41 (i SHIV CHARAN SINGH MAHARAJ KUMAR SRI BRIJENDRA PAL August 26, 1975 [ff R. KHANNA, V. R. KRISHNA !YER AND A. C. GUPTA, JJ.] Election Law- Findlng of fact recorded by High Court-Suprenzc Court, if
can interfere with appraisc1ne11t of evidence. Representation of the People Act, 1951, s.77-Election expenses-Failure of s11coessful candidate to n1aintain account in prescribed 1nan11er, if constitlltcJ L'Otrupt practice.
The appellant and the respondent were the main candidates in the election to the Rajasthan Legislative Assembly fron1 the Karauli constituency. The result of the election was declared on March 12, 1972 and the respondent \Vas 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 pers_onal 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 I'espondent and his election agent deliberately failed to maintain regular and ..:orrect account of expenses incun'ed by them. in connection with the election and that they incurred or authorised expenditure in contravention of s.77 of the Representa- tation of the People Act, 1951. The petition was resis.ted 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. In 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 pref'erred 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 fact recorded by the High Court based upon the appraisement of evidence unless such finding is vitiated by some glaring infirmity.
[420FJ (ii) Even if the account of election expenses was not maintained in the pres- cribed manner, that fact would not constitute: a corrupt practice. [4190] (iii) The High Court has corisidered the evidence brought on record <ind bas held on apprai&ement 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 malle out to f11terfere with the appraisemknt of the evidence by the High Court. [-ll 9H-420A]
(iv) The correctness of the figure of Rs. 3,523.27 as expenses incurred for the purchase of petrol is vouch-safed bv the statement of account filoed by Karauli Auto Stores. a family concern of the respondent.
Nothing has been shown as to why the statement of account filed by that concern cannot be accepted. During the pendcncy of the trial on application filed by the appellant. the High Court directed that the ac~ount books maintained by the ~espondent as \\'e1l as the cash book and the credit and cash vouchers of Karauh t-\Uto S.to1es might be shown to the appellant'~ counsel.
Tn spite of that order the appel- Jant or his counsel did not examine those account books and documents. Nothin'.:'. was consequently brought on record to question the correctness of the entries in the account books. [ 420B-C]
II ,,,_ …. _ c SHIV CHARAN v. BRIJENDRA PAL (Khanna, J.) (v) The High c·uurt declined to accept the oral evidence adduced by the appellant in support of his plea that the account does not .:orrectly show 'the expenses regarding certain number of vehicles engaged by him. The evideuce
adduced by the appellant was not only not supported by any dol'.un1ents, it ran ..:ounter to the documents which were· produced by the respondent and some of which had been signed by the witnesses produced by the appellant. [420EFJ
t vi) The plea of the respondent that he was charged only Rs. 35 / – as daily hiring charge for the truck because he prevented the requisitioning of those trucks by making a representation that they \\'ere needed for his election com- paign, has been accepted by the High Court as plausible. There is nothing cogent made out as to why a contrary view should be taken. [4-201-[]
(Yii) So far as the impugned issues of Hindi daily Kronch and pamphleL Ex.2 are concerned, there is no cogent evidence to show on the record that Radhey Shyarn Sharma published tho.se issues and the pamphlt:t at the in5tance 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 app'ellant and had been criticising him since 1970, about 14 months before the election. There is, therefore, nothing to rule out the possibility that Radbey · Shyam Sharma published the impugned issues and pamphlet at his own ttnct' without the consent of tne respondent or .his ~rection agent. [421ABl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 767 of 1973. From the Judgment and Order dated the 9th March, 1973 of the Rajasthan High Court at Jodhpur in Election Petition No. 10 of 1972. D. P. Singh, Subhagm<ll Jain and R. K. Jain, for the Appellant. A. K. Sen, Yogeshwar Prasad, S. K. Bagga, Mrs. S. Bagga
and ,"vJiss Yash Bagga, for the Respondent. The Judgment of the Court was cfelivered by KHANNA, J.-This is an appeal by Shiv Charan Singh againi;t 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- ed.
The appellant and the respondent were the main candidates in the election to the Rajasthan Legislative Assembly from the Karauli con- stituency. 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 ag~nt Jagdish Pal published and got published statements of fact ~n relation to the pers~nal character and conduct of the appel- lant which were false and which they believed to be false or did not beHev~ to be true and which statements were reasonably calculated to preiud~ce the pros~ects of the appeUant's election. The second ground on which the election of the respondent was assailed was that the res- pondent and his election agent d~liberatelv failed to maintain regular and correct account of expenses mcurred by them in connection with the ele~tion and .that they incurred or authorised expenditure in con- travention of section 77 of the Representation of the People Act, 1951. As r~gards the first ground, it was stated that the resnondent and his election agent got published news item Ex. 1 in "Kronch" a Hindi weekly dated February 25, 1972 published and printed in _Jaipur. Radhey Shyam Shanna was the editor of that weekly. The aforesaid news item was stated to contain false defamatory statements of fact in rela- tion to the personal character and conduct of the appellant. lt was added that the respondent and his election agent and Radhey Shy~m Sharma believed those statements, which were calculated to pre1udice 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. l. Co~ies of the aforesaid issue of Kronch were also stated to have been d1stnbuted in that meeting in the presetl)CC 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. I. The pamphlet was stated to have been distributed by the respondent, his election agent Cind Radhey Shyam Sharma at an election meeting at Bhudara on March 2, 1972. Radhey Shyam Sharma was further aUcged to have published another issue Ex. 3 of Kronch containing defama•ory statements of fact against the appe]]ant.
These statements were also stated to be objectionable in the same manner as those contained in news item Ex. I. As regards the electio~ expenses, it was stated, the respondent had not shown the expenses 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 denied the various allegations made by the appellant.
According to the respon- dent, Radhey Shyam Sharma was hostile to the appeUant and had as long ago as October JS, 1970 bitterly criticised the activities of the appelJant 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 Ex. 2. 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. A<:cording to the respondent, the allegations contained in the im- pugn.cd issues of Kronch and the pamphlet had earlier been made in some o•her papers and on the floor of the Rajasthan Legislative Assem- bly.
They had also been made by one Babula! Sharma, Convenor of Yuvak Congress Manda!. Karauli. As regards the election ex- penses, the respondent stated that he had maintained a proper anil correct statement of account and had not incurred any expenditure over and above the amount of Rs. 8,665.69 shown in his return. 'y-
c ·C SHIV CHARAN v. BR!JENDRA PAL (Khanna, J.) in the election petition ? ·'). Did the respondent and his e:ection .agent Mr. Jagdish Pal publish the statement of fact m r~l.at10n
to the personal character or conduct of the petltione~ as alleged in paragraphs 14, 16, 18, 19 and 20 of the petition ? 2. Was Mr. Radhcy Shyam Sharma engaged by the re.s- pondent to carry on his propaganda and was he m
charge of the respondent's publicity and did he pub- lish the news item in 'Kronch' and read them out and the petition ? distribute the news items and the pamphlet as stated 3. (a)
(b) Were the statements referred to in issue No. 1 false, and did the respondent or his elec!ion agent or Mr. Radhey Shyam Sharma believe them to be false. or did not believe them to be
true ? Were those statements reasonably calculated to prejudice the prospects of the petitioner's elec- tion ? 4. Have the respondent and his election agent deliberate- ly 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. In view of the findings on issue Nos. 1 and 2, issue No. 3 was held not to arise. All the same the High Court went into the matter a,nd held that neither the respondent or his -election agent nor
Radhey Sh yam Sharma had reason to believe the impugned statements published in Kronch and the pamphlet in question to be false and nlot 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 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 !11ight 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
o~ record and has held on appraiscment of that evidence that there was no cogent material to show that the respondent had incurred any expendi- ture over and above what had been shown in his return. After having been taken through the material on record, we find no cogent grouml 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 vouch·safed by the statement of accounts filed by Karauli Auto" Stores. The petrol pump which supplied petrol for the respondent belonged to that coricern.
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. Dur- rng th? 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 account books, cash book and the credit and, cash vouchers of Karauli Auto Stores might be shown to the appel- lants cou:isel. In spite of that order the appellant or his counsel did not cxamme those account books and documents.
Nothing was con· ~eguently brought on record to question the correctness of the entries m the account books. Jt has also been urged that the appellant engaged certain vehicles 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 appel- lant, we are not inclined to take a contrary view. The evidence addoced by the appellant was not only not supported by any docu- ments it ran counter to the documents which were produced by the respoildent and some of which had been signed by the witnesses pro- duced by the appellant. It is well established that in an e:ection 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 infumitv has been brought to our notice. \Ir. Singh has then submitted that the d.aily. hiring charges of a truck was about Rs. 100 but the respondent m his return showed the daily hiring charge for the truck to be Rs. 35. The.case ?f th7 respondent in that respect is that he was charged Rs. 35 as daily h1rmg charge because he prevented the requisitioning ·of. those .trucks bv .makmg _a representation that they were needed for h1> elcctwn campaign. Evi- dence was also produced in support of the above stand of the respon- dent. The High Court found the above explanation of the re~pondent to b, nlansiblc. Nothing cogent has been brouoht to our notice. a.s to why we should take a contrary view. The fact that there are suspicious y
c c SHIV CHARA'1 v. BRlJENDRA PAL (Khanna, !.) 42! fca'ures in the respondent's case about his election expenses would' not justify interference with the finding of the High Court because suspi.cion cannot take the place of proof.
Coming to the question of the impuglled 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 elec:ion agent. It is inldeed evident from the issue of Kronch dated October 15, 1970 that Radhey Shyam Sharma was·hostile to the appel- lant 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 Shyarri 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 pam- phlet were distributed in the. ejection 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 Feb- ruary 27, 1972 and March 2, l972. According to these reports, RaJhey 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 ai;ything 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 HC!sa11 constable (PW 4), according to whom some documents were distributed in a meeting held on March 2, 1972. The witness added thot 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 Has:m, in our opinion, is too slender a basis for recording a finding that the impugned pamphlet and issues of Kronch were dis'ri- bu:cd in the meeting of the respondent. It is in the evidence of Sub- lnspector Bhopal Ram (PW 18) that if any newspaper is distributed in an election meeting and a copy of it becomes easily availabfo 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 meetirig against the respondent. If as is the case of the appdla~t, the. impugned. issues of Kronch and pamphlet in question :vere widely distnbute\l m the election meetings of the respondent, it is not clear as to why the policeman on dutv in those meetings could" not secure even one copy of those issues or namphlets. The fact that no suc:h copy was sent with any of the police reports shows that the allegation of the appellant in this respect is not well-founded. SUPREJ\1E COL.RT REPORTS
In view of our findiqg that it is not proved that Radhcy Shyam ·got published the impugned issues of Kronch and pamphlet at the instance of or \Vith the consent of the respondent or his e'cction 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 1neetings of the respondent) \VC need not go into the quc:stion as lo whether the finding of the High Court on issuo No. 4 is correct ·or not.
We consequently neither affirm nor disaffirm the findine of fact or law under this issue. The aopcal fJils and is dismissed but in the circumstances without ·COStS. V.M.K. Appeal dis mi 1sed.