, the support of Tell commu· nity should also be sought in favour of the first respondent as Teli candidate was deprived of the ticket. This witness also admits that Bhau Dalal was incharge of tlie election campaign. The learned BABURAO v. GOV! ND (Jaganmohan Reddy, J. ) 445 Advocate for the appellant contends that though P. W. 40's name was not mentioned, the probability that he was present, cannot be ruled out inasmuch as P. W. 27 does not categorically exclude his presence when he says that others were also present there. The criticism that it was not suggested in cross-examination whether P. W. 40 was not present is, in our view, not tenable, because at that stage it could not be ascertained what P. W. 40 would say. Even so, whether at that meeting P. W.

40 was present and whether such a discussion took place to appeal to Teli and Kunbi voters, can only be ascertained from an overall consideration of the evidence and the probabilities in the case. P. W. 40 who asserts that he was present at the meeting held on February 11, 1972 in the house of P. W. 27 Saxena says that on that day after the name of the candidate for election was finalised, the respondent came to the Bar-room to see Advocates Bhau Dalal, Waghayeand Saxena as to what the future programme in the election should be. It was then arranged that they should meet at the house of Saxena in the evening at 7 or 7-30 p. m. The meeting was accordingly held in the house of Saxena where Saxena P. W. 27, Dada . Shende (I R. W. 15), Bhau Dalal (I R. W. 1), Bhaskar Ninawe (I R. W. 7), Ram Hedau, Shrawan Hedau, Bhaskar Hardikar (1 R. W. 5), Parashram Waghaye and 4 or 5 other persons were present.

At that meeting there were deliberations as to how best to conduct the election campaign and secure a majority of votes; In that meeting it was decided to make efforts to get votes of Teli voters for Dada Shende. The next day in the morning (I. e. February 12, 1972) a meeting was arranged with him at the house ofBhau Dalal (l R. W. l). He went there. At that meeting Bhau Dalal, Shivshanker Ninawe (1 R. W. 10) and 2 or 3 others were present. Bhau Dalal said that some' pamphlets are to be printed and that they should go to the Press. There were two manu· scripts of the pamphlets which were to be printed. He says the manu· scripts appeared to him to contain propaganda on communal basis and accordingly he expressed his doubts. Then they were satisfied F that they could not be said to contain any propaganda on communal basis. The two manuscripts on the basis of which the pamphlets were to be printed had the caption "Teli Bandhawana Awahan and Kunbi Bandfrawana· Awahan".

He also admits that while he and Shivshankar Ninawe were going to invite Jambtwantrao Dhote, on their way to Pind Kepar, they went to Bharat Sewa Press and collected the two types of pamphlets referred to above. They then returned the pamphlets to the election office and deposited them there. He also says that he took out a few pamphlets from those bundles and they went to Pindkepar; that he read those pamphlets after they were print· ed and the printed pamphlets were the correct copies of the manu· 1eripts which he had read earlier. Exhibits 42 and 43 were shown to the witness. He said that those pamphlets were similar to those taken by them from Bharat Seva Press. The manuscripts 42A and 43A H were also shown to him and he said that they were the same which he had read earlier at the house of Bbau Dalal.

He admits that he was appointed election agent of the first respondent on February 21, 1972 3-M602Sup Cl/74 and the declaration forms to that effect were submitted to the Return· ing Officer on the same day. In cross-examination he admitted that he took interest in this election in order to get himself acquainted with political life and to get an opening in politics. What is more, he went to the length of admitting that he had not so far read the election law though he took part in the mid-term Lok Sabha election of 1971 and the 1972 Assembly elections. When the manuscripts Exts. 42A and 43A of which Exts. 42 and 43 were the printed pamphlets were B shown to him he said he could not recognise the handwriting though he admitted he knew Bhau Dalal's handwriting. He did not say they were written by him nor were they according to him in the handwriting of Bhole, Saxena, Bhaskar Ninawe, Shivshankar Ninawe, Bhaskar Hardikar.

He says he does not know the persons whose nanies appear as signatories to the pamphlets Exts. 42 and 43, nor does he know the c publishers of the two pamphlets. He only came to know the name of Gupta whom he had known by face when the pamphlets Exts. 42 and 43 were given for printing in his Press. According to him he had gone to Bharat Seva Press with Bhau Dalal and two or three others 2 or 3 days after ! )le date of withdrawal. Two or three days after that date the printed pamphlets were delivered to them. 4,000 copies of each were taken and at the time of taking delivery about Rs. 50/- D or so were given by Shivshankar Ninawe (I R. W. 10) to Gupta and a receipt was obtained from him by Ninawe. He also says that at the time of taking delivery, Ninawe had not with him the bill or the order copy from the Press nor does he know if Gupta had written any order for the printing work. From this evidence, it emerges that on February 12, 1972 when the E manuscripts of Exts.

42 and 43 were seen by him, the first respondent has not been stated to be present in the house ofBhau Dalal. While he specifically mentions the name of the first respondent as being present at the meeting in P. W. 27's house on the evening before, namely on February 11, 1972, his omission to mention Shende as being present on February 12, 1972 is significant. There is no warrant for the submission that no suggestion was made to the witness in cross-examina- )! tion that Shende was present because when a witness has not mentioned the name of a person being present and it is the specific case of the first respondent that he was not present at that meeting, he could not be expected to suggest that he was present or even that he was not present.

Secondly, it is rather strange that the witness being an Advocate and having admitted that he had taken part in the mid-term Lok Sabha Election of 1971 and Assembly Elections in 1972, he did not read the G election law then or even by the time when he was giving evidence. Though ordinarily unless one is concerned with a particular matter, he may not be expected to be conversant with that branch of the law with which he is not dealing, nonetheless an Advocate who is claiming to be an election agent and has earlier admitted t. o have taken part in the election work would be expected to be conversant with ·the election law. This admission shows that either he was very raw know- H ing nothing about the election law, and hence, as stated by the first respondent, was not enstrusted with any important work, or that he had experience of election work and knowing that a communal appeal BABURAO v. GOVJND (Jaganmohan Reddy, J.

) 447 to voters would be a corrupt practice under the Act has changed his loyalty to support the petitioners and Respondent No. 2 against the · first respondent. It has been stressed with great emphasis that the first respondent admitted that Bhole P. W. 40 was his election agent and hence any admission made by hill' in this regard is binding on the first respondent. Though the first respondent admits appointing Bhole as his election agent, his case is that he had not known him personally but he was introduced to him by Saxena P. W. 27 an Advocate, who was the Vice· President of the Congress-0. It. was at the instance of Saxena that Bhole was appointed as his election agent but was not entrusted to do any work in the election, nor was Bhole entrusted with any funds or with any work, nor were any of the workers of the first respondent approaching him for instructions, guidance and orders.

It was alleg· ed that Bhole volunteered to work as an election agent only for the purposes of getting some experience of election work, but was only figuring as a dummy and practically took no part in the election. At any rate, he was not appointed an election agent at the time when the pamphlets were said to have been printed but subsequently. It was then alleged that after the election, Saxena Advocate and Bhole who was his junior had been won over by Tirpude respondent No. 2. for whose benefit the petitioners had filed the election petition. There is no doubt that Bhole changed his loyalties a19ng with Saxena as pleaded by the first respondent. He goes all out to depose to incidents alleged to have taken place which will injure the first respondent, parti· cularly in respect of matters which others present did not speak of. For instance he is the only witness who says th.

at Jambuwantarao Dhote at the meeting held on February 18, 1972, indulged in com· munal propaganda when no one else who is said to have been present at the meetins; said so; He denies that he is a junior of Saxena and yet admits that he worked in 10 or IS cases with Saxena as his junior. Though he asserted that he saw the manuscripts of the pamphlets, is unable to give the correct heading of the appeal in Exts. 42 and 43. The actual heading on Exts. 42 is "KUNBI MATDAR BANDHU BHAGININA AWHAN" and on Ext. 43 '"TELi MATDAR BAN· DHU BHAGININA AWHAN". If his evidence is further scrutinised in the light of the evidence of other witness, it is equally uninspiring: Bhau Dalal' 1 R. W. l' while he admits that there was a meeting on February 11' 1972 at the the house of P. W. 27 for deciding as te> what action should he taken in respect of the election propaganda, he does not speak of any meeting in his own house on February 12, 1972 at which P. W. 40 was.

present, nor is there any mention by him of the manuscripts Exts. 42A and 43A of which Exts. 42 and 43 are printed pamphlets, being shown or discussed. He also. denies having either seen the proprietor of the Bharat Seva Chhapkhana or of his having gone to him to place any order for printing any pamphlets at that Printing Press including the offending pamphlets. Bhau Dalal, however, says that after the election petition was filed, he was told by Dada Shende (1 R. W. l) that two pamphlets regarding appeal to Teli and Kuubi communities have been filed along with the election peti- A tion and in consultation with others a letter under the signature of Dada Shende was written to the proprietor of Bharat Seva Chhapakhana . about the printing of the pamphlets in his Press. After a few days, Shende told him that the proprietor of the Bharat Seva Press had given a letter explaining his position.

Exhibit 126 is the letter which Shende wrote to the proprietor of the Chhapakhana in consul- B tation with him and these letters were acknowledged on August II, 1972 by the proprietcr (Exts. 127 and 128). In October 1972 Shende and he (Dalal) saw the two pamphlets in the file of the District Election Officer, Bhandara. In cross-examination, it was suggested to the witness that there was a meeting in his house on February 21, 1972 at which P. W. 40 was present. He however, denied that there was any talk at the house of Sexena on Febru-c ary 11, 1972 about the details of election work, nor was any programme relating to election discussed at the house of Saxena on that evening, nor were ;Bhasker Hardikar, Bhasker Niwas, Sheoshankar Ninawe, Ram Hedau, Shrawan Headau and Advocate BhOle asked to attend the meeting at the house of Saxena. There was also no thought given between February II and February 18, 1972, for the appointment of an election agent.

· It was on February 18, 1972, that D it was decided to appoint an election agent. In the lengthy cross-examination spreading over 33 cyclostyled pages, there is not a suggestion that a meeting was held in Bhau Dalal's house at which Bhole was present or at which the manuscripts of the pamphlets Exts. 42A and 43A were considered and discussed. It is, in our view, idle to say that because a meeting at P. W. 27's house (Saxena's h9use) on the evening of February 11, 1972 \'{as denied, the meeting on February E 12, 1972 also would be denied, and, therefore, no questions were asked. If no questions were asked in respect of the meeting of February 12, 1972, at which the manuscripts of the two pamphlets were alleged to have been discussed, then the inference is that the appellant did not wish to challenge that any such meeting took place, particularly when Bhan Dalal ascertained that the first time he came to know about these pamphlets was after the election petition was filed.

F Surely, if the positive case of the appellant was as spoken to by P. W. 40 that a meeting had taken place at Bhau Dalal's house on February 12, 1972 at which the manuscripts of the offending pamphlets were seen and discussed, it should have been suggested that that statement was false and that the witness had known about those pamphlets much earlier when the manuscripts were discussed in his house. Even according to P. W. 40, Shende was not present nor did he authorise G at that meeting the printing or publication and distribution of any such pamphlets. Another significant statement of P. W. 40 is that though he expressed doubts at the meeting that the two manuscripts of the pamphlets which were to be printed might amount to a propaganda on communal basis, he nevertheless says that when they discussed the contents of the pamphlets they were satisfied that those pamphlets could not be said to contain propaganda on communal H basis.

If this is so, and for an election agent, particularly a lawyer who, said earlier, ·had admitted having taken part in election work previously, ~nd would be expected to know what would amount BABURAO v. GOVIND (Jaganmohan Reddy,!. ) to a communal appeal, then the inference would be that the manuscripts that were discussed and got printed were not the offending pamphlets Exts. 42 and 43. It is however, contended that Bhau Dalal Ninawe (I R. W. 7) and the first respondent Shende admit that the~ met in Saxena's house and discussed election strategy in view of Tir· pude filing his nomination. Dalal denies that he tried to find out the number of voters in Bhandara constituency caste-wise, while Ninawe merely admits that there was a general discussion about the election. • Shende also does not admit that there were any discussions about strategy.

Whether strategy for the election was discussed at that meeting or not, and there must have been some discussion of how the election campaign must be conducted, it will be too far fetched to infer from that admission that they discussed about making a com· munal appeal to the voters. Jn our view, the evidence of this witness was rightly disbelieved by the Court. Nor is it established from a reading of that evidence that a meeting as spoken to by P. W. 40 took place on F~bruary 12, 1972, or that the manuscripts of the impugned pamphlets, Exts. 42 and 43, were either discussed or it was deci noticed that P. W. 35 was a polling agent ofTirpude respondent No. 2, who was a Congress candidate. The several reasons given by the learned Judge were assailed by the appellants' Advocate and it was pointed out that Bhau Dalal knew the printer well; that his house was across the road; that Bharat Seva Chhapakhana was an obscure Press and that the owner Gupta P. W. 35 H could be persuaded to print .

them without much ado; that P. W. 35 does not have a separate order book at least for the last 2 or 3 years but only a bill book; that the comment that he has not produced his '\ \ account books assumes that he has account books, but which fact has not been suggested to him. It is also contended that the reason why the order was not taken in Shende's name was because the witness was asked to take the order in a different name. In support of other matters upon which reliance was placed, namely, that he did not maintain accounts; that no accounts were produced; that no acknowledgment of delivery of printed material was taken; that Exts. 42 and 43 ·did not bear the signature of the publisher, it is submitted that no questions were asked. So far as non-filing of the declaration is concerned, the learned Advocate says that other printing presses like Bhandara and Sharda Printing presses did not file declarations for all the pamphlets printed, as is clear from the evidence of P. W.

28 Sharad Hardikar and P. W. 16 Jagdish Kumar. While it is not denied that P. W. 35 was a polling agent of respondent No. 2, it is submitted that he became the polling agent at a very late stage which fact at the most will necessitate close scrutiny of the evidence, but this by itself does not warrant his evidence being rejected. It appears to us that when an election of a successful candidate is challenged, particularly on ground of corrupt practice, it is not un-known that attempts are made to manufacture or bring into being subsequent to the declaration of the result, documents or other material, which could be used for unseating a successful candidate. At any rate when any impugned document is hotly contested on that ground and it is the case of the respondent that it was brought into existence subsequently, the onus on the petitioner who challenges the election on that ground is all the more heavy.

It can be safely assumed that candidates who take part in elections are expected to know that any communal appeal to the voters will affect the result of his election, or expose him or any election agent or any other person on his behalf who indulges in such communal appeals to a charge of corrupt practice. The fact that P. W. 35 was the election agent of the second respondent would have deterred either the first respondent or any one acting on his behalf from entrusting such an agent with the work of printing pamphlets which ex facie make communal appeal to the voters to vote for him; unless it is assumed that they were rockless and oblivious to the consequences. In any case, what must be ascertained is whether in fact they were entrusted with the work at the time when-it is alleged that they were so entrusted. In order to substantiate the averment that the evidence of P. W. 35 is trustworthy, it is contended that he had filed Exts.

42 and 43 with the election office even before the date of polling and that the Collector and District Magistrate as also his Deputy Ramteke P. W. \Shad seen those pamphlets two or three days before the date of the JlOlling. The evidence of these witnesses, it is contended, corroborates the evidence of P. W. 35 that he printed those pamphlets before the date of the polling and had filed copies thereof at the election office. A]lart from the fact that these pamphlets were printed by P. W. 35, it has also to be established that they were printed at the instance of the first respondent or his agent or some other person with his consent, and were published and distributed before March 5, 1972, the date of poll. DABURAO v. GOYIND (Jaganmohan Reddy, J. ) 451 It m~y be noticed that under sub-s. (2) of s.

127, a person 1s prohibited from printing or causing to print any election pamphlet or poster, (a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is penonally known, is delivered by him to the printerin duplicate; and (b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document where it is printed in the capital of the state to the Chief Electoral Officer, or to the District Magistrate of the District in which it is printed. Under sub-s. (4) any person who contravenes any of the provisions of sub-s. (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

Even assuming that a candidate who gets the pamphlets printed contrary to the above provision, the printer at any rate being uncon-cerned with the result of the election, will not expose himself to criminal prosecution or punishment or imprisonment by contravening the provisions. It is not denied that any such declaration as required under sub-s. (2) of s. 127 was obtained or filed by P. W. 35 in the election office. P. W. 35 says that he has a printing press in his house and he has no servant and does the composing, printing etc. himself. He knows Bhau Dalal well since childhood though Bhau Dalal says he knows him by face but not by name. According to him on February 12, 1972 Bhau Dalal, Sheoshankar Ninawe, Bhole and two or four other persons whom he did not know, had come to his house at about 10 A. M. when Bhau Dalal asked him to print the pamphlets as per the two manuscripts brought by him. He quoted Rs. 13/- per thousand for 4,000 pamphlets. Then they went away.

In the afternoon at about 3 P. M. Bhau Dalal, Sheoshankar Ninawe and Dada Shende again came to his Press. Shende gave him his order to print 4,000 pamphlets each according to the manuscripts and paid him Rs. 50/- as advance. He, however, asked him to take down the order in the name of Sheoshankar Ninawe. He asked that pamphlets and the bill for the remaining amount should be given to Sheoshankar Ninawe who will pay the balance. According to him, the order was taken on the printed order book of his Press and the original order form was given to Ninawe but that part of the order which gives details is in the order book. He produced the said book and counterfoil which was in his handwriting. It is Ext. 125 and the counterfoil is Ext. 125A. He produced the two manuscripts from which he printed the exhibits, Exts. 42A and 43A. He admits that he does not maintain any accounts and that his Press is registered under the Press Act in his name.

He took no declaration from Sheoshankar Ninawe, Dada Shende, Bhau Dalal or any other person to print this material in his Press. About 8 or 15 days after he delivered the pamphlets to Sheoshankar Ninawe, he learned from one M. A. Khan, Proprietor, Taj Press, that copies of the pamphlet are to be given at the office of the Election Officer. He gave one copy each of the pamphlets to some person in the election office near the Treasury, but he did not get any acknowledgment for having given. the two pamphlets in that office. He also admits that he had printed some pamphlets in connection with the election of 452 SUPREl\1E COURT REPORTS [1974] 2 s. c. a. 1971 mid-term Lok Sabha. In cross-examination he admits that he was a polling agent for Tirpude in Tilak Ward at Bhandara. He made an attempt to identify Exts. 42A and 43A to be in the handwriting of Tukaram Hakudu Shende, but immediately resiled from that statement and said that he did not know in whose handwriting the manuscripts Exts.

42A and 43A were, nor does he know who had signed the manuscripts nor did he ask Bhau Dalal to put his signature on the manuscripts as it was a pamphlet containing an appeal to the Teli and Kunbi community, nor did he take any letter from Bhau Dalal autho· rising him to print the pamphlets in accordance with the manuscript. He does not know if Tukaram Shende was amongst the persons who came to him on that day either in the morning or in the afternoon. He does not know any of the three persons under whose name the pamphlet Ext. 43 is printed and whose riame appears on Ext. 43. He is also not aware that a declaration from the publisher is to be taken while printing. Even at the time of printing the pamphlets in connection with the mid-term Lok Sabha election he was not aware that a declaration from the publisher was to be taken or any such declaration was also taken. He did not also give a copy of the pamphlet printed in his Press in the election office.

He further states that two or three days after he had a talk with M. A. Khan, Proprietor of Taj Printing Press, he submitted a copy of each of the two pamphlets in the election office. Though he admits he received a letter from Dada Shende demanding from him copies of the pamphlets which were distributed as having been printed in his Press, he denies that he gave any reply to this letter and says that he did not think it necessary to give a reply to it. When his two letters dated August IS, 1972 and October 27, 1972 were shown he says that the letter-heads are not his letter-heads, nor are they printed in his Press, nor are the two letters in his handwriting, nor do they bear his signature. He, however, admits that the copy of the letter from Dada Shende (Ext. 126) which he acknowledged on August 11, 1972 bears his signature and endorsement at the back.

He denies that any one on behalfof Dada Shende came to him to ask for the copies of the pamphlets or for a reply nor does he admit that he handed over the two letters Exts. 127 and 128 to Dada Shende personally saying that he had written the letters in the presence of Bhau Dalal. A perusal of the letters Exts. 126, 127 and 128 which were put to him would show that Shende the first respondent had written to him to say that translations of the two handbills )Vhich were described in those letters were filed along with the election petition and since they were said to have been printed at the Bharat Seva Chhapakhana, Bhandara, he requested P. W. 35 to send him two copies of each of the two handbills. In that letter Shende also stated that he never saw those two handbills before, vide Ext. 126. To this, the replies purporting to have been given by P. W. 35 are Exts. 127 and 128 dated August 15, 1972 and October 27, 1972 respectively. In the first mentioned letter P. W.

35 is alleged to have stated that the pamphlets were not printed i11 his Press, that he did not know either the publishers referred to by Shende or the persons who had signed those pamphlets. A further statement was made in that letter that there was no body else working in his Press except himself, and that he himself singly did the entire BABURAO v. GOVIND (Jaganmohan Reddy, J. ) 453 work of the Press. This latter statement, it will be observed, is con-sistent with and is corroborated by what P. W. 35 has said in bis evidence. In the letter dated October 27, 1972, which was sent after inspection was taken of the pamphlets in the election office, P. W. 35 made a statement denying that he had printed in his Press any type of pamphlets for any of the candidates in Shende's legislative assembly elections, and that he, therefore, did not produce printed copies of the pamphlets before the District Election Officer or in his office.

As we have seen, the writing of both these letters has been denied by the witness, who in fact, admitted that he received Shende's letter Ext. 126, when it is admitted that he received the letter Ext. 126 from Shende, if the witness's case is that he printed the pamphlets and filed copies of the same before the District Election Officer or in his office, surely one would have expected him frankly to say so at the earliest opportunity when it was afforded to him, that he did print them and filed them in the election office. Nor, in our view, is it likely for Shende having written Ext. 126 to P. W. 35 to have kept silent and not pursue the matter with P. W. 35. Nor is it likely that when these pamphlets were an important piece of evidence against Shende he would have remained silent and would not pursue the matter with P. W. 35. No doubt the first respondent contended that the letters were genuine and prayed .

for their examination by an expert but actually did not examine the expert, and consequently we are asked to draw an adverse inference against the letters being genuine. The learned Advocate further contended that there were several discrepancies between the evidence put forward by R. W. 1 Dalal and the first respondent Shende regarding the manner in which Exts. 127 and 128 were obtained, and consequently that evidence should not be accepted. At any rate, it is pointed out that the effort on the part of the first respondent would clearly show an anxiety on his part to get out ofExts. 42 and 43. We do not quite appreciate this submission because the pamphlet;, if proved, would certainly hurt the first respondent and he would, therefore, contest either the genuineness or the proof of those pamphlets. There would be minor discrepancies in the evidence in every case and we have no doubt that Bhan Dalal 1 R. W. i did not say that the letters were signed in his presence.

In support of this submission an application dated November 29, 1972 filed on behalf of the petitioners was relied upon. In that application there was a reference to the suggestion made to P. W. 35 that Exts. 127 and 128 were handed over to Dada S~en. de by the witnesses saying that those documents were written by ~m i~ the presence of Bhau Dalal. As the witness denied this suggestion, it was prayed that the documents may be sent to the handwriting expert. Both the first respondent as well as the petitioners applied to have them examined, but neither of them led evidence of experts. The petitioners got them examined by an expert, but did not produce him as a witness while the first respondent did not name an expert but asked the Court to nominate. In any case no evidence of experts was produced by either side. It was not also suggested to Bhan Dalal that the letters were signed by P. W. 35 in his presence.

Even Shende in his examina~on-in-chief does not say that the letters were signed by Gupta P. W. 35 m the presence of Bhau Dalal I R. W. 1. All that he says is that Ext. 127 was handed over to him by Gupta P. W. 35 while Ext. A. 128 was sent to him through a peon. The only suggestion made in cross-examination was that the draft of his letter Ext. 126 was prepared in consultation with Bhau Dalal to which Shende gave a negative reply. There is no suggestion that any of the letters said to have been written byP. W. 35 were written in the presence ofBhau Dalal or Shende. The story of Shende was that he sent Ext. 126 to P. W. 35 through his peon Waman and in reply thereto P. W. 35 . had brought with him the letter of August 15, 1972 Ext. 127 and gave it to him in his house. On the other hand he said that P. W. 35 did not tell him as to in whose presence the letter was written. He stated that he had shown this Jetter of P. W. 35 to Bhau Dalal and told him that it was given to him by P. W.

35. Shende said that he had no occasion to see the handwriting of Gupta P. W. 35 nor did he ask Bhau Dalal or Sheoshankar c1 Ninawe to make enquiries about the printing of the pamphlets. We do not see any discrepancy between this statement and the evidence of Bhau Dalal. In our view, the evidence of P. W. 35 does not inspire confidence not only because of this, but because of other inherent defects which have been pointed out by the learned Judge of the High Court. The witness does not say that he became an election agent of respondent 2 Tirpude orny towards the end as it sought to be contended. He merely says that he was a polling agent of Tirpude respondent No. 2 in that election in Tilak Ward at Bhandara which ad-r:··i5sion \vas elicited fron1 hi1n in cross-exan1ination. There 'vas also no re-examination to suggest that at the time when he printed the offending p:u11phlets he was not an election agent of Tirpude.

It is, however, co"tcnded that the evidence of this witness that he filed Exts. 42 and 43 in 1he election office within 2 or 3 days from his being informed by ~lr. Khan that election pamphlets should be filed, is corroborated by tte fact that they were said to have been seen in the election office two or chree days before the polling day. The learned Advocate for the first respondent states that even this suomission does not help the appellant's case. Jfthe evidence of Bhole P. W. 40 is read with the evidence of this witness, it would appear that the pamphlets were delivered to Bhole and Sheoshankar Ninawe on February 16, 1972, eight or fifteen days after this date he came to know that the copies of the pamphlets have to be filed in the election office, and two or three days thereafter he filed them. On this reckoning, it is contended that the pamphlets were filed in the election office about Morch 5, 1972, which was the date when the poll was held.

If so, the po Ver the papers to Kadhav N. T. for preparing the first list as asked by Tthe Deputy District Election Officer the two pamphlets marked at BABURAO v. GOVIND (Jaganmohan Reddy,!. ) A Sr. Nos. 42 and 43 were not amongst those papers. He was directed by the Deputy District Election Officer Ramteke to prepare the supplementary list in the beginning of November 1972. According to him he might have come across the pamphlets at Ext. Nos. 42 and 43 in the District Election Office file sometime in the month of May 1972 when the inspection of the record was taken by someone. In cross-examination he admitted that he could not say who had received the B documents Exts. 42 and 43. Significantly, there was no cross-examination suggesting that this witness had brought to the notice of Ramteke Deputy District Election Officer, Exts.

42 and 43 before the date of polling as asserted by Ramteke, though according to his version the first time he saw those pamphlets was in May 1972 which was long. after the polling. c It is for the appellants to prove that these documents were in fact filed in the election office before the date of polling and the surest way they could have done so is to have called for the Inward Register, which is admitted to have been maintained, in which according to all the witnesses P. W. 38, P. W. 18 and 1R. W. 13 every document received in the office is entered and numbered. The onus is certainly not on the first respondent when he had denied that these documents were D ever in existence before the date of election or were filed in the election office. Even the publisher Balpande, signatories M. S. Motghara and· Sakharam Narayanji Dipate in respectofExt. 43, and Tukaram Rakhalu Shende in respect of Ext. 42, were summoned by the petitioners but were not examined.

Balpande is said to be a witness in the complaint (Ext. 93) filed by the first petitioner Karemore against the printer and editor of Bhandara Times in respect of the publication of Dhote's E speech. All the above persons who were not examined are Congressmen or Congress workers (see the evidence ofKaremore P. W. 29, Dayaram Banthe 1 R. W. 2 and Gaidhane 1 R. W. 14). The alleged signatory of Ext. 43 was also a signatory of Ei llants for not accepting those reasons, qμt we find ourselves unable to reject the appreciation of the learned Junge for not accepting the evidence of these witnesses. We would have examined the reasons in the light of the comments submitted by the learned Advocate in detail, but we hwe not done so because of our anxiety to keep the length of this judgment within appreciable limits.

If we may take one ground which uniformly has been admitted by most of these witnesses, it is that they have neither preserved the pamphlets nor do they even remember the contents of those pamphlets. (see Foley P. W. 14, Yelne P. W. 29, Tizare P. W. 30-to name a few. ) Even Ramteke P. W. 34 District Deputy Election Officer is not able to remember the caption of any of the pamphlets though as we have seen earlier he claimed to remember that those pamphlets were seen by him before the date of the polling. Keshao Hedau P. W. 37 is a member of the Congress Party who worked for respondent No. 2. P. W. 13 likewise is a staunch Congress worker. P. W. 25 does not say that he himself received or had occasion to see: the p3. mphlets which are said to have been distributed. Though each of these circumstances may be insufficient to throw doubt on their veracity, but junctz juvant.

On a perusal of the evidence as a whole and having considered the meticulous contentions advanced by both the parties, we cannot say that the finding of the learned Trial Judge that Exts. 42 and 43 were not printed, or published or distributed before the date of polling, is not warranted. We think, on the evidence, this finding is clearly sustainable. The second head relates to corrupt practice under sub-s. (6) of s. 123 of the Act for incurring or authorizing expenditure in contravention of s. 77. This section forbids a candidate at an election to expand more than the amount prescribed which under r. 90 of the Rules relating to Assembly Constituencies in the State of Maharashtra is Rs. \2,000/-. G The first respondent has returned on exponditure of Rs. 7,749-11 out of which Rs. 6,371-61 have been paid and Rs. 1,377-50 are shown as outstanding. It is also alleged that the first respondent has committed a breach of s. 77 read with r.

86 of the Rules framed under the Act for not showing certain items of expenditure in the return filed with the District Election Officer as required by s. 78 of the Act. The learned Trial Judge was of the view that it. has not been shown how there was H non-compliance withs. 77 read with r. 86 and also that no arguments were advanced on that point. Sec;ion 77 of the Act requires that every candidate at an election shall, either by himself or hy his election BABURAO v. GOVIND (Jaganmohan Reddy, /. ) A agent, . keep a sepa~ate . and correct account of all expenditure in connec-t10n with the elect10n mcurred or authorized by him or by his election agent between the date of publication of the notification calling the electton and the date of declaration of the result thereof both dates inclusive. H also pro~ides under sub-ss.

(2) and (3) that 'the account shall contam such particulars, as may be prescribed, and that the total B of the said expenditure shall not exceed such amount as may be pre-scnbed. Rule 86 of the Rules prescribes that the account of election expenses to be kept by a candidate or his election agent under s. 77 shall contain the particulars specified therein and that vouchers shall be obtained for every item of expenditure and lodged along with the account of election expenses. The contention of the appellants is that the first respondent though he has admitted that he had kept an account in the Note-book from which he prepared the return of election expenses, did not file that Note-Book, nor bas he shown that he had maintained the accounts in accordance with the law. It is submitted that under s.

78 of the Act, the first respondent should have lodged with the District Election Officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under s. 77, and since the first respondent has not shown that the account filed by him was a true copy of the account kept by him he has committed default of the provisions of ss. 77 and 78 of the Act. Even assuming that this point had been argued, we do not think that there is any substance in the contention urged by the learned Advocate for . the appellants that the return filed by the first respondent was not a true copy of the account kept by him. The obligation is to keep separate accounts and to file a true copy of that account along with the vouchers, but there is no requirement for him to file the account book, unless the authenticity of the true copy of that account is challenged.

There is validity in the submission of the learned Advocate for the first respondent that no notice was given by the appellants to produce the account book, nor has the authenticity or veracity of the true copy of the account filed by the first respondent been challenged in any way. Every item of expenditure that has been shown in the return has been supported by the original voucher which was not challenged. Nor has anything been brought to our notice to show that there is any averment in the pleadings that the accounts filed were not a true copy of the accounts maintained. In our view, the requirements or ss. 77 ! 'nd ·G 78 have been complied with. The next ground of challenge is that the amount shown in the return is not a correct amount and that there are amounts which had been incurred in respect of several items that have not been shown in the return. There is not dispute that the items of expenditure shown in the election return amounting to Rs. 7,749· ll are not conect.

What H is sought to be proved is that the expenditure in respect of several other items other than those shown in the return has to be added. It may be mentioned that a successful candidate at an election is entitled to [1974] 2 s. C. R. A deduct Rs. 250/- deposited so that actually the amount returned has to be reduced by that amount, which will come to Rs. 7,499· 11. The learned Trial Judge has added a sum of Rs. 2,992·95 in res• peel of two items of expenditure incurred towards petrol as evidenced by Exts. 86 and 87. The amount of Rs. 952·85 is in respect of chits issned by Saxena on behalf of Congress-0 and the amount of Rs. 1,984. 30 B is in respect of chits issued on behalf of Bharatiya Jana Sangh. These two amounts total upto Rs. 2,947 · 15 and though the High Court has added Rs. 2,992 · 95 the former figure seems to be the more accu-rate one. According to the petrol dealer Gurjar I P. W.

21 the accounts of Bharatiya Jana Sangh and the Congress-0 were separate as is evidenced from Ext. 87-D-Cash and Khata entries pertaining to Bharatiya Jana Sangh and Congress-0. This witness categorically de-c nies that there is any account with him in the name of Govindrao Shende Sheoshankar Ninawe, Kharbe, Bhasker Ninawe, Saxena or Bhaske~ Hardinkar. He also says that Bhau Dalal had come to him to open an account in bis name telling him that for all the purchases made in his account, he or Govindrao Shende would be liable. He said Saxena had also come to him to open an account for Sanghathan Congress (Congress-0) and stated that he would be responsible for the D purchases made in the account of the Sanghathan Congress and that Bhaskar Ninawe had come to open an account for the Bharatiya Jana Sangh and stated that he would be liable for the purchases made in the account of the Bharatiya Jana Sangh. P. W.

21 also says that he submitted the bills to Saxena and Bhasker Ninawe separately and received the amounts from them. Jn any case the learned Judge was wrong in including the expenditu first resp0ndent's workers were. The learned Trial Judge has given weighty reasons for rejecting this evidence and we do not think w would be justified in reversing this finding. With respect to the amounts paid to Laxmi Lithe Works for printing posters and badges, the case of the first respondent is that he paid G a consolidated sum of Rs. 730/- and another bill for Rs. 35Ho Sakhare P. W. 12. The petitioners, however, contend that a further amount of Rs. _ 7~0/- under or~ers Nos. 61A and 61B was paid by Shende to Laxnu L1tho Works which amount has not been shown in the return of election expenses. Shende, however, disputes that the above orders )'lxts. 6)! '- and 61B were placed by_him or that he had paid Rs ..

710/· m a~d1tion to the payment admitted by him under the cash memo H receipt dated February 23, 1972. Tue contention of the first respondent is that Exts. 61A and 61B are fabricated documents. Ramesh Sakhare P. W. 12 the proprietor of the Laxmi Litho Works admits that he maintains a cash hook which he bad not brought in spite of 4-M602Sup. Clf74 being called upon go bring the saine, nor is the Cash book up-to-date. A The witness also admits that he did not file the annual sales tax return for the period April I, 1971 to March 31, 1972. The order book Ext. 61A shown that pp. 117 and 118 are competely blank. The witness also a:lmitted that in Ext. 61A there are alterations at some places and the figure of Rs. 390/- is over-written as also the date of placing the order. This order shows that Rs. 375/- were received in cash which figure is B changed to Rs. 390/- by ball-pen while the other entries are in ink. We have seen the order book Ext.

61Awhich contains the above over-writings and the blank order forms in the middle so as to raise an inference that those could be filled in at any time. The High Court has held that Ext. 62 is a consolidated receipt for all the orders and total payment of Rs. 755/- had been made by Shende, and that has been iqcluded in the return of election expenses. We do not see any reason to disagree c with that finding. Certain other petrol expenses which were alleged to have been incurred by the first respondent are said not to have been included in the return. These are in respect of petrol purchased from Kulwal & Sons of which P. W. 32 is the Manager. The High Court has not accepted the evidence of P. W. 32 nor the accounts of this witness. The witness D admitted that whenever there was a credit sale, signature was taken on the credit memo, but no such signature had been taken in respect of petrol alleged to have been supplied to Shende.

It is also not explained why the credit entries were shown in 'Unchant Khata' (Suspense Account). According to the first respondent, there is another Shende by name Govind Shende in Tumsar who is a Congress worker and it is possible that petrol might have been supplied to that Govind Shende E of Tumsar. Taking advantage of this, in order to support the petitioners, the petrol taken by him is now being shown against the first respondent whose name also is Govind Shende. (See evidence ofChandra-kumar Khandelwal P. W. 32). It is also apparent that this Govind Shende of Tumsar was canvassing for the Congress candidate at Tumsar. Taking advantage of the similarity of the names, it is possible that the amount incurred by him is sought to be foisted on the first F respondent. Jn our view, the High Court has rightly rejected that evidence. A sum of Rs. 600/- was incurred by Kharabe father-in-law of the first respondent for hiring of Taxi No. MHG-191.

Jn respect of this Taxi payments were made to Laxman Peshene P. W. 7 by Waghaye who is the maternal uncle of Shende. The High Court excluded this G amount, because it is not proved that it \Vas incurred \Vith the consent or authorization of the first respond 's says that at the time of filing the complaint against the printer, publisher and owner c • of the Bhandara Times he had told Karernoro for the first time that he had attended the meeting on February 18, 1972 there would have been a reference in Ext. 93 that Dhote actually made snch an objectionable •peech in the said meeting. On the other hand, the only allegation is that the statement was wrongly published by the Bhandara Times and that the publication was dfensive. The statement in Ext. 93 is. that the accused persons did not make any inquiry for ascertain- D ing the correct facts before its publication.

According to the learned Judge the import of the statements made in the complaint appears to be that this news or the statement attributed to Jambuwantrao Dhote was a creature of the imagination of the accused themselves and not a correct reprcduction of the sreech of Jambuwantrao Dhote. He also referred to the omission to file. any complaint a~ainst Jambuwantrao Dhote and examined the reasons given by the witness E-for not going so, as indicating that his presence at the meeting was highly improbable. P. W. 25 Lalit Kumar Mishra gives a completely different version of what Dhote had spoken at the meeting. He says that he sent a report of the meeting for _Yuga Dharrna and Hindusthan Samachar News Agency, but admits that he did not include in that report the objectionable speech of Dhote as he considered it to be defamatory. It is rightly pointed cut that this was not his duty.

He was only expected to send a faithful rerort·of the speech to his news-papers and it was for the Editors to delete and edit those portions which they fornd would offend the law or were objectionable. The learned Judge· thought this witness was a sharp and. intelligent witness and gave· ·twisting answers to support the party for which he had come to depose· and, therefore, was not impressed by the manner in which he gave the· e,·idence which was artificial and unnatural. Apart from this. his statement that he neither preserved the notes nor kept a copy of the report also belies his statement that he was present. Neither P. W. 22. nor P. Ws 23 and 24 mention about. this witness to Tirpude or Karemore though he admits he knew them from 1947; it is difficult to understand how Karemore came to know what actually took place at the meeting. He was also not cited as a witness. 1 R. W. 15 denied that P. W. 25 was present at the meeting on February 18, 1972.

No dot1bt the ]earned Advocate for the appellants tried to explain away rach of the circumstances pointed out by the learned Judge for showing that they are really not such as should have been taken into consideration for discrediting the testimony of this witness. It is contended, for instance, that no questions were put 'to P. Ws 22, 23 and 24 that they were not present at the meeting. On the other hand, it is urged that P. W. 27 Saxena and P. W 40 Bhole said they were present. In our view, the depositions of these two witnesses are suspect, because while holding themselves out to be on the side of the first respondent they changed their loyalty and have gone all out to support the petitioners and the second respondent in trying to establish corrnpt practices against the first respondent. As we have stated earlier, while dealing with their eviclence in connection with Exts. 42 and 43. the learned Judge has considered their evidence to be unreliable. If .

as the learned Advocate for the appellants contends that P. W. 27 (Saxena) lent substaritial support to the first respondent then how is it that he was visiting the second respondent even during the election? It is said that he had only seen Tir1rnde in the company of Bhasker Nina we which is admitted by the witness. But this admission does not mean that he had not seen or visited the second respondent on other occasions dudng the election. At any rate, Karemore did not see him before filing t' · election petition. Nor does P. W. 27 know why Katekhaya was present at the meeting. It was well-known that Katekhaya was a candidate in another neighbouring constituency and for this witness not to know why he was present is rather strange. Likewise, the evidence of Bhole P. W. 40 was also disbelieved. This witness says that Dhote called the public •Rajha. ns' which was not spoken to. by any of the other witnesses who alleged that they were rresent at the meeting. As we have seen. P. W.

40 was only appointed an election agent of the first respondent on February 21, 1972, i. e. after the meeting. It is said that there was no suggestion made in cross-exan1ination of either Saxena P. W. 27 or Bhole P. W. 40 that they had changed their loyalties. But the fact that they appeared on behalf of the petitioners and chose to depose against the first respondent makes obvious their intention and change in their loyalties. The learned Advocate for the appellants contends that when Bhole makes himself liable for his disqualification if corrupt practice is proved against him, any stat•• men! made by him would be a statement against his interest and hence his evidenc. e cannot be rejected lightly. B. ut neither Bhole nor Saxena have gone to the extent of saying that they have taken part in any cor• rupt practice but have imputed to the first respondent several corrupt practices indulged in by him. Bho! r, as earlier noted, said that Exts.

42 & 43 did not amount to communal appeal, which. in our view. was on attempt to exculpate himself from any charge of corrupt practice. Reading the evidence of the above mentioned witnes1es as a whole and considering the circumstances which weighed with the ]earned Trial Judge for disbelieving them, we cannot say that the conclusion arrived at by him ·is ·not warranted. There is, however, the circumstance' of the publication of the report of the speech of Jambuwantrao Dhote in the Bhan~ra Times in which the offending statement appears to have been pnnted on February BABURAO v. GOVIND (laganmohan Re(idy, J. ) 473, 23, 1972. From this fact, it is sought to be contended on behalf of the appellants, that the statements of the witnesses are corroborated. We do not think that the mere publication of a report in the Bhandara Times is by itself sufficient to corroborate the testimony of these wit· nesses.

It is quite possible, as was the case of the first respondent that the Bhandara Times being inimical to Tirpude may have pui,'. lished the impugned statement of Dhote without its being uttered by Dhote to affect the chances of Tirpude at the election. The fact that the Lok Vani which was supporting Tirpude did not mention it,. nor has the reporter who was present at the meeting reported it, nor was action taken earlier to the publication of the report in the Bhandara Times to challenge that statement, nor was any notice given to Jambuwantrao Dhote in respect of that statement, nor did any of these · witnesses, having heard the said objectionable statement at the meeting. · on February 18, 1972 mention it to Tirpude or to the petitioners, create considerable doubt in one's mind as to whether such a statement was made. No doubt neither the Lok Vani nor the Bhaildara Times referred to Shende having spoken at that meeting. The excuse which P. W.

24 who was actively canvassing for Tirpude gave for not mentioning it either to Pandit-rao of Lok Vani or Hedau who was in charge of the election campaign on behalf of the second respondent Tirpude that ,Dhote had made the objectionable statement would also indicate that none of these witnesses was present at the meeting or if present did not hear any such offending statement being made by Dhote. In fact P. W. 24 has not specifically averred that Dhote made any such statement at the meeting when he drafted tlie notice on behalf of Karemore against the printer, publisher and the owner of the Bhandara Times"in 'respect of the report published therein. We have al· E ready referred in that connection what the complaint alleged, from which it cannot be said that the learned Trial Judge drew an unwarranted inference that what \Vas complained of was not that Dhote ha. d made the speech, but that the Bhandara Times published a statement which was not made by Dhote ..

We are inclined to agree with the leatned Trial Judge that it is not proved that Dhote made the offending statement on February 18, 1972, at Bhandara. F Even assuming that such an offending statement was made and that Shende, as spoken to by the. witnesses on behalf of the appellantg, said at the end that they had heard from Dhote what he had to say and that they should vote for him, that statement does not establish that Shende had. consented to what Dhote said about Karemore and G Tirpude nor is there anything to prove that Shende believed the state· ment to be false or did not believe it to be true. It is not disputed that the first appellant Karemore was given the ticket by . the Congress- R, that he had actually filed his nomination paper but suddenly with· . drew from the contest before the date fixed for withdrawal of nomi· 11ation papers and Tirpude second respondent was nominated on behalf of the Congress-R who filed his nomination papers for the, H election.

In these circumstances there; must have been a considerable agitation in the public mind and the story may have been current which. was expressed by Dhote or Shende, This assumption finds [1974] 2 S. C. R. support from the evidence of the first appellant, Baburao Karemore P. W. 39, who admittedly did propaganda work for Tirpude. He says that though he did not apply for a ticket and though the Maharashtra Provincial Congress Committee recommended Tirpude he read in the newspapers on February 2, 1972 that he was given the ticket. A meeting was then held at Tumsar and it was decided that Tirpude should be given the ticket. He and Ramnarayan Mor then went to Bombay while some others went to Delhi. At Bombay they saw the Chief Minister and Patil the P. C. C. President but they told them to go to Delhi. At Delhi they·met Sarva Shri Uma Shankar Dixit, Chavan and Fakhruddin -Ali Ahmed and every one told them that they could do nothing because Tirpude did not apply for a ticket.

The witness says that he returned on the night of February 4, 1972 after he gave a letter to Mor addressed to the Congress President and the Prime Minister requesting them to give the ticket to Tirpude. On February 7, 1972, he filed the nomination papers. That verv evening he heard on the radio that Tirpude was given the ticket and Tirpude filed his nomination papers on February 8, 1972. Then the witness withdrew his nomination on February 11, 1972. He denied that Tirpude paid Rs. 60,000/- to him for withdrawing his candidature, but nonetheless admitted that the persons in the constituency were making allegations against him to this effect. He says "When I used to go canvassing in the constituency, people used to say in my face that I had taken Rs. 60,000/- and that I had become a Mahar or that I must have been vory happy in getting the amount of Rs. 60,000/- or that I sold myself to a Mahar. I belong to Teti community. Such kind of propaganda had started from 19th to 20th".

The witness then says that he came across the report in the Bhandara Times on February 23, 1972. After that he gave notice to Dhote, Sharad Hardikar and Balwant Khisti, Editor through Zinjarde. From this statement in examination-in-chief it is obvious that though the members of the Congress Election Committee said that Tirpude was not given the ticket because he had not applied for it, nonetheless he wishes us to believe that he got the ticket without making an application for it. Secondly, he confines the charges made against him bv F persons in the constituency between February 19 & 20, 1972 to give credibility to the allegation that this was after the speech was made by Dhote on February 18, 1972. In cross-examination, however, he made certain admissions which are significant. He said that the expenses for the election petition were being met by others and that he had paid only Rs. 500/· towards the expenses.

He says he does not know whether petitioners 2 to 4 had made any contribution, that G he named certain per8ons whom he had consulted, but he denies that he had consulted Tirpude before filing the election petition. He says that he had filed his nomination as an independent candidate in 1967 election and admits that there might have been rumours, which according to him were false rumours, that he had with. drawn his candidature at that time by accepting money from Manohar Bhai Patel. He also says that it is always difficult to get a Congress ticket for the H Assembly elections, but it was true that he was given the ticket without asking for it. He says that getting the Congress ticket is a coveted BABURAO v. GOVIND (laganmohan Reddy, !. ) 475 A thing. Then he admits that Tirpude was a cetter and competent candidate, but he was confident that if he had contested the Assembly election he would have got elected. But in spite of his prospects he surrendered the ticket in favour of Tirpude.

Then he makes a further admission that after he surrender<d the ticket in favour ofTirpude his supporters did say to him that he had foolishly surrendered the B ticket which he had got and had given it to a Mahar and thereby he had spited the TelLcommunity (Telranche Nak Kap/e), These persons started saying this to him after it was known in the town that in his place the ticket was given to . Tirpude i. e. from February 8, 1972. This gives the lie direct to his assertion that the allegations against him for surrendering the ticket were being made between February c 19 & 20, 1972, when in fact they were made even from February 8, 1972 i. e. from the date Tirpude filed his nomination. The fact that . he admits that he surrendered the ticket in favour of Tirpude, gives the impression that it must have gained currency in the constituency that it was done on receiving some consideration.

If such was the case, then Dhote and Shende if he can be said to have consented may D have believed the statement 10 be true or at any rnte may not have believed it to be false, particularly having regard to his past reputation. The extra-ordinary circumstances in which this was done at the nick of time might have inclined them to that belief. As Dhote was not . examined, we do not have his version in that regard. In any view of E the matter, we hold that tqe appellants have not established the corrupt practice under this head by any credible evidence. Lastly, the quantum of costs awarded by the High Court has been challenged on the ground that the costs were not the costs incurred by F the first respondent. We have dealt with this aspect in Laxminarayan's case, to. which we have referred earlier, where we. have held that the word "incurred' occurs both in ss. 96 and 119 of the Act and means what is "actually spent". In that case, as

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