Supreme Court of India

GAJANAN KRISHNAJI BAPAT AND ANOTHERversusDATTAJI RAGHOBAJI MEGHE AND OTHERS

Citation: 1995 INSC 404
Decided: 18 July 1995
Disposal: Dismissed
Bench: A S ANAND

Holding

The petitioners failed to prove beyond reasonable doubt that the returned candidate incurred or authorised the alleged excess expenditures, and the High Court’s findings of suppressed expenses (except Rs. 1,320) were erroneous; therefore, the election was not set aside.

Summary

The Supreme Court examined an election petition challenging the Lok Sabha election of Datta Raghobaji Meghe on allegations that he exceeded the permissible election‑expenditure limit and committed corrupt practices. The Court reiterated that the right to elect and be elected is a statutory right governed strictly by the Representation of People Act, 1951, and that any charge of corrupt practice must be proved beyond reasonable doubt by the petitioner. It held that the High Court erred in its calculations of alleged excess petrol expenditure and in attributing various expenditures on voter cards, posters, letters and newspaper advertisements to the returned candidate without cogent evidence. The Court found that the petitioner failed to establish that the excess spending was incurred or authorised by Meghe or his election agent, and that expenditures incurred after the result were outside the scope of Section 77. Consequently, the Court dismissed the appeal, upheld the High Court’s dismissal of the election petition (except for a modest addition of Rs. 1,320), and affirmed that the election stands valid.

Issues considered

The nature of the right to elect and be elected under the Representation of People Act, 1951
The standard of proof and burden of proof in election petitions alleging corrupt practice
Whether excess election expenditure must be incurred or authorised by the candidate or his election agent to constitute a corrupt practice under Section 123(6)
Whether the High Court correctly calculated the alleged undisclosed petrol expenditure
Whether alleged expenditures on voter cards, posters, inland letters and newspaper advertisements were incurred or authorised by the returned candidate
Whether advertisements published after the declaration of result fall within the prohibitory period of Section 77
Whether the repeated amendments to the election petition were permissible under Section 86 of the Act

Legislation cited

Code of Civil Procedure, 1908s. Order VI Rule 17
Conduct of Election Rules, 1961s. Rule 90
Indian Evidence Act, 1872s. 106
Representation of People Act, 1951s. 116A, s. 123(1)(A), s. 123(2), s. 123(3A), s. 123(6), s. 77, s. 78, s. 81, s. 83, s. 86

Subjects

election petitioncorrupt practiceRepresentation of People Actelection expenditure limitburden of proofstatutory rightamendment of pleadingspolitical party accountspost‑election advertisements

Judgment

A GAJANAN KRISHNAJI BAPAT AND ANOTHER
v.
DATTAJI RAGHOBAJI MEGHE AND OTHERS

JULY 18, 1995

B [AS. ANAND AND M.K. MUKHERJEE, JJ .]

Representation of People Act, 1951-Generally--Right to elect or be
elected-Nature of-Whether statutory or common law right.

Representation of People Act, 1951-Sections 81 and 98-Election
c result-When can be inteifered with.

Representation of People Act, 1951-5ections 123 and 87(2)-Charge
of conupt practice-Nature of-Degree of proof required-Onus of proving
charge-Liability of the returned candidate-Direct and circumstantial
D evidence-Evidence Act, 187rSection 106.

Representation of People Act, 1951-Section 83-Election Peti-

E
tion-Pleadings-Requirement of-Code of Civil Procedure-Order VI.

Representation of People Act, 1951-Section 116A-Appeal-Scope
of-Evidence-When can be reappraised.
-
Representation of People Act, 1951-Sections 77 and 123-Expenditure
beyond pennissible limit-When amounts to conupt practice-Held, should
be incun-ed or authorised by the returned candidate or his election agent.

F Representation of People Act, 1951-Section 77(1)-"ln connection
with the election''-Meaning of-Expenses made after declaration of result-If
included.

Civil Procedure Code, 1908-0rder VI Rule 17-Election peti-
G lion-Amendment of-When should be allowed-Further evidence on
amended pleadings-Desirability of-Representation of People Act,
1951-Section 87(1).

The appellants, who were electors of Nagpur Parliamentary Con-
stituency, challenged the election of Respondent No. 1 to the Lok Sabha
H from their constituency, on the ground that Respondent No. l/his election
186
•
G.K. BAP AT v. D.R. MEG HE 187

agent had incurred expenditure far in excess of the limit of Rs. 1,50,000 A
permitted under Section 77. It was alleged that the expenditure actually
incurred/authorised by Respondent No. l/his elt.ction agent was shown to
--·--\ have been incurred by various organisations some of which were non-
existent.

The High Court allowed several amendment petitions, one of them B
after recording the evidence of some of the witnesses. The High Court also
allowed the recall of some witnesses in view of the amendments allowed by
it. After recording the evidence and hearing the parties, the High Court
held that Respondent No. 1 had not disclosed an expenditure of Rs. 58,220
in his return of expenditure lodged under Section 78 of the Representation c
of People Act, 1951. However, even after addition of the said amount of Rs.
58,220 to the amount of expenditure shown in the return filed by the
respondent No. 1, the total expenditure did not exceed the permissible limit
of Rs. 1,50,000, the High Court held that the respondent No. 1 did not
commit any "corrupt practice" and dismissed the election petition,
D
The High Court held that 1180 liters of petrol had been purchased
by respondent No. 1, the expenditure whereof had not been disclosed in
the return of expenditure. The High Court calculated tlie amount of petrol
consumed on the basis of oil- petrol ratio required in a particular car used
by respondent No. 1 during campaigning. The High Court held that to use E
the quantity of oil purchased by respondent No. 1, 1180 liters of petrol in
excess of that disclosed in the return was required and therefore, the High
Court allowed the claim of the appellant that an amount of Rs. 17,900
incurred in purchase of petrol had not been disclosed by respondent No.
1. The High Court further held that certain expenditure made on adver- F
tisements had not been disclosed by respondent No. 1.

The appellants filed an appeal before this Court. Respondent No. 1
also filed a cross objection challenging the findings of the High Court
which were against him. Before this court the appellant contended that G
besides the amount found to have been suppressed by the High Court
several other expenditure b1curred/authorized by respondent No. 1 had not
been disclosed by him. The appellant alleged that respondent No. 1 got
voters card distributed to all the voters of the Constituency incurring an
expenditure of Rs. 2,25,000. Further, it was alleged that respondent No. 1
got posters printed at the cost of Rs. 3,40,250. It was also alleged by the H
188 SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A appellant that respondent No. 1 sent letters to all the voters in the
Constituency through one Sarva Dharma Samajik Sangathan at the cost
of Rs. 12,40,830. the appellant further alleged that Respondent No. 1 had
incurred/authorised huge expenditure on advertisements in various
newspapers including certain "thanks giving" advertisements published
after the declaration of the result of the election.
B
Dismissing the appeal of the appellants and partly allowing the cross
objection of respondent No. 1, this Court

HELD : 1. The right to elect and the right to be elected are statutory
C rights. These rights do not inhere in a citizen as such and in order to
exercise the right certain formalities as provided by the Act and the Rules
made thereunder are required to be strictly complied with. The statutory
requirement of election law are to be strictly observed because the election
contest is not an action at law or a suit in equity but is a purely statutory
D proceeding unknown to the common law. The Act is a complete code in
itself for challenging an election and an election must be challenged only
in the manner provided for by the Act. [203-E]

2.1. Though the election of a successful candidate is not to be
interfered with lightly and the verdict of the electorate ups~t, this Court
E has emphasised in more than one case that one of the essentials of the
election. law is to safeguard the purity of the election process and to see
that people do not get elected by flagrant breaches of the law or by
committing corrupt practices. It must be remembered that an election
petition is not a matter in which the only persons interested are the
F candidates who fought the election against each other. The public is also
substantially interested in it and it is so because election .is an essential
part of a democratic process. It is equally well settled by this Court and
necessary to bear in mind that a charge of corrupt practice is in the nature
of a quasi criminal charge, as its consequence is not only to render the
election of the returned candidate void but in some cases even to impose
G upon him a disqualification for contesting even the next election. The
evidence led in support of corrupt practice must therefore, not only be
cogent and definite but if the election petitioner has to succeed, he must
establish definitely and to the satisfaction of the court, the charge of
corrupt practice which be levels against the returned candidate. The onus
H lies heavily on the election petitioner to establish the charge of corrupt
'
:). G.K. BAPAT v. D.R. MEGHE 189

practice and in case of doubt the benefit goes to the returned candidate. A
In the case of an election petition, based on allegations of commission of
corrupt practice, the standard of proof is generally speaking that of
criminal trials, which requires strict proof of the charge beyond a
reasonable doubt and the burden of proof is on the petitioner and that
burden does not shift. (204-C-G]
B
Nihal Singh v. Rao Birendra 5_ingh & Anr., (1970] 3 SCC 239;0m
Prabha Jain v. Charan Das & Anr., (1975] Supp. SCR 101;Daulat Ram
Chauhan v. Anand Shanna, (1984] 2 SCR 419 and Quamarnl Islam v. S.K
Kanta & Ors., (1994] Supp. 3 SCC 5, referred to.
c
2.2. However, the returned candidate is not absolved from his
liability to bring forth evidence on the record to rebut the case of the
petitioner and to particularly prove such facts which are within his special
knowledge. Though, the nature of allegations in cases alleging corrupt
practices are quasi-criminal and the burden is heavy on him who assails
an election but unlike in a criminal trial, where an accused has the liberty D
to keep silent, during the trial of an election petition the returned can-
didate has to place before the Court his version and to satisfy the Court
that he had not committed the corrupt practice as alleged in the petition
and wherever necessary by adducing evidence besides giving his sworn
testimony denying the allegations. However, this stage reaches if and when E
the election petitioner leads cogent and reliable evidence to prove the
charges levelled against the returned candidate as, only then, can it be said
that the former has discharged his burden. That necessarily means, that
if the election petitioner fails to adduce such evidence which may persuade
the Court to draw a presumption in his favour, the returned candidate will
not be required to discharge his burden by adducing evidence in rebuttal. F
(205-A-C]
2.3. While it will be pertinent to mention that the election petitioner
has to establish the charge by proof beyond reasonable doubt and not
merely by preponderance of probabilities as in civil action, the courts are G
not required to extend or stretch the doctrine to such an extreme extent

- as to make it well nigh impossible to prove any allegation of corrupt
practice. (206-A]

Surendra Singh v. Hardayal Singh, AIR (1985) SC 89 and Harcharan
Singh v. Sajjan Singh, AIR (1985) SC 236, relied on. H
190 SUPREME COURT REPORTS [1995] surP. 2S.C.R. (

A 2.4. Some times direct evidence about the commission of corrupt
practice may not be forthcoming or available and in that case, the charge
may be proved by producing circumstantial evidence but the courts, in
such cases insist, that each of the circumstances must be proved in-
dividually and all the circumstances put together must point unerringly
only to the hypothesis of the commission of the corrupt practice by the
B returned candidate and must not be capable of any other hypothesis
consistent with the innocence of the returned candidate. [206-B]

Quamantl Islam v. S.K Kanta & Ors., [1994] Supp. 3 SCC 5;Raj
Narain v. Indira Gandhi, [1976] 2 SCR 347 and Ch. Razik Ram v. Ch.
C Jaswant Singh Chauhan & Ors., [1975] 4 SCC 769, referred to.

3.1. The election law insists that to unseat a returned candidate, the
corrupt practice must be specifically alleged and strictly proved to have
been committed by the returned candidate himself or by his dection agent
or by any other person with the consent of the returned candidate. or by
D his election agent. Suspicion, howsoever strong, cannot take the place of
proof, whether the allegations are sought to be established by direct
evidence or by circumstantial evidence. Since, pleadings play an important
role in an election petition, the legislature has provided that the allegations
of corrupt practice must be properly alleged and both the material facts
E and particulars provided in the petition itself so as to disclose a complete
cause of, action. Sec~ion 83 of the Representation of People Act, 1951 has
been held to be mandatory and requires first a concise statement of
material facts and then the full particulars of the alleged corrupt practice
so as to present a full picture of the cause of action. [206-D-G]

F 3.2. A petition levelling a charge of corrupt practice is required, by
law, to be supported by an affidavit and the election petitioner is also
obliged to disclose his source of information in respect of the commission
of the corrupt ·practice. This becomes necessary to bind the election
petitioner to the charge levelled by him. and to prevent any fishing or roving
G enquiry and to prevent the returned candidate from being taken by a
surprise. (206-H, 207-A]

Samant N. Balkrishna v. George Fernandez and Others, AIR (1969) SC
1201, referred to.

H 4. The jurisdiction to try an election petition has been vested in the
G.K. BAPAT v. D.R. MEGHE 191

High Court. Election petitions are generally speaking tried by experienced A
Judges of the High Court. Those judges have the benefit of observing the
witnesses when they give evidence. Therefore, the appreciation of evidence
by the High Court is entitled to great weight. Generally speaking this Court
accepts the findings of fact arrived at by the High Court after appreciation
of evidence. Being the Court of First Appeal, however, this court has no
B
inhibition in reserving such a finding, of fact or law, which has been
recorded on a misreading or wrong appreciation of the evidence or the law,
but ordinarily and generally speaking this court does not, as it ought not
to, interfere with the findings of fact recorded by the trial Judge of the
High Court, unless there are compelling reasons to do so. [207-B-D]
c
Sheodan Singh v. Mohan Lal Gautam, AIR (1969) SC 1024, referred
to.

5.1. If a candidate incurs or authorises expenditure in excess of the
prescribed limits, he commits the corrupt practice under Section 123(6) D
of the Representation of People Act and his election is liable to be set aside
and he also incurs the disqualification of being debarred from contesting
the next election. From a plain reading of Sections 123(6) and 77 including
Explanation I to the Section 77 of the Act, it is clear that in order to be a
corrupt practice, the excessive expenditure must be incurred or authorised
by the candidate or his election agent. An expenditure incurred by a third E
person, which is not authorised by the candidate or his election agent is
not a corrupt practice. [208-F]

5.2. Unless the expenditure is in fact incurred or authorised by the
candidate or his election agent, he cannot be saddled with that expendi- F
tore. Of course a candidate cannot be permitted to place his own funds in
the power of possession of a political party, an association, or some other
persons or individuals for being spent on his behalf and then plead for the
protection under Explanation (1) to Section 77 of the Representation of
People Act. Where the election petitioner successfully establishes that the
funds were provided by the returned candidate, if would be immaterial as G
to who actually made the payments, which ought to have been included in
the return of election expense. It is not "whose hand it is that spends the
money". The essence of the matter is "whose money it is" that has been
spent. In order that explanation (1) to Section 77 of the Act may apply,
therefore, it must be proved that the source of the expenditure incurred H
192 SUPREME COURT REPORTS (1995] SUPP. 2S.C.R.

A was not out of the money of the candidate or his election agent. [210-A-C]
Magh Raj Patadia v. R.K. Birla, AIR (1971) SC 129S;Raj Narain v.
Indira Gandhi, [1976] 2 SCR 347 and P. Nalla Thampy v. Union of India,
AIR (1958) SC 1133, relied on.

B 6. The High Court was wrong and it fell into a complete error in
making calculations for estimating consumption of petrol on the basis of
oil petrol ratio. The type of exercise done by the High Court had neither
any factual foundation in the election petition nor even in the evidence.
The High Court made out a new case-neither the one pleaded by the
election petitioners nor the one pleaded by the returned candidate. The
c finding of the High Court is, not only conjectural but is based on surmises
and not of any evidence. [216-D]

7. The election petitioner has not adduced any cogent, satisfactory
or reliable evidence to establish that the expenditure of Rs. 2,25,000 and
D Rs. 3,40,250 as alleged in the petition had been incurred and/or authorised
by respondent no. 1 for printing of voter cards and the posters. On the
other hand it emerges, that the entire expenditure on that behalf was
undertaken and borne by the party of the petitioner and others and that
it was so done as per the past practice also. (221-E]

E 8. Though the practice followed by political parties in not maintain-
ing accounts of receipts of the sale of coupons and donations as well as
the expenditure incurred in connection with the election of its candidate
appears to be a reality but it certainly is not a good practice. It leaves a
lot of scope for soiling the purity of election by money influence. Even if
F the traders and businessmen do not desire their names to be publicized,
nothing prevents the political party from maintaining its own accounts to
show total receipts and expenditure incurred, so that there could be some
accountability. The practice being followed as per the evidence introduces
the possibility of receipt of money from the candidate himself or his
election agent for being spent for furtherance of his election, without
G getting directly exposed, thereby defeating the real intention behind Ex-
planation I to Section 77 of the Representation of People Act. It is,
therefore, appropriate for the Legislature or the Election Commission to
intervene and prescribe by Rules the requirements of maintaining true and
correct account of the receipt and expenditure by the political parties by
H disclosing the sources of receipts as welt Unless, this is done, the pos-
G.K. BAPAT v. D.R. MEGHE 193

sibility of purity of elections being soiled by money influence cannot really A
be ruled out. The political parties must disclose as to how much amount
was collected by it and from whom and the manner in which it was spent
so that the court is in a position to determine "whose money was actually
spent" through the hands of the Party. [222-E-H, 223-A]

9. The election petitioners have failed to examine any witness to show B
that the letters had in fact been sent by respondent No. 1 to the electorate.
The letters were, on the face of it, sent by one Sangathan. No evidence has
been led to show that the money spent by the Sangathan had been provided
by respondent No. 1 either or that the Sangathan was a non-existent body.
The allegation has remained totally unsubstantiated. [225-D] c
10. The election petitioners have totally failed to bring any material
on the record to connect respondent No. 1 either with the publication of
or expenditure incurred in respect of the various advertisements as alleged
in the petition. Even though the names of the parties, organisations, D
associations, institutions, and individuals etc. had been mentioned in the
advertisements as the sponsors of the advertisements, the election
petitioners did not examine any one of them to elicit from them that they
had not issue or cause to be issued those advertisements or that they had
not incurred any expense in connection therewith. It is not unknown that
during the election, many sympathisers as well as 'others' come forward E
to support the candidature of a particular candidate and sponsor and pay
for the advertisements which they get published to further the prospects
of that candidate's election. Moreover, apart from the returned ·candidate,
the party which sponsors him as its candidate is equally interested in the
furtherance of the prospects of his election and may approach different p
organisations, associations or individuals to sponsor and publish the
ad:\'.j!rtis~ments at their expense in favour of the candidate. [245-B-C, F]

11. The "thanks giving" advertisements were published after the
declaration of result and therefore could not be said to have been issued
in connection with the election, even if the expression "in connection with G
the election" is to be given a wide amplitude. There may be cases where
some expenditure can be incurred or authorised by a returned candidate
in connection with his election, even after the declaration of result, but
unless that expenditure can be related to the process of election, authorised
or incurred during the prohibitory limits set out in Section 77(1) of the H
194 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Representation of People Act, it is not required to be included in the return
of expenses. [241-A-E]

12.1. The power of amendment given in the Code of Civil Procedure
can be invoked by the High Court because Section 86 of the Representation
of People Act itself makes Code of Civil Procedure applicable, as nearly as
B may be, to the trial or election petition, but it must not be ignored that
some of the Rules framed under the Act itself over-ride certain provisions
of the Civil Procedure Code and thus, the general power of amendment
drawn from the Code of Civil Procedure must be construed in the light of
the provisions of the election law and applied with such restraints as are
c inherent in an election petition. The High Court did not properly consider
the provisions of the election law while repeatedly allowing amendments
of the election petition in the present case. [257-B-C]

12.2. The High Court ought not to have allowed evidence to be led
by the election petitioners which was beyond the pleadings of the parties
D for no amount of evidence can cure a defect in the pleadings and it was all
the more Improper for the High Court to have allowed the pleadings to be
amended so as to be brought in conformity with the evidence already led
in the case. To say the least, it was not a desirable or a proper course to
be adopted in an election petition where the statutory requirements of the
E law of election must be strictly observed. [257-F]

Jagannath v. Jaswant Singh, [1954] StR 892, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 640 of
1993.
F
From the Judgment and Order dated 3.8.92 of the Bombay High
Court in E.P. No. 1of1991.

Dr. N.M. Ghatate, R.K. Deshpande-, Arvind Mujumdar, Atul Batra
and Ms. Indu Malhotra for the Appellants.
G
V.R. Manohar, S. Fazl, D.B. Agrawal, S.A. Bobde, P.H. Parekh, Ms.
Lucy Fazl and AS. Bhasme for the Respondents.

The Judgment of the Court was delivered by

H DR. ANAND, J. This appeal under Section 116-A of the Repre-
G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 195

sentation of People Act 1951 (hereinafter referred to as the Act), by two A
electors is directed against the judgment and order of a learned Single
Judge of the Nagpur Bench of the High Court of Judicature at Bombay
dismissing the election petition. The returned candidate has also filed
cross-objections challenging those findings which have gone against him.
Both shall be disposed of by this common judgment.
B
The appellants filed an election petition under Section 80 of the Act -
challenging the election of respondent No. 1, Dattaji Raghobaji Meghe, the
returned candidate from 23 Nagpur Parliamentary Constituency in the
elections held for the Xth Lok Sabha and also sought a declaration to the
effect that respondent No. 2 Shri Banwarilal Bhagwandas Purohit be c
declared as the duly elected candidate from the said Constituency after
setting aside the election of the returned ~1.!_didate. The challenge to the
election of respondent No.1 was majnly bated on the allegations of com-
mission of various corrupt practices by him 'and/or his election agent
detailed in the petition.
D
Appellant No.1 was at the relevant time the vice President of Bhar-
tiya Janta Party (Nagpur City) Nagpur while appellant No.2 was a worker
of the Bhartiya Janta Party. Respondent No. 2, Shri Banwarilal Bhagwan-
das Purohit, the defeated candidate had been sponsored as a candidate by
the Bhartiya Janta Party while respondent No.l Datta Raghobaji Meghe, E
the returned candidate, had been sponsored by Congree (I). Besides
respondents 1 and 2, the other candidates, who had contested the election
and had not withdrawn their candidatures from the contest, numbering
more than forty two were also joined as respondents to the election
petition.
F
The main case of the appellants projected before the High Court and
canvassed before us against the returned candidate was that the expendi-
ture incurred or authorised by respondent No.1 or his election agent was
much more than what had been disclosed by him in the return of expendi-
ture lodged under Section 1B of the Act with the District Election Officer G
and that huge expenditure incurred by him in connection with his election
had been suppressed. It was further alleged that though the expenditure
incurred in connection with the election of respondent No.l was shown to
have been incurred by the political party, some other sympathetic associa-
tions, organisations, individuals, friends and well-wishers, the said expen- H
196 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A diture in fact had been incurred and/or authoris.ed by respondent No. 1
and/or his election agent and the amount spent by those organisations had
been provided out of the funds made available by respondent No. 1 to those
parties for making the payment and their names were given only to conceal
the truth of the transactions so as to escape from the mischief of Section
B 123(6) of the Act. It was pleaded that some of the organisations under
---
whose names the advertisements had appeared, were in fact non-existent
and that the individuals who were shown ostensibly to have incurred some
expenditure for furtherance of the prospects of the election of respondent
No. 1, had actually no funds of their own to spend and respondent No. 1
C had placed his own funds in their hands to meet the expenditure. Accord-
ing to the appellants, the expenditure incurred by respondent No. 1 was
far in excess of the limit prescribed by Section 77 of the Act read with Rule
90 of the Conduct of Election Rules 1961 (hereinafter the 'Rules') and the
return of election expenditure did not reflect the correct state of affairs.
Since respondent No. 1 had exceeded the prescribed limit of expense, he
D was guilty of committing the corrupt practice under Section 123(6) of the
Act and his election was, therefore, liable to be declared void and respon-
. dent No. 1 also disqualified for committing the corrupt practice.

Respondent No. 1 before filing his written statement raised a prelimi-
E nary objection, through Ex.16 and Ex.17, to the effect that the allegations
made in the petition were vague and that material facts and particulars had
not been supplied and as such the vague pleadings were liable to be struck
off and the election petition rejected under Section 81(3) read with Section
86 of the Act. On 29.10.1991, however, Ex. 16 was rejected while applica-
tion Ex.17 was allowed to the extent that the allegations made in the
F
petition regarding the commission of corrupt practice under Section 123(2)
and (3A) were found to be vague and non-specific and the pleadings in
that connection were directe:d to be struck off. Against the order of
rejection of the preliminary objection raised in Ex. 16, respondent No. 1
prferred a special leave petition being SLP(C) No. 19165-66/91 in this
G Court which was dismissed on 20th December 1991 by the following order:

"The special leave petition is dismissed. However, this order will
not prevent him from raising objections, which are available to him
according to law, when the evidence is made on the relevant
H allegations."
G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.] 197

Subsequetly, an application, Ex. 27, filed by the appellants for leave A
to amend the election petition for correcting certain inadvertant "errors,
omissions and slips" was allowed drt 28.11.1991 and the necessary correc-
tions were carried out in the election petition. Again an application Ex.
47/A filed by the appellants seeking further amendment of the verification
clause of the petition was allowed by the Court on 18.1.1992, after an B
e.arlier application, Ex. 44, filed by the appellants seeking amendment of
the eleciton petition had been allowed on 18.12.1991.

A detailed written statement was thereafter filed by respondent No.
1

1 in which the charges levelled against him in the election petition were
vehemently denied. Respondent No. 1, in respect of certain items of C
expenditure, took a specific stand that the expenditure on those items as
detailed by the appellants in the election petition, were incurred by Nagpur
City District Congress Committee and Nagpur Gramin Congress Commit-
tee and not by him. Similarly, in respect of some other items of expenditure,
respondent No. 1 took the plea that the expenditure in respect of those
items was incurred by certain organisations, associations, individuals, D
friends and well-wishers, without any authority of consent of respondent
No. 1 or his election agent and completely on their own volitions. In the
written statement, the names of some of the organisations and individuals
as well as the associations of persons and the political party who had
incurred the expenditure were furnished by respondent No. 1. It was E
maintained by respondent No. 1 that he had not incurred any expenditure
besides the one reflected in the return of election expense and had not
committed any corrupt practice. After the amendments were carried out
by the appellants, the returned candidate, Respondent No. 1 filed yet
another application Ex.50 seeking striking out of some other 'vague and
non-specific' pleadings but the same was rejected, though the prayer of
F
Respondent No. 1 to amend the written statement made through applica-
tion Ex. 49 was allowed on 9.1.1992.

From the pleadings of the parties, the following issues were framed
on 21.1.1992:- G

(1) do the petitioners prove that they were electors in the election
held for the Tenth Lok Sabha from 23, Nagpur Parliamentary
Constituency?

(2)(a) Do the petitioners prove that a meeting was held in the H
198 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A office of the Maharashtra State Handloom Corporation on 17.5.91
during the Tenth Lok Sabha Election from 23, Nagpur Parliamen-
tary Constituency?

(b) Do the petitioners further prove that the said meeting was _.,..
addressed by the respondent No. 1?
B
(c) Do the petitioners prove that in the said meeting, respondent
No. 1 had declared that labour charges for handloom weavers
would be increased by 0.35 paise per sq. metre from June 199-1?

(d) Do the petitioners prove that the said declaration of increase
c in the labour charges was made by respondent No. 1 to hold out
promise of gratification for inducing the weavers numbering
1,50,000 to vote for the respondent No. 1?

(e) Do the petitioners prove that the said declaration made by the
respondent No. 1 amounts to commission of corrupt practice
D
within the meaning of Section 123(1)(A) i.e. bribery?

(f) Do the petitioners furthe~prove that the ~aid declaratio~ m~de
by respondent No. 1 also am~qnts to undue mfluence conshtutmg
commission of corrupt practite U!!der Section 123(2) and further
E amounts to direct or indirect interference or attempt to interfere
with the free exercise of electoral rights of the handloom weavers
who were electors in the saidI election?

(3) Do the petitioners prove that the respondent No. 1 has not
maintained correct and proper accounts as is required to be _
F maintained under Section 77 and has incurred expenses in excess
of the limit prescribed thereunder and thereby committed corrupt
practice under Section 123(6) of the Act?

(4) Do the petitioners prove that the respondent No. 1 incurred
more expenditure than what is disclosed by him in the return of
G
expenditure annexed as Annexure 7 to the petition, on the follow-
ing items as alleged in paras 2, 4 to 2.10 of the petition, on account
of the -

(i) payments made to Shri Devi Sharda Mangal Karyalaya, Nagpur,
H by way of office rent?
G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 199

(ii) payments made to M/S vishwa Bharti Typing Institute, Nagpur. A
(iii) payments made to M/S Prince Travels, Nagpur, for hiring
autorickshaws and taxis.·

(iv) payments made to M/S Pramod Automobiles, Nagpur.
B
(v) payment made to M/S Raj Automobiles, Nagpur.

(5)(a) Do the petitioners prove that the respondent no. 1 has
authorised and/or incurred expenditure on the undermentioned
items which has not been disclosed in the return of expenditure
annexed as Annexure 7 to the petition as alleged in paras men- C
tioned in the petition described against each item hereunder?

(b)(i) Do the petitioners prove that printing cards at Annexure 9
indicate that the same have been published by Nagpur City District
Congress Committee, Nagpur, but the expenditure incurred on D
printing and distribution of about 15 lacs voter- cards has been
made by respondent No. 1 to the extent of Rs. 2,25,000. Do the
petitioners further prove that the respondent No. 1 has got printed
those cards at Shakti Offset Works, Nagur and the said firm
received a total amoutl.t of Rs. 2,25,000 from respondent No. 1?
E
(ii) Do the petitioners prove that respondent 1 got printed 3,25,000 ·
posters of different sizes though those posters show that they were
issued by President, Nagpur District Congress Committee and the
entire expenditure of these posters to the tune of Rs. 3,40,250 was
made by respondent No. 1?
F
(iii) Do the petitioners prove that the respondent No. 1 published
his candidature by large size cut-outs at places mentioned in
Annexure 11 alleged to be prepared by persons whose names are
given in Annexure 10? Do the petitioners further prove that cost
of these cutouts comes out to Rs. 2,83,000 as given in Annexure G
11 and was incurred by respondent no. 1 by paying the same to
persons mentioned in Annexure 10?

(iv) Do the petitiones prove that the respondent No. 1 advertised
his candidature by wall paintings at different locations at AnneXure
12 costing about Rs. 88500? Do the petitioners further prove that H
200 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A these wall-paintings work was got executed by respondent No. 1
through painters and incurred expenditure of it by payment of
charges of painters?

(v) Do th.e petitioners prove that about 12,40,830 letters such as
those at Annexure 13 $ 14 were got prepared by the respondent
B No. 1 and were sent to voters and almost all the voters received
these letters? Do. the petitioners further prove that although on
this letter, it appears that the same is being sent at the instance of
Sarya Dharma Sambhav Samajik Sanghatna, the expenditure re-
quired in fact was incurred by respondent No. 1 to the extent of
c Rs. 12,40,830?

(vi) Do the petitioners prove that advertisement in newspapers at
Annexure A at SI.Nos. A2, AS, A7, A8, A10, A14 to A19, A22 to
A27, A28(b), A30(a) (first part) A30 (b) (second part); Annexure
Bat Sl. Nos. B4 to B9, BU to B14, B17 and B18, Annexure Cat
D Sl. Nos. Cl, C2, C4, CS, C10, C12, C14 to C18, C23 $ C24.
Annexure D: at Sl. Nos. Dl, D2, D3, DS, D7, D8, DU, D13 and
D15; Annexure Eat Sl. Nos. Ei, E2, E9 and E10; Annexure F, At
Sl. Nos. Fl, F2, F3, F6, F10, F14 and F16; Annexure G at Sl. Nos
Gl, G2 and G3; Annexure Hat Sl. Nos. HU to H14, H17 and H8
E were published by respondent no. 1 himself in connection with the
election and he himself incurred the expenditure?

(vii) Do the petitioners prove that the advertisements appearing
in newspapers at -

F Annexure A: at S.Nos. A6, A9, AU to A13, A20, A21, A27(a),
A28, A30(b) (first part) and A31(b);

Annexure B: At S.Nos. Bl, B2, B3, BlO, B15, B16 and B19.

G Annexure C: at S.Nos. C3, C6 to C9, CU, C13, C19 to C22.

Annexure D: at Sl. Nos. D6, D9, D10, D12 and D14.

Annexure E : At SI.Nos. E3 to E8.

H Annexure F: at S.Nos. F3, FS, F7 to F9, FU to F13, & F15;
G.K. BAPAT v. D.R. MFJ1HE[DR.ANAND,J.) 201

Annexure G: at S.Nos. G4 to G8; A
are published in connection with election by the respondent No. 1
and the expenditure of which is incurred by the respondent no. 1
himself though in the said advertisement the names of publishers
are shown as persons other than the respondent No. 1 as given in
Annexures. B

(6)(a) Do the petitioners prove that the respondent No. 1 had
employed M/S Yugdharma Consultant and Commercial Services,
Nagpur to publicise his candidature and incurred expenditure as
per the details shown in Annexures 17 and 18 and alleged in para C
2.13 of the petition.

(b) Do the petitioners prove that besides the above agency, the
respondent No. 1 had employed two other agencies, namely,
Orange City Advertising and Prasad Publicity for publishing his
candidature by advertisements issued in the newspapers and there- D
by authorised and incurred expenditure as per details shown in
Annexure 18A, 18B and 18C and alleged in paras 2.23A to 2.23D
of the petition?

(c) Do the petitioners prove that election agent of respondent No.
1 incurred total expenditure to the tune of Rs. 39,500 on 14.1.91 E
and 17.6.91 for publication of advertisement in connection with the
election?

(7) Do the petitioner prove that the respondent No. 47 did not
properly scrutinise the nomination of the respondent No. 3 and he
was allowed to represent himself as such, although a wireless F
message dated 26.4.91 to the contrary was received by the Return-
ing Officer prior to the acceptance of the nomination papers from
the Chief Electoral Officer of the Maharashtra?

(8) Do the petitioners prove that by allowing the respondent No. G
3 to represent himself as the officiel candidate of R.P.I. (K), the.
result of the election of the respondent No. 1 has been materially
affected?

(9) Are the petitioners entitled to have inspection of the ballot
papers on the basis of the allegations made in paras 3.1 to 3.11 of H
202 SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A the petition and the allegations made in paras ·1 to 13 of Ex. 28?

(10) Do the petitioners prove that the election of the respondent
no. 1 to the Tenth Lok Sabha from 23, Nagpur Parliamentary
Constituency is void on account of the commission of corrupt
practices under Section 123(1A) and Section U3(2) and Section
B 123(6) of the Act?

(11) Do the petitioners prove that the respondent No. 2 has
secured majority of valid votes to entitle him to be declared as duly
elected from 23, Nagpur Parlimentary Constituency to the Tenth
Lok Sabha?
c
(12) Do the petitioners prove that but for the votes obtained by
respondent no. 1 by alleged corrupt practices, the respondent No.
2 would have obtained majority of valid votes to entitle him to be
declared duly elected?
D (13) Whether respondent no. 2 can be declared as duly elected to
the Tenth Lok Sabha from 23, Nagpur Parliamentary Constituency,
Nagpur?

(14) What order?
E After the evidence of some of the witnesses was recorded on behalf
of the appellants, Election Petitioner no. 1 filed an application, Ex. 701 on
27.5.1992, once again for amending the election petition in the light of the
evidence recorded. Respondent No. 1 filed his objections to the said
application through Ex. 834 on 15.6.1992. The learned Single Judge, al-
F lowed the application permitting the election petitioner to amend the
election petition once again and being of the view that no new issue was
required to be framed on the basis of the proposed amendments directed
that the Respondent no. 1 could apply for recalling any of the petitioners'
witnesses for further cross- examination. On 17.6.1992, Respondent No. 1
G filed an application Ex. 835 for leave to amend the written statement which
was also allowed. We shall advert to the proceedings concerning various
amendments in the latter part of this judgment.

The learned Single Judge after conclusion of the evidence and after
hearing learned counsel for the parties held that the appellants (election
H petitioners) had proved that respondent No. 1 had not maintained a correct
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.) 203

and proper account of the election expenditure as is required to be A
maintained under Section 77 of the Act. It was also found that respondent
No. 1 had not shown in his return an expenditure to the extent of Rs. 58,220
apart from the expenditure shown by him in the return of election expen-
diture but since the addition of the said amount, to the amount of expen-
diture shown by respondent No. 1 in his return of election expenses, did
B
not exceed the permissible limit of Rs. 1,50,000, the returned candidate,
respondent No. 1, did not commit any corrupt practice as envisaged by
Section 123(6) and dismissed the election petition but without any order
as to costs in favour of Respondent No. 1.

Since, in this appeal learned counsel for the appellants Dr. Ghatate C
has confined his case to issues 3, 4(v), 5(b) (i) (ii) (v) (vi) (vii); issue No.
6 (a) (b)(c); and partly Issue No. 10, we are, as such, relieved of the
necessity of dealing with the other issues. We confirm the findings of the
High Court in respect of those issues of which correctness has not been
disputed before us.
D
The right to elect and the right to be elected are statutory rights.
These rights do not inhere in a citizen as such and in order to exercise the
right certain f~rmalities as provided by the Act and the Rules made
thereunder are required to be strictly complied with. The statutory require-
ments of election law are to be strictly obsrved because the election contest E
is not an action at law or a suit in equity but it is a purely statutory
proceeding unknown to the common law. The Act is a complete code in
itself for challenging an election and an election must be challenged only
in the manner provided for by the Act. In Jyoti Basu v. Debi Ghosal, [1982]
3 SCR 318, this Court observed: F

"A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a Common
Law Right. It is pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an election. Outside of G
statute, there is no right to elect, no right to be elected and no
right to dispute an election. Statutory creations they are, and
therefore, subject to statutory limitation. An Election petition is
not an action at Common Law, nor in equity. It is .a statutory
proceeding to which neither the Common Law nor the printiples
of Equity apply but only those rules which the statute makes and H
204 SUPREME COURT REPORTS [1995} SUPP. 2 S.C.R.

A applies. It is a special jurisdiction, and a special jurisdiction has
always to be exercised in accordance with the statute creating it.
Concepts familiar to Common Law and Equity must remain
strangers to Election Law unless statutorily embodied. A Court
has no right to resort to them on considerations of alleged policy
because policy in such matters as those, relating to the trial of
B election disputes, is, what the statute lays down. In the trial of
election disputes, Court is put in a straight jacket."

Though the election of a successful candidate is not to be interfered
with lightly and the verdict of the electorate upset, this Court has em-
C phasised in more than one case that one of the essentials of the election
law is to safeguard the purity of the election process and to see that people
do not get elected by flagrant breaches of the law or by committing corrupt
practices. It must be remembered that an election petition, is not a matter
in which the only persons interested are the candidates who fought the
D election against each other. The public is also substantially interested in it
and it is so because election is an essential part of a democratic process.
It is equally well settled by this Court and necessary to bear in mind that
a charge of corrupt practice is in the nature of a quasi criminal charge, as
its consequence is not only to render the election of the returned candidate
void but in some cases even to impose upon him a disqualification for
E contesting even the next election. The evidence led in support of the
corrupt practice must therefore, not only be cogent and definite but if the
election petitioner has to succeed, he must establish definitely and to the
satisfaction of the court the charge of corrupt practice which he levels
against the returned candidate. The onus lies heavily on the election
F petitioner to establish the charge of corrupt practice and in case of doubt
the benefit goes to the returned candidate. In the case of an election
petition, based on allegations of commission of corrupt practice, the stand-
ard of proof is generally speaking that of criminal trials, which requires
strict proof of the charge beyond a reasonable doubt and the burden of
proof is on the petitioner and that burden does not shift. (See with
G advantage: Nihal Singh v. Rao Birendra Singh & Anr., [1970] 3 SCC 239;0m
Prabha Jain v. Charan Das & Anr., [1975] Supp. SCR 107; Daulat Ram
_Chauhan v. Anand Sharma, [1984} 2 SCR 419 and Quamarul Islam v. S.K
Kanta and Others, [1994} Supp. 3 SCC 5.

H By this proposition, however, we should not be understood to mean
G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 205

or imply that the returned candidate is absolved from his liability to bring A
forth evidence on the record to rebut the case of the petitioner and to
particularly prove such facts which are within his special knowledge (Sec-
tion 106 Evidence Act). Though, the nature of allegations in cases alleging
corrupt practices are quasi-criminal and the burden is heavy on him who
assails an election but unlike in a criminal trial, where an accused h~s the B
liberty to keep silent, during the trial of an election petition the returned
candidate has to place before the Court his version and to satisfy the Court
that he had not committed the corrupt practice as alleged in the petition
and wherever necessary by adducing evidence besides giving his sworn
testimony denying the allegations. However, this stage reaches if and when
the election petitioner leads cogent and reliable evidence to prove the C
charges levelled against the returned candidate as, only then, can it be said
that the former has discharged his burden. That necessarily means, that if .
the election petitioner fails to adduce such evidence which may persuade
the Court to draw a presumption in his favour the returned candidate will
not be required to discharge his burden by adducing evidence in rebuttal. D
While on this point it will be also pertinent to mention that the election
petitioner has to establish the charge by proof beyond reasonable doubt
and not merely by preponderance of probabilities as in civil action. In
Surendra Singh v. Hardayal Singh, AIR (1985) SC 89 at p.97, this Court
held it as very well settled and;
E
"And if after balancing the evidence adduced there still remains
little doubt in proving the charge its benefit must go to the returned
candidate. Various tests have been laid down by the High Courts
and by this Court to determine the extent of proof required to
establish a corrupt practice. The most well accepted test however
is that the charge must be established fully to the satisfaction of F
the Court. While insisting upon the standard of strict proof beyond
a reasonable doubt, the courts are not required to extend or stretch
the doctrine to such an extreme extent as to make it well neigh
impossible to prove any allegation of corrupt practice and as was
said in Harcharan Singh v. Sajjan Singh, AIR (1985) SC 236 "such G
an approach would defeat and frustrate the very laudable and
sacrosaanct object of the Act in maintaining purity of the electoral
process".

Uniformally accepted that charges of corrupt practices are to be
equated with criminal charges and proof thereof would be not H
206 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A preponderance of probabilities, as in civil action, but proof beyond
reasonable doubt.

We are in respectful agreement with the above view. Some times
direct evidence· about the conunission of corrupt practice may not be
forthcoming or available and in that case, the charge may be proved by
B producing circUmstantial evidence but the courts, in such cases insist, that
each of the circumstances must be proved individually and all the cir-
cumstances put together must point unerringly only to the hypothesis of
the commission of the corrupt practice by the returned candidate and must
•
'

not be capable of any other hypothesis consistent with the innocence of the
returned candidate. {See: Quamarul Islam v. S.K Kanta and Others
c (supra); Raj Narain v. Indira Gandhi, [1976] 2 SCR 347; Ch. Razik Ram v.
Ch. Jaswant Singh Chouhan and Others, [1975] 4 SCC, 769.

The election law insists that to unseat a returned candidate, the
corrupt practice must be specifically alleged and strictly proved to have
D been committed by the returned candidate himself or by his election agent
or ·by any other person with the consent of the returned candidate or by
his election agent. Suspicion, howsoever, strong cannot take the place of
proof, whether the allegations are sought to be established by direct
evidence or by circumstantial evidence. Since, pleadings play an important
role in an election petition, the legislature has provided that the allegations .
E of corrupt practice must be properly alleged and both the material facts
and particulars provided in the petition itself so as to disclose a complete
cause of action.

Section 83 of the Act provides that the election petition must contain
a concise statement of the material facts on which the petitioner relies and
F further that he must set forth full particulars of the corrupt practice that
he alleges including as full a statement as possible of the name of the
parties alleged to have committed such corrupt practices and the date and
place of the commission of each of such corrupt practice. This Seeton has
been held to be mandatory and requires first a concise statement of
G material facts and then the full particulars of the alleged corrupt practice,
so as to present a full picture of the cause of action.

A petition levelling a charge of corrupt practice is required, by law,
to be supported by an. affidavit and the election petitioner is also obliged
to disclose his source of infonnation in respect of the commission of the
H corrupt practice. This becomes necessary to bind the election petitioner to
..
G.K. BAP AT v. D.R. MEGHE [DR. ANAND, J.] 207

the charge levelled by him and to prevent any fishing or roving enquiry and A
to prevent the returned candidate from being taken by a surprise. (See:
Samant N. Balak1ishna v. George Femandez and Others, AIR (1969) SC
1201.

The jurisdiction to try an election petition has been vested in the
High Courts. Election petitions are generally speaking tried by experienced
B
Judges of the High Courts. Those learned Judges have the benefit of
observing the witnesses when they give evidence. Therefore, the apprecia-
tion of evidence by the High Court is entitled to great weight. Generally
speaking this Court accepts the findings of fact arrived at by the High
Court after appreciation of evidence (See Sheodan Singh v. Mohan Lal C
Gautani, AIR (1969) SC 1024. Being the court of First Appeal, however,
this court has no inhibition in reversing such a finding, of fact or law, which
has been recorded on a misreading or wrong appreciation of the evidence
or the law, but ordinarily and generally speaking this court does not, as it
ought not to, interfere with the findings of fact recorded by the learned D
trial Judge of the High Court, unless there are compelling reasons to do
so. It is in the light of the above settled principles, that we shall consider
the materials on the record and the findings of the High Court in respect
of which challenge has been made before us.

As already noticed, the appellants confined their challenge to the E
findings in respect of some of the issues only which relate to the commis-
sion of corrup_t practice of incurring or authorising expenditure in excess
of the prescribed limits within the meaning of Section 123(6) of the Act. It
would, therefore, be appropriate to consider the parameters of the alleged
corrupt practice before we examine the findings and the arguments in p
respect of the relevant issues.

Section 77 of the Act provides that 'every candidate at an election
shall either by himself or by his election agent keep a separate and correct
account of all expenditure in connection .with the election incurred ~r
authorised by him or by his election agent between the date of publication G
fo the notification calling the election and the date of declaration of the
result thereof, both days inclusive, Explanation (1) which was introduced
. '
by the Amendment Act of 1974 declares that any expenditure incurred or
authorised in connection with the election of a candidate by a political
party or by any other association or body of per&ons or by any individual, H
208 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A (other than the candidate or his election agent) shall not be deemed to be
and shall not ever be deemed to have been, expenditure in connection with
the election incurred or authorised by the candidate or by his election
agent for the purposes of sub-section (1) of Section 77. Sub-section (2) of
Section 77 provides that the account of election expenses shall contain such
B particulars as may be prescribed and sub-section (3) lays down that the
total of the said expenditure shall not exceed such amount as may be.
prescribed. Vide Section 78 of the Act the account of election expenses is
required to be lodged with District Election Officer by every candidate at
an election within thirty days from the date of election of the returned
candidate. The maximum amount of election expenditure which may be
c incurred by the candidates for the Parliamentary and Assembly Constituen-
cies has been prescribed in Rule 90 of the Conduct of Election Rules 1961.
In so far as the Parliamentary Elections are concerned, the said limit is Rs.
1,50,000. Under Section 123(6) of the Act, the incurring or authorising of
expenditure in contravention of Section 77 of the Act amounts to commis-
D sion of a corrupt practice. However, every contravention of Section 77 of
the Act does not fall within the mischief of Section 123(6) of the Act.
Neither the violation of sub-section (1) of Section 77 nor the violation of
sub-section (2) of Section 77 amounts to the commission of the corrupt
practice under Section 123(6) of the Act. However, Section 77(3) mandates
E that the total of the expenditure in connection with the election shall not
exceed the prescribed limit and therefore the provisions of Section 123(6)
of the Act are related only to Section 77(3) of the Act. If a candidate incurs
or authorises expenditure in excess of the prescribed limits, he commits the
corrupt practice under Section 123(6) of the Act and his election is liable
to be set aside and he also incurs the disqualification of being debarred
F from contesting the next election. From a plain reading of Section 123(6)
and 77 including Explanation I to the Section 77 of the Act, it is therefore
clear that in order to be a corrupt practice, the excessive expenditure must
be incurred or auth01ised by the candidate or his election agent. An expen-
diliure incurred by a third person, which is not authorised by the candidate
G or his election agent is not a corrupt practice. In Magh Raj Patadia v. R.K
Birla, AIR (1971) SC 1295 after referring to a catena of authorities even
before the inclusion of Explanation I to Section 77 of the Act by the
Amendment Act 58 of 1974, it was empliasised that to prove the corrupt
practice of incurring or authorising expenditure beyond the prescribed
H limit, it is not sufficient for the petitioner to merely prove that the expen-
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 209

diture beyond the prescribed limit had been incurred in connection with the A
election of the retumed candidate, but he must go futther and prove that the
excess expendtire was authmised or incwred with the consent of the retumed
candidate or his election agent. In Raj Narain v. Indira Gandhi, [1976] 2 SCR
347 this Court reaffirmed the above view and taking note of the Amend-
ment Act 58 of 1974, opined that voluntary expenditure incurred by friends,
B
relations, or sympathisers of the candidate or the candidates' political party
are not required to be included in the candidate's return of expenses,
unless the expenses were incurred in the circumstances from which it could
be positively inferred that the successful candidate had undertaken that he
would reimburse the party or the person who incurred the expense. It is
not enough to prove that some advantage accrued to the returned can- c
didate or even that the expenditure was incurred for the benefit of the
returned candidate or that it was within the knowledge of the returned
candidate and he did not prevent it, to clothe the returned candidate with
the liability of committing the alleged corrupt practice. Noticing that during
an election, the sponsoring or supporting political parties as well as friends, D
sympathisers and well-wishers do sometimes incur expenditure not only
without the consent of the concerned candidate but even without his
knowledge this court opined that the successful candidate cannot be
clothed with all such expenses to suffer the disqualification.

In P. Nalla Thampy v. Union of India, AIR (1958) SC 1133, a E
Constitution Bench of this Court examined the validity of Explanation (1)
to Section 77(1) of the Act (introduced in 1974) and Chandrachud CJ (as
he then was) while upholding its constitutionality, observed :

"In any democratic system of Government, political parties occupy F
a distinct and unique place. They are looked upon as guardian
angels by their members, though occasionally, they fail to discharge
the benign role of guardian, leave alone the angelic part of it. It is
through them that t.he generality of the p~ople attempt to voice or
ventilate their grievances. Considering, also the power which they
wield in the administration of Governmental affairs, a special G
conferment of benefits on them in the matter of mobilities govern-
ing the election process cannot be regarded as unreasonable or
arbitrary."

The. Constitution Bench thus emphatically laid down that unless the H
210 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A expenditure is m fact incurred or authorised by the candidate or his
election agent, he cannot be saddled with that expenditure. Of course a
candidate cannot be permitted to place his own funds in the power or
possession of a political party, an association, or some other persons or
individuals for being spent on his behalf and then plead for the protection .
under Explanation (1) to Section 77 of the Act. Where the election
B petitioner successfully establishes that the funds were provided by the
returned candidate, it woud be immaterial as to who actually made the
payments, which ought to have been included in the return of election
expense. It is not "whose hand it is that spends the money". The essence of
the matter is "whose money it is" t~at has been spent. In order that
c explanation (1) to Section 77 of the Act may apply, therefore, it must be
proved that the source of the expenditure incurred was not out of the
money of the candidate or his election agent.

Respondent No. 1 lodged the account of his election expenses with
D the District Election Officer on 12th July, 1991, supported by 45 vouchers
disclosing the total expenditure of Rs. 72,421.85. The · appellants in the
election petition pleaded that Respondent No. 1 had not kept a true and
correct account of th~- expenditure incurred and/or authorised by him or
by his election agent in relation to the elections held on 12th June, 1991
and had exceeded the prescribed limit and thereby committed the corrupt
E practice under Section 123(6) of the Act. The appellants alleged that a
huge amount of expenditure incurred in connection with the election of
Respondent No. 1 was falsely shown to have been incurred by the political
party and other associations, persons or individuals, though in fact the
expenditure had been incured and/or authorised by Respondent No. 1
F himself or by his election agent. It was asserted that Respondent No. 1 had
placed his own funds in the power and possession of the political party,
organisations and individuals for being spent in connection with his election
in order to cin;:umvent the law and escape from the consequence of
incurring _and authorising ~xpenditure beyond the prescribed .limits. It was
alleged that Respondent No. 1 had incurred an expenditure for the purpose
G of his election during the period 25.4.1991 to 16.6.1991 to the tune of Rs.
38,30,375.50, as against the permissible limit of Rs. 1,50,000.00. The state-
ment showing the expenditure allegedly incurred and authorised by
Respondent No. 1 was given in paras 2.24 of the election petition. At the
trial, however, item no. 2, 8, 9 and 14 out of that statement were not
H pressed. The High Court, however, in para 200 of the judgment found that
G.K. BAP AT v. D.R. MEGHE [DR. ANAND, J.] 211

besides the expenditure disclosed in the return of expenses filed by A
Respondent No. 1, he had also incurred the following expenses, which had
been suppressed:

Rs. 17,900.00 for the amount paid to Raj Automobiles;

Rs. 1,320.00 for the advertisement in' the Tarun B
Bharat dated 28.4.1991.
\
Rs. 7,000.00 for the advertisement in Tarim Bharat -
Election Special.

Rs. 9,100.00 for the advertisment in Lokmat Dt.
c
12.5.1991 (Sharad Pawar Mitra Mandal)

Rs. 22,9Q!l.OO in view of the findings recorded
on issue no. 5(b)(vi) & (vii).
D
Total Rs. 58,220.00

and adding the amount of expenditure suppressed i.e. Rs. 58,220.00,
to the declared expenses, the High Court fou.nd that the return of expen-
diture. filed by Respondent No. 1 should have been for a sum of Rs. E
1,30,641.85. However, since even that amount fell short of the permissible
. expenditure of Rs. 1,50,000.00, it was found that Respondent No. 1 had not
com~tted the corrupt practice within the meaning of Section 123(6) of the
A.ct. Whereas the appellants have challenged the findings of the High
Court on 'Some of the issues, as already noticed, the returned candidate,
Respondent No. 1, has also filed cross objections challenging the finding F
of the High Court in respect of the addition of Rs. 58,220.00.

ISSUE NO. 4 (V):

Though issue No. 4 concerns five items, it is only item No. (v) which G
has been pressed before us by the learned counsel for appellants. The
findings of the High Court on items (i) to (iv) of Issue No. 4, which have
been decided against the appellants have not been challenged before us
and therefore, we confirm the findigns of the High Court regarding those
items. So far as Item No. (v) is concerned, it relates to the payments made
by respondent No. 1 to MIS Raj Automobiles for purchase of fuel Etc. H
212 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A According to the appellants, Respondent No. 1 in his return of
expenditure submitted to the District Election Officer had, under Items 31
to 34, shown the expenditure incurred by him on account of purchases of
petrol etc. from Mis. Raj Automobiles, Civil Lines, Nagpur under bills No.
401 to 404 for the period 1.5.1991 to 12.6.1991 but had failed to include the
cost of 1180 litres of petrol also allegedly purchased by the returned
B candidate from Raj Automobiles over and above the quantity of petrol
shown to have been purchased by Respondent No. 1 under bill Nos. 401,
402 and. 403, as disclosed in the return of expenses filed by him for the
period 1.5.1991 to 12.6~1991. The appellants specifically pleaded that petrol
which had been shown to have been purchased by respondent No. 1 was
C for three vehicles : (i) MH-31-G-1722; (ii) MH-02-2200; and (iii) 7069 but
-
the cost of purchase of 1180 litres of petrol had been suppressed. In his
written statement, Respondent No. 1, admitted that under items 31 to 34
in his return of expenditure, he had shown the expenditure incurred by him
on account of the purchase of petrol from M/s. Raj Automobiles during
1.5.1991 to 12.6.1991 but denied that Raj Automobiles, Civil Lines, Nagpur
.D
had sold 1180 litres of petrol over and above the quantity of petrol shown
to have been purchased by him under bill No. 401, 402, 403 filed alongwith
the statement of account. It was pleaded that the allegation was vague and
based on speculation and that no particulars had been given of the basis
on which it was alleged that he had purchased 1180 litres of petrol at the
E cost of Rs. 17,900 in addition to what had been disclosed by him.

The appellants examined PW 36, Shankar Rao Gadge, who was
working as an Accountant with Raj Automobiles at the relevant time. He
deposed that a credit account had been started for Respondent No. 1 at
F the instance of Mrs. Shalini Bai Meghe (wife of respondent No. 1 and
proprietor of Raj Automobiles) and credit slip books had been issued to
Respondent No. 1. That whenever petrol or oil was purchased by or for
respondent No. 1, a copy of the credit slip used to be given to M/s. Raj
Automobiles and its counterfoil was retained by the customer. The original
credit slips were lateron returned to the first respondent alongwith the bill.
G The witness after referring to the record deposed that fuel had been
supplied to respondent No. 1 for car Nos. MH-31-1722, MH-02-2200,
MK-1/1022 besides vehicle No. 1422 and 7069 during 1.5.1991to16.6.1991.
He also proved a cash memo dated 16.6.1991 for bill No. 2503 (Ex.681) for
sale of 10 litres of petrol sold to respondent No. L The witness admitted
H that receipt No. 843 dated 12.7.1991 (Ex. 680) was in respect of bill Nos.
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 213

401 to 405 for the consolidated amount of Rs. 12,152.40 and went on to say A
that the payments had beene made by a cheque by respondent No. 1.
According to the witness, except the petrol which was sold under the cash
memo Ex. 680 all other petrol and oil sold to Datta Meghe was worth Rs.
12152.40 p. All these transactions are carried over and eritered in their
accounts. "We did not sell either oil or petrol besides these to Datta Meghe" B
was the categorical statement made by PW36 Gadge.

The appellants also examined Shri Prakash Baidya PW53. This wit-
ness earlier used to be a partner in M/S Raj Automobiles till 1991 where
after he ceased to have any concern with Raj Automobiles. During the
parliamentary elections, he was the General Secretary of the East Nagpur C
Assembly Constituency for BJP, the party to which both the appelants as
well as respondent No. 2 belonged and was in charge of that area. He
deposed that it is necessary to put one litre of oil if the consumption of
petrol is 100 to 125 litres and that in one litre of oi~ the run of the vehicle
would be about 1000 kms. on an average consumption at the rate of 10 D
Kms per litre of petrol. During the cross-examination, he admitted that he
had deposed about the ratio of consumption of petrol and oil from his
experience and not from any book and also conceded that if an engine is
old it would consume more oil as well as more petrol and that the oil-petrol
ratio varies according to the horse power of the engine and its model and
that if the chamber of the vehicle leaks, the consumption of oil would be E
more because of leakage and not on account of the consumption. He
admitted that he is not an automobile engineer.

Respondent No. 1, the returned candidate in his statement admitted
that his wife owns Raj Automobiles and that petrol and oil were bought by F
him on credit from Raj Automobiles, except for one cash transaction on
16.6.1992 for Rs. 147.40 (Ex. 681). He went on to add that he did not buy
petrol from any other petrol station except Raj Automobiles during the
election period and that the credit slips which used to be issued to Raj
Automobiles were received back by him with the bill from Raj Automobiles G
and after the bills were paid, the credit slips were destroyed. During his
cross-examination, he stated that he had three diesel and four petrol cars
with him for his election and that he had hired some motor cars and
auto-rickshaw on 19, 20 and 21 May and 8, 9, 10 June, 1991 through Prince
Travels. He disclosed the names of the parties from whom he had procured
those vehicles and asserted that besides Car No. 7069 which he had H
214 SUPREME COURT REPORTS (1995) SUPP: 2 S.C.R.

A procured from Nagar Yuvak Sanstha, he used the cars of the workers who
used to come and see him. According to him vehicle No. 7069 is NE and
the model was 3/4 years' old.

For coming to the conclusion that the returned candidate had pur-
chased more fuel than the one shown by him in his return of expenditure,
B the High Court relied upon the petrol-oil ratio as deposed to by PW
Baidya. It was found that the amount of oil admittedly purchased by the
returned candidate as per bill No. 404 when considered in the light of the
total fuel purchased would show that, much more fuel would have been
purchased to consume the quantity of oil purchased as per bill No. 404. It.
c was found by the High Court on the basis of the calculations made that the
returned candidate had suppressed an expenditure to the tune of Rs.
18,277.60 but since the appellants had asserted that there had been sup-
pression of the use of 1180 litres of petrol worth Rs. 17,900 only, therefore
only that much of expenditure could be added to the disclosed expenses
D of the returned candidate. The High Court while entering into the calcula-
tions did not base itself on the oil-petrol ratio but multiplied the consump-
tion of petrol for one of the cars (MH-31G-1727), which was admittedly
used by respondent No. 1by3 and drew an inference that for the other 3
cars also, the same amount of petrol would have been consumed and thus
found that the returned candidate would have purchased· more petrol
E worth atleast Rs. 18277.60.

In the election petition a specific. allegation had been made to the
effect that the returned candidate had purchased 1180 litres of petrol in
addition to what had been disclosed by him from Raj Automobiles. In the
F verification of the election petition, the appellants had disclosd the source
of information with regard to the contents of para 2.10 as based on the
information received from Shri Baidya PW. In the affidavit filed in support
of the allegations of the said corrupt practice, the source of information
was also disclosed to be Shri Baidya PW. However, PW 53, Shri Prakash
Baidya, in his deposition in court did not state that he had conveyed any
G information to the election petitioners about the alleged excess purchase
of 1180 litres of petrol by Respondent No. 1 from M/s. Raj Automobiles
apart from the quantity of fuel purchased by him as disclosed in the return
of election expenditure. In his statement, he only speculated about the
excess purchase of petrol on the basis of oil-petrol ratio, based on his
H experience even though admittedly he is not an expert, not even an
.. G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.]

automobile engineer. In the election petition nothing was said abut the
petrol-oil ratio as the basis from which the appellants had infen;ed that
215

1180 litres of petrol had been purchased by the returned candidate in
.. addition to the quantity of fuel shown to have been purchased by him from
Raj Automobiles. Except for giving same figure of '1180' litres of petrol
alleged to have been purchased by respondent No. 1, the appellant did not B
give any other facts or particulars in the election petition for alleging
purchase of 1180 litres of excess petrol and left the matter totally vague.
Even in his own statement, appellant No. 1, did not disclose the basis for
arriving at the figure of '1180'. An attempt was apparently made to get
sustenance from the testimony of Baidya PW53, admittedly a partyman of
the appellants and respondent No. 2, to support the allegations made in C
the petition on the basis of oil-petrol ratio. Even in that behalf we find that
no evidence was led by the appellants to show as to what were the models
of the vehicles which were used by the returned candidate and the extent
to which all those vehicles had been used during the elections. The
returned candidate, Rl Wl, was not even asked a single question regarding D
the extent of the use of the different vehicles to determine the mileage run
in respect of each one of those vehicles. No explanation was even sought
from hm regarding the oil-petrol ratio or as to why so much of oil had
been purchased for so little fuel. In this connection, it is also relevant to
note that PW33 Shri Vijay Rathi, the Accountant of Raj Automobiles, had
been summoned by the appellants alongwith the record presumably to E
prove the excess sale of 1180 litres of petrol, apart from the fuel shown in
bill Nos. 401, 402, 403 and 404 but the record was never got exhibited and
there is, thus, force in the submission of Mr. Manohar, learned counsel for
the returned candidate that a presumption should be drawn against the
apellants to the effect that the summoned record being inconvenient was F
not got exhibited by the appellants. The observation of the High Court,
under the circumstances, to the effect that Raj Automobiles had sup-
pressed the record does not appear to be well founded as the summoned
record had been brought by PW33 to the court but the party chose not to
get the same exhibited and no fault can be found with Raj Automobiles.
G
The High Court, as already noticed, found the suppression of Rs.
18,277.60 on the calculation b~sed on the quantity of petrol purchased for
vehicles No. MH-31-G-1722. The tot.al petrol purchased for that vehicle
was shown as 470 litres and the amount of oil purchased for that vehicles
was shown to be 22 litres. Obviously, the ratio of oil-petrol as deposed to H
216 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A by Shri Baidya PW53, does not appear to have any relation to the petrol-oil
ratio for the said vehicle. On the basis of the ratio as deposed to by PW53,
more than 50 litres of oil shoud have been consumed for this vehicle. The
High Court, as already observed, calculated the cost of 470 litres of petrol
as Rs. 6927.80 and then multiplied it by 3 and arrived at the figure of Rs. . ........

20,783.40 and deducting an amount of Rs. 2505.80, which had been shown
B to be cost. of the petrol used for the two other vehicles used by the returned
candidate, determined the suppression at Rs: 18277.60, but since the
election petitioners had alleged suppression of the use of 1180 litres of
petrol worth Rs. 17,900 only, the High Court fastened the liability on the
first respondent not for the amount of Rs. 18277.60 but Rs. 17,900 only.
c
In our opinion, the approach of the High Court was wrong and it fell
into a complete error in making these calculations which are not e~en
based on guess work but are totally conjectural in nature. The type of
exercise done by the High Court had neither any factual foundation in the
D election petition nor even in the evidence. The High Court made out a new
case neither the one pleaded by the election petitioners nor the one
pleaded by.the returned candidate. It was not a permissible course for the
High Court to adopt while dealing with the allegation of commission of a
corrupt practice in an election petition. Since, no evidence was led by the
election petitioner about the alleged purchase of excess of 1180 litres of
E petrol, the High Court ought to have found the issue against the appellants.
The finding of the High Court is, not only conjectural but is based on
surmises and not on any evidence. Except PW1 who made a vague state-
ment to the effect that he had seen the vehicles pleaded in the election
petition, on the roads throughout during the elections, without indicating
F when, where and which vehicle, no other evidence was produced to show
the exent to which the other vehicles in question had been used during the
election by Respondent No. 1 or his election agent or by any other person
with the consent of respondent No. 1 or his election agent. The election
petitioner could have examined witnesses from different segments .of the
G constituency to depose, if they had seen the returned candidate or his
election agent in that area in any particular vehicle and the number ·of
occasions when the returned candidate had been so seen in different
localities in the same or different vehicles to.show the extent of run of those
vehicles by bringing out the total distance likely to have been covered. No
such evidence was led, though the production of such evidence was not an
H utter impossibility. That vehicles No. 1722 {which was made the basis for
G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.] 217

calcualtion of total run by the High Court) was more extensively usd, than A
the other vehicles is a reasonable possibility which cannot be ignored. It
was incumbent upon the appellants to prove the sale of 1180 litres of petrol
in favour of Respondent No. 1 by Raj Automobiles as alleged by them in
the election petition, by leading cogent and satisfactory evidence and they
miserably failed to prove the said charge, let alone beyond a reasonable
B
doubt. Even the mathematical calculation made by the High Court also
appears to be incorrect but we need not detain ourselves to point out the
same because of the infirmities pointed out by us in the approach of the
High Court. The finding of the High Court on Issue No. 4 (v), therefore,
cannot be sustained and we set aside that finding and hold that the
appellants have failed to prove Issue No. 4 (v) and consequently the c
addition of Rs. 17,900.00 in the return of expenditure of respondent No. 1
was not justified and the said amunt shall have to be excluded. The
cross-objection to that extent succeeds and is allowed.

ISSUE NO. S(b)(i) & (ii)
D
The allegations of the election petitioners which led to the framing
of Issue No. 5 (b)(i) and (ii) are contained in paragraphs 2.11 to 2.14 of
the election petition and concern the issuance of voter cards to 1243382
voters in the constituency by the returned candidate after getting the same
printed at a cost of Rs. 2,25,000 form Shakti Offset Works, appealing to E
the electorate to vote for the returned candidate. Besides, Respondent No.
1 is also alleged to have got printed posters of different sizes, namely, one
lakhs posters of 20" x 30"; one lakh fifty thousand posters of 18" x 23" and
seventy five thousand posters of 15"x20" propogating his candidature and
these posters of different sizes, on an average of about 300 posters were F
exhibited at each of the 1250 polling booths in the Constituency. It was
alleged that in all 3,25,000 posters were got printed by the returned
candidate between 25.4.91 and 21.5.91 after incurring an expense of Rs.
3,40,250.00 for the printig of the said posters and the first respondent did
not include in the return of his election expenses either the amount of Rs.
2,25,000 being the cost of the voters cards or Rs. 3,40,250 being the cost of G
the posters. In the written statement, while admitting that the appeal made
in the voter cards was to cast votes in favour of the first respondent and
that the posters were also published for the furtherance of the prospects
of the election of the first respondent, the returned candidate denied to
have incurred any expenditure at all on printing and ~istribution of either H
218 . SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A the voter cards or the poster. According to the first respondent, he learnt
about the printing of about four lakh voter cards by the Nagpur City
District Congress Committee at its own expense and also came to know that
some posters had been got printed and published by Nagpur City District
........
Congress Committee while some more posters had been supplied by
~ongress (I) through its sub- organisations, at various levels, as per the past
B practice and as per the practice being followed by the other parties also
for distribution and that he had neither authorised nor incurred any
expense for the said cards and posters and that the same had been
published and distributed without his knowledge let alone his consent.

C The appellant Bapat PWl in his statement deposed that voter cards
had been issued about eight days prior to the poll to every voter as
mentioned in the voters list Ex.74 and according to his estimation the cost
of printing of the voter cards would be Rs. 2,25,000. In the course.of his
statement he, however, admitted that in the case of respondent No. 2, Shri
D B.L. Purohit voter cards had also been issued to the voters but went on to
say that the same had been got printed by the BJP at its own expense and
. were distributed by the workers of the B.J.P. without any expense being
incurred or borne by respondent No. 2 himself. With regard to the publi-
cation of the posters, he deposed that the posters had been used by the
returned candidate extensively. Specillien of some of the posters were
E produced as Ex.75 to Ex.78. PWl, asserted that the expenditure for the
printing of voter cards and the posters in the case of the returned candidate
was borne by the first respondent himself and not by anyone else.

The appellants in support of their case examined PW41 Suresh
F Deotale President of Nagpur Grarnin Congress, PW42 Baliram Dakhne
Cashier, PW43 Baburao Zade, Secretary of the Gramin Congress and
PW46 Marotrao Kumbhalkar, Treasurer fo the Nagpur District Congress
Committee. The evidence of all these witnesses however reveals that the
Congress Committee had incurred the expenditure for publication of ad-
vertisements, voter cards, posters etc. in connection with the election of the
G returned candidate. These witnesses, however, admitted that the Congress
party did not maintain any account in respect of election expenses either
for the local bodies, Legislative Assemblies or Parliament; that the work
regarding the election propaganda and incurring of election expenses used
to be entrusted to one or the other of the office bearers by the Party. In
H the case of the ele€tion of Datta Meghe, the witnesses deposed thafihe
G.K BAPAT v. D.R. MEGHE [DR. ANAND, J.] 219

job had been entrusted to PW 43 Baburao Zade. These witnesses further A
deposed that money for undertaking election expenses was collected by the
Congress Party in the form of collection coupons. That a part oC the
election coupons were supplied by the All India Congress Committee in
the demonination of Rs. 2 and Rs. 5 while the rest were printed at the local
levels. No account was, however, maintained of those coupons. The posters B
were also supplied by All India Congress Committee and the Provincial
Congress Committee. PW43, Baburao Zade stated that Shakti offset was
one of the printers who had undertaken the printing job and that the orders
for printing work had been placed by him on Shakti Offset through Shri
Parshionikar. He admitted that he was a sitting MLA at the time of the C
election. He however was not aware if Parshionikar was the Secretary of
Nagpur Shahr Zila Congress Committee. From the testimony of PW41
President of Nagpur Gramin Congress it emerges that the manner of
collection of funds for election purposes was through sale of coupons. The
witness denied that not maintaining of any accounts of those coupons, was
a practice devised only for the present election but asserted that it was a D
practice which used to be followed in all earlier elections also. He went on
to add that when Shri Purohit, respondent No. 2, was a Congress Candidate
in the Parliamentary elections of 1984 and 1989, the expense for his election
propaganda had been incurred by the Congress Committee also by raising
funds through sale of coupons and that no account had been kept either E
of the coupons or even of the total expense incurred during those elections.
He was emphatic that the Congress Committee did not maintain any
account in respect of the expenditure incurred by the Party in connection
with the elections to the local bodies, Legislative Assembly or Parliamen-
tary elections. The evidence of PW42 is alJost on the same lines as that
of PW41 and PW43 in all material particulars. This witness further deposed
F
that he had learned from PW43 Baburao Zade that an amount of Rs.
40,000 had been paid to Parshionikar towards the election expenses and
that. some posters had been issued by the All India Congress Committee
also. The pass book of the Gramin Congress which was produced by the
witness, revealed that after the withdrawal of an amount of Rs. 250 on G
26.9.90, the next withdrawal was only on 10.4.92 of Rs. 3500 and that no
other amount had either been deposited or withdrawn by the party fr6m
the Bank. The evidence of the witnesses to the effect that funds for election
expenses were collected by sale of coupons and donations and no account
was maintained of the receipt and expenses, thus, receives corroboration H
220 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A from the Bank Pass Book of the Gramin Congress. The testimony of PW43
which supports the testimony of PW41 reveals that about 30,000 to 40,000
voter cards besides some handbills worth Rs. 2000 to Rs. 3000 had been
got printed by the Party through Shakti Offset Works. Explaining the
reason for not maintaining any account of receipt and expense, the wit-
nesses stated that since persons who bought the coupons or gave donations
B were mostly businessmen, who generally paid the amount by cash, and did
not want any record of the payment made by them to be kept, the accounts
were not maintained. PW44 Vishnu Dutt Misra, Vice-President of the
Nagpur Nagar Zila Congress and PW45 Awari, President fo Nagpur Nagar
Congress Committee deposed on the same lines as PW41 to PW43, PW46
c Marotrao Kumbhalkar, the Treasurer of the Party, further stated that the
responsibility for the election propaganda of the returned candidate in the
present case had been placed on Shri Parshonikar, who was made the
Secretary Incharge of the elections of Respondent No. 1 by the Party.
According to PW46, an amount of about Rs. 14 lakhs had bt:en collected
D through donations and sale of coupons, out of which Nagar Congress
Committee had also got coupons worth about Rs. 7 lakhs printed and the
remaining coupons worth Rs. 7 lakhs had been received from t~e All India
Congress Committee. The job for giving advertisement to the newspapers
etc. on behalf of various Congress Committees and organisations had been
entrusted to Shri Parishionikar. He admitted that even in 1989 when
E respondent No. 2, Banwarilal Purohit, had contested the election as a
Congress candidate, an amount of about Rs. 12 lakhs to Rs. 14 lakhs had
been collected through sale of coupons and donations. and the same had
been spent by the Party for the furtherance of the election of Respondent
No. 2, Banwarilal Purohit, without maintaining any account of receipt and
F expense.

Ashok Thakre PW54, the Manager of Shakti Offset Works deposed
that none of the candidates had approached him personally for placing orders
for printig work. He disclosed the names of the persons who had ap-
proached him on behalf of different candidates to place orders in connec-
G tion with the printing of posters of different .sizes, as reflected in Ex.75 to
Ex. 78 and asserted that orders had been placed for the same by Shri
Parshonikar and the posters had been got printed by Gramin Congress for
which purpose PW43 had also approached him. He went on to state that
Shri Parshonikar had approached him on behalf of Nagar Zila Shehr
H Congress and that the printing work was got done by Shri Pantle on behalf
- G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.]

of the Yuvak Congress. PW54 gave details of the various posters printed A
by him and by reference to ledger Ex.738/9, stated that an amount of Rs.
221

50000 has been shown to have been credited to the account by the Presi-
dent Nagar Shehr Congress Committee on 13.5.91 under five different
receipts, Ex.744 to 748, for Rs. 10000 each, totally Rs. 50,000. He then
deposed that a further sum of Rs. 50000 had been received by the Press
B
from Nagpur Zila Congress Committee, Gramin-Vibhag and that a sum of
Rs. 50000 had also been received from Zila Congress Committee (Yuvak)
on 6.6.91 and 23.10.91. An amount of Rs. 10000 was received from Nagpur
Zila Congress Committee (I) Gramin also. That all these amounts were
spent for the printing work entrusted by various Congress Committees and
organisation of the propaganda material for the election of the returned c
candidate. The returned candidate in his deposition denied to have
authorised or incurred any expense as alleged by the election petitioners
in connection either with the printing of voter cards or the posters etc. and
maintained that he had not even taken the responsibility to reimburse the
expenditre on behalf of any one and that no expenditure in that behalf had D
been incurred by ane one with his consent either.

After considering the , evidence in its totality in the light of the
pleadings in the election petition, we find that the election petitioner has
not adduced any cogent, satisfactory or reliable evidence to establish that
the expenditure of Rs. 2,25,000 and Rs. 3,40,250 as alleged in the petition E
had been incurred and/or authorised by respondent No. 1 for the prmting
of voter cards and the posters. On the other hand it emerges, that the entire
expenditure on that behalf was undertaken and borne by the Congress
Party and others and that it was so done as per the past practice also.
I F
The argument of Dr. Ghatate however is that Thakre PW54, the
.... Manager of Shakti Offs~t Works who denied the receipt of any amount
from the returned candidate could not be relied upon because there has
been some tampering with the record, including the ledger, and therefore
it should be inferred that he was helping the returned candidate. It was
submitted by the learned counsel that even though PW54 was produced G
and examined by the election petitioner, they were not bound by his entire
evidence and that once it was established that the record had been
tampered with, the onus would shift to the returned candidate to show that
he was not responsible for the tampering or that the tampering had not
been done at his instance. This argument is fallacious and does not impress H
222 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A us at all. There is no material brought on the record to even suggest let
along establish that the tampering had been done in the record at the
instance of the returned candidate. No sound foundation had been laid
either in the petition or in the evidence which may justify this court to raise
the inference, which the learned counsel invites us to draw. A similar
argument had been raised on behalf of the appellants in the trial court also
B
and the learned trial Judge found that the allegation of the tampering of
the record by Shakti Offset Works at the instance of the returned candidate
had not at all been proved, much less satisfactorily. The trial court rightly
found that the practice followed by all political parties for printing of voter
cards and posters had always been much similar and the amounts for the
c said purpose used to be spent by the political parties by sale of coupons
and by receiving donations and even when respondent No. 2 had contested
the election as a Congress candidate the same practice had been followed.
The election petitioners have failed to establish any link between the
alleged expenses and the returned candidate for printing and distribution
D of voter cards and posters and have not brought any circumstance on the
record to show that the returned ca~didate had any hand in the tampering
of record or even that the tampering of the record was done for the benefit
of the returned candidate only.

. We wish, however, to point out that though the practice followed by
E political parties in not maintaining accounts of receipts of the sale of
coupons and donations as well as the· expenditure incurred in connection
with the election of its candidate appears to be a reality but it ~ertainly is
not a good practice. It leaves a lot of scope for soilng the purity of election
by money influence. Even if the traders and businessmen do. not desire
F their names to be publicised in view the explanation of the witnesses,
nothing prevents the political party and particularly a National Party from
maintaining its own accounts to show total receipts and expenditure in-
curred, so that there could be some accountability. The practice being
followed as per the evidence introduces the possibility of receipts of money
from the candidate himself or his election agent for being spent for
G furtherance of his election, without getting directly exposed, thereby
defeating the real intention behind Explanation I to Section 77 of the Act.
It is, therefore, appropriate for the Legislature or the Election Commission
to intervene and prescribe by Rules the requirements of maintaining true
and correct account of the· receipt and expenditure by the political parties
H by disclosing the sources of receipts as well. Unless, this is done, the
G.K. BAi'AT v. D.R.MEGHbtDR.ANAND,J.] 223

possibility of purity of elections being soiled by money influence cannot A
really be ruled out. The political parties must disclose as to how much
amount was collected by it and from whom and the manner in which it was
spent so that the court is in a position to detremine "whose money was
actually spent" through the hands of the Party. It is equally necessary for
an election petitioner to produce better type of evidence to satisfy the court B
as to "whose money it was" that was being spent through the party. Vague
allegations and discrepent evidence may only create a doubt but then the

-- charge of corrupt practice cannot be held to be proved on mere lurking
suspicion or doubts.

Howsoever, undesirable and objectionable the practice might be, the C
fact remains that the evidence led by the election petitioners in this case
does not establish the charge levelled by them at all. In the absence of any
cogent, reliable, satisfactory and trustworthy evidence to show that the
respondent No. 1 or his election agent had incurred or authorised the
expenditure as alleged in the petition, the trial court rightly found the issue D
against the election petitioner and we find no reason to take a different
view. We therefore, confirm the findings of the High Court on the said
issue.

ISSUE 5 (b )(v)
E
In para 2.20 of the election petition it has been pleaded that respon-
dent No. 1 had sent personal inland letters to all the voters residing within
the constituency and the appellants had calculated the price of each such
letter as Rupee One, inclusive of printing and postage. Two of such letters,
Annexures 13 and 14, containing the residential address of respondent No. F
1 allegedly received by V~jay Shinde and Vinayak Gode PW49 were an-
nexed with the election petition. It was alleged that respondent No. 1 had
made an appeal through the inland letters to the voters to cast their vote
in his favour on 12.6.91. It was further stated that though the letters were
shown to have been sent by Sarve Dhanna Samajik Sangathan, the expen-
diture for the same was in fact authorised and incurred by respondent No. G
1 himself. It was pleaded that there were 1240830 voters in the constituency
and, therefore, respondent No. 1 was alleged to have incurred an expendi-
ture of Rs. 12,40,830 on the inland letters and he had not shown the
expenditure incurred by him in that behalf in the return of expenditure
filed by him and if the said amount is included, it would show that the H
-,
224 SUPREME COURT REPORTS r1995) SUPP. 2 S.C.R.

A returned candidate had incurred and authorised expenditure beyond the
prescribed limits and thus· committed the corrupt practice under Section
123(6) of the Act. In the written statement, the returned candidate denied
the allegations ·and styled the same as imaginary and baseless. He denied
to have sent any letter .to Vijay Shinde and Vinayak Gode, Annexure 13
and 14 respectively or to anyone else in the constituency. The allegation
B that he had incurred an expenditure of Rs. 12,40,830 was vehemently .
denied. Respondent No. 1 stated that according to the information
received by him after the election, the SaTVa Dltarma Samajik Sangathan
had got printed about two thousand letters similar to Annexure 13 and 14
and issued the same without his approval or consent and the entire expen-
--
c diture must have been borne by the Sangathan itself since it was neither
authorised nor incurred by him or by his election agent. It was stated that
the allegation in the paragraph were vague and general in nature and
lacked essential ingredients and particulars and the assertion that all the
voters in the constituency had received the letters from respondent No. 1
D was based on speculation and conjectures and not on facts.

In the original written statement filed by the returned candidate in
reply to para 2.20, it appears that while he denied the "sending" of the
inland letters identical to Annexures 13 and 14, there was no specific denial
----
made by him regarding his signatures allegedly appearing on those letters.
E In the amended written statement, a specific denial was also incorporated
stating that the respondent No. 1 had not signed those letters and that
inadvertantly it had been omitted to be mentioned in the earlier written
statement, while denying the sending of the inland letters. Thus, in the
amended written statement there was denial both, about the signatures as
well as the sending of the letters by the first respondent to the voters.
F
Respondent No. 1 also denied to have incurred or authorised any expen-
diture in connection with the printing and postage ofthose inland letters.

Appellant No. 1 Bapat, appearing as PWl in his statement asserted
that each one of the voters in the constituency had received such an inland
G letter from respondent No. 1 but admitted during his cross examination
that he had no idea whether the letters had actually been signed by the
first respondent or by someone else. The petitioner also examined Shri JD
Kotwal PW56 as the Hand- writing Expert to identify the signatures of
Respondent No. 1 on Annexures 13 and 14 (Ex.79 and 80), and to compare
H the same with the admitted signatures of the first respondent. The Hand-
G.K..BAPAT y. D.R.MEGHE[DR.ANAND,J.] 225

writing Expert PW56, however, did not support the case of the election A
petitioner and deposed that no opinion could be expressed regarding the
authorship or othrwise of the disputed signatures on Ex.79 and 80 (An-
nexure 13 and 14). With the denial by respondent No. 1 that he had neither
signed those letters nor sent any such letters to the electorate and the
evidence of the Hand-writing Expert PW56, the appellants must be held B
to have failed to prove that the letters like Annexures 13 and 14 were
signed by respondent No. 1 or that he was responsible for sending those
letters to the electorate. The argument of Dr. Ghatate that even if the
letters had not been signed by respondent No. 1, but since the same had
been sent as an appeal to vote for him, it should be presumed that he was
the author and sender of the letters, does not appeal to us. The court can c
only decide the case on the basis of the evidence led and not on what ought
to have been led. In the instant case, the election petitioners have failed to
examine any witness to show that the letters (like Annexure 13 and 14) had
in fact been sent by respondent No. 1 to the electorate. The letters were,
on the face of it, sent by the Sangathan. No evidence has been led to show D
that the money spent by the Sangathan had been provided by respondent
No. 1 either or that the Sangathan was a non-existant body. The allegation
has remained totally unsubstantiated. It was certainly not obligatory for the
returned candidate under the circumstances, to have produced any witness
from the Sangathan to prove that Sangathan had sent the letters on its own E
or that it had ·also incurred the expenditure itself. Since, the case of the
returned candidate categorically had been that those letters were neither
signed by him nor sent by him nor did he incur any expenditure in respect
thereof, it was for the election petitioners to establish the charge by leading
reliable and satisfactory evidence. The evidence of,,appallant Bapat PWl,
to the effect that he had made inquiry from the Charity Commissioner and
F
learnt that there was no such Sangathan registered with the Charity Com-
missioner, to urge that the Sangathan was a 'fake' organisation and was not
a genuine society, ignores the fact that the registration of such a Sangathan
is not necessarily to be done only with the Charity Commissioners. The
petitioner admittedly made no inquiry from any other quarter to find out G
whether or not the Sangathan was in fact in existence or not. The intrinsic
evidence of the document shows that the letters were sent by the Sangathan
and keeping in view the evidence of the handwriting expert, it appears that
the letters bore the name of 'Datta Meghe' and not is signatures. The
petitioner could have produced some witness from the Sangathan to show H
226 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A that no such letters had been sent by the Sangathan. The petitioners did
not even summon a witness from the Sangathan alongwith the record. Had
it been done and if the summons could not be served because of the alleged
non-existence of such a Sanghathan, it may have been possible for the -
petitioner to argue that the Sangathan was a fake organisation and that an
B inference may be drawn that the letters had been sent by respondent No.
1 at his expense but no such inference can be drawn in favour of the
appellants in view of the facts and circumstances existing on the record.
Respondent No. 1 had disclosed the name of Shri Bhasme as one of the
officers of the Sangathan in his testimony and the appellants should have
C sought permission of the Court to summon Shri Bhasme at that stage
atleast but they did not do so for reasons best known to them. We are
unable to agree with Dr. Ghatate, that the evidence should have been led
by the returned candidate to prove that actually the letters had been sent
by the Sangathan after incurring the expenses itself and the petitioners
should not be expected to lead such evidence. The onus to prove the charge
D was on the election petitioners and in the absence of any satisfactory
evidence adduced to discharge that onus, the returned candidate was under
no obigation to prove that he was not responsible for committing the
corrupt practice. Again, it is not the case of the appellants that the ---
expenditure had been incurred by the Sangathan, with the consent of the
E returned candidate or his election agent nor is it their case that the
returned candidate had undertaken to reimburse the expenditure incurred
by the Sangathan. The trial court, in our opinion, after properly_ considering
and appreciating the evidence rightly found that there was no evidence on
the record to support the plea that the first respondent had spent the
amount as alleged on the postage and printing of the inland letters of the
F
type, Annexure 13 and 14 (Ex.79 and 80) or that he had sent those letters
to every voter in the constituency. From the material on the record, there
is no scope even to raise a strong suspicion against the first respondent in
that behalf. The appellants appear to be labouring under the wrong im-
pression that once they make an allegation against the returned candidate,
G their responsibility is over and it is for the returned candidate to prove his
innocence. It is against the essential principles of election law. At the risk
of repetition it may be stated that where allegations of corrupt practice are
alleged, it is for the election petitioner to prove the charge against the
returned candidate beyond a reasonable doubt to the satisfaction of the
H - court. The obligation of the returned candidate to rebut the allegations by
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 227

leading evidence arises only after the election petitioners have led depend- A
able evidence in support of the charge of corrupt practice and not till then.
The appellants have in the present case failed to do so in respect of the
charge relating to issue No. 5(b)(v) and accordingly we agree with the High
Court that the returned candidate was not required to refute the charge
by leading evidence on this behalf. The issue is accordingly decided against
B
the appellants and we confirm the finding of the High Court.

Issue no. S(b)(vi) & (vii)

These two issues relate to the publication of certain advertisements
in various newspapers such as Nagpur Times, Nagpur Patrika, Nav Bharat C
Times, Tarun Bharat among others. There is some connection between
these issues and issues 6(a), (b) and (c), which we shall deal with separate-
ly. According to the election petitioners, the returned candidate had
opened an account with Nav Bharat Times, Nagpur Times and Nagpur
Patrika and had incurred an expense of Rs. 4_,89,424.00 for the publication
of various advertisements in connection with his election in those D
newspapers but the said amount was not included in the return of expen-
diture and that had the same been included, the returned candidate would
be shown to have incurred expenses beyond the permissible limits. The
brak up of the amount (Rs. 4,89,424.00) allegedly incurred or authorised
by the returned candidate as given by the appellants is as follows: E

(1) Nav Bharat Times Rs. 2,61,274.00

(2) Nagpur Times & Nagpur Patrika Rs. 2,28,150.00

It was alleged in the election petition that ·the returned candidate had an F
account, Code No. M-0042 (Ex. 441), with the Newspaper Nav Bharat
Times and though it was shown that the expenses for the advertisements
published in the newspapers were borne by Nagur District Congress Com-
mittee. Gramin Congress Committee and some other organisations and
individuals, but in fact the payments had been made out of the amounts
provided for by Respondent No. 1 to the said Committees, organisations G
and individuals. In the written statement Respondent No. 1 denied that he
had incurred or authorised any expenditure himself or through his election
agent in respect of the various advertisements appearing in Nav Bharat
Times, Nagpur Times and Nagpur Patrika as alleged in the election peti-
tion. It was also denied that the advertisements had been published at the H
228 SUPREME COURT REPORTS [1995] SUPP. 2S.C.R.

A instance of or with the knowledge of Respondent No. 1 or that he had
placed his funds at the disposal of the party and others to discharge the
liability arising out of the publication of the advertisements.

We shall first take up the publication of the advertisements
' .. in Nav
Bharat Times for which it is alleged that an expenditure of Rs. 2,61,274.00
B was incurred or authorised by Respondent No. 1.
.-
PW6 Narayan Gawalani, the Manager of Nav Bharat Times while
appearing as a witness for the election petitioner deposed that the
newspaper receives advertisements thr!:mgh advertising agencies, organisa-
C tions and individuals. The agencies which had released advertisments
during the elections were Prasad Publicity, Yugdharma Consultants and
Commercial Services (Y.C.C.S.). For Prasad Publicity and Y.C.C.S. they
had a running account while Congress had ilo running account with Nav
Bharat. He then explained how various advertisements appearing in the
D paper came to be published and disclosed the sources from which the same
had come and also identified the person or p~rty who had made payments
in respect of_ those advertisements. He went on to depose that whenever
the advertisements were received, they were entered in a register called
the "RO Input Register" but the same had not been preseved and had since -'
been destroyed; That there was no other proof pertaining to the receipt
E and publication of advertisemets. He produced the ledger and proved
various advertisements, release orders, bills etc. During his cross- examina-
tion, he was confronted with various receipts and he want on to say

"None of the adve1tisements of which the total works out to Rs. 26690
F as stated ·above were 'gi.ven by Datta Meghe. The payment also was
not made by· Datta Meghe for those advertisements, nor did he take
responsibiiity for making the.re payments."

While explaining the document Ex.407 and the existence of words "(Datta
Meghe Election advertisements)" written in ink in the copy of Ex. 407, he
G expressed ignorance as to when or by whom those words were inserted in
the office copy. He admitted that in respect of Ex.409A, the words "Datta
Meghe Account" did not appear in the original of the receipt but could not
say as to who had written those words in the copy. The. witness in response
to the question regarding the association of Respondent No. 2, with the
H partners of the firm stated
G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 229

. "I know Ramgopal Maheshwari, Prakash Maheshwari. They are A
the partners of the firm which owns Nav Bharat. It is true that on
many common social forums they and Respondent No. 2 Ban-
warilal Purohit are together. I do not know if they belong to the
same community. It is not true that our management has forged
the duplicates of receipt books at the instance of Banwarilal
B
Purohit in order to boster his false claim in ·the petition.

The witness categorically asserted that "M 00042 is the code number
of "Datta Meghe Election Advertisement Account" and that all payments
·against the said code number and account had been received from Nagpur
Shahr District Congress-I Committee and that no payment was received C
from Datta Meghe or from anyone else on behalf of Datta Meghe.

PW7, Shri Sapre, Manager, Accounts of Nav Bharat Times, deposed that
Manmohan Maheshwari is the Editor of Nav Bharat Times. That receipt
Ex. 406 was issued first in the name of Datta Meghe but later on it was D
corrected to show the name of the party as Congress Committee and it was
done under his instructions because it had been brought to his notice that
payment had not been made by Datta Mege but by Nagpur Shahr Indira
Congress Committee. He went on to state that the original receipt Ex. 406-
. A was signed by Kulkarni. Explaining the difference in scoring. of certain
words in the carbon copy Ex.406-A and its original Ex.406-A, the witness E
stated that he had scratched the original name and substituted it with the
name of Shahr Congress committee. He, however, could not state as to who
did the scori~g in the original receipt Ex.406-A, because the same had not
been done by him. When his attention was drawn to a number of other
receipts and their carbon copies and particularly the entries thereon, with F
a view to point out the difference between the entries in the originals and
the copies, the .witness stated that since receipts had been issued by
different persons like Kulkarni, Prabhakar and others, he could not explain
the reason as to why the c:orrections had been made but asserted that the
corrections had not been made only in the case of the receipts concerning
Respondent No.1 but such corrections had been made also in respect of G
the receipts issued in favour of some other candidates and all such correc-
tions were made in routine. The witness then categorically admitted.

"We do not have any personal account of the respondent No. 1
Datta Meghe in the account books. Except for the 'Datta Meghe H
230 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A Election Advertisement Account' there is no other account in
Datta Meghe's name. The receipt Ex.406 was fully written by
Kulkarni when it came to me, and it bore the two bill numbers,
and that was also the case with original Ex.406-A. I did not check
up in whose names the two bills mentioned therein, stood. They
had been checked by the Advertisement Department."
B
PW8 Pannalal Poddar was working as an Assistatn in the advertise-
ment department of Nav Bharat Times at the relevant time. He deposed
that a subsidiary ledger was being maintained in the advertisement depart-
ment and that the bills which were prepared by the advertisement depart-
C ment were entered in the said ledger against the accounts of the concerned
parties and that he used to maintain that register. He stated that at page
496 of the ledger, there exists ail account in the name of "Datta Meghe
Election Advertisement Account" and that the said account had been
written up to page 498 under the same title. He stated that out of the
D writing "Datta Meghe Election Advertising Account" Nagpur, the words
"Datta Meghe, Nagpur" were in his handwriting but the remaining words
"Election Advertisement Account" were not in his handwriting and he
could not even identify the author of the words "Election Advertisement
Account" in the above entry. He stated that entry regarding bill No.
9101007 of May, 1991 for Rs. 10,000 stood originally in the name of Datta
E Metghe but that name was scored out later on but he could not say as to
who had scored out the name and susbstituted the same by "Nagpur
Congress". That the scoring in the entries had been done in Bill Nos.
9101007, 9101343, 9101439 and 9101940 also by substituting the name of
Datta Meghe with Nagpur Congress and Nagpur Shahr Zila Congress- I.
F He, however, did not know as to who had made the corrections or even
the time when the same had been made or the reason why they had been
· made. During his cross-examination, he admitted that there were neither
any erasers nor corrections in the subsidiary register in regard to the ·four
bills (above noted) and that the entries in that register had been made
within 5 to 7 days of the issuing of the receipts. The witness specifically
G admitted that it "is not possible to say by referring to the account whether
payment was received in this account through any other organisation except
the Congress Committees."

Respondent No. 1 appearing as RlWl deposed that Parshionikar
H had been entrusted with the work of isssuing advertisements on behalf of
G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.) 2'.U

the Congress Committee. That Parshionikar was a man of his confidence. A
He deneid that he had himself entrusted any job of publication of the
advertisements in the newspapers to Parshionikar. He went on to add that
he had not asked Nav Bharat Times to open a separate account for his
election advertisements and denied any knowledge whether Nav Bharat
Times had opened any account as "Datta Meghe Account". he denied the B
suggestion that Account No. M-0042 had been opened by him initially in
the name of "Datta Meghe Account" but was lateron converted, at his
instance, to the name of "Datta Meghe Election Advertisements Account"
to escape the rigours of law. He went on to assert that he had not given
any advertisement to Nav Bharat Times nor had he paid any amount to the
said paper. C

Dr. Ghatate, learned counsel appearing for the appellants argued
that since there was an account in the name of Datta Meghe, being
Account No. M-0042, and admittedly the District Congress Committee had
no account with Nav Bharat Times, the inference was obvious that the D
assertion of the returned candidate that neither he had issued any adve-r-
tisements in Nav Bharat Times nor did he make any payment for the same
or even agreed to reimburse the expenses incurred for the publication of
the advertisements in the said paper was not correct. He submitted that
the interpolations made in the copy of the receipt Ex. 406 and its original
Ex. 406-A was a tell tale example of the tampering of the record by Nav E
Bharat Times with a view to help Respondent No. 1 to conceal the
incurring of expenditure by him and that an adverse inference should be
drawn that all the scoring etc. must have been done in various bills and
receipt etc. by the employees of Nav Bharat Times only with a view to
favour Respondent No. 1. In support of the argument, learned counsel p -
pointed out that receipt Ex. 406 dated 17.5.1991 was initially issued in the
name of Datta Meghe and ·subsequently in the origin~ receipt Ex.4o6A,
where the name of the party had. been initially len blank. the name of
Congress Committee was written even though in the carbon copy, the name
of the party continued to be shown as Datta Meghe which was also later
on interpolated and substituted to read "Datta meghe Election Advertise- G
ment Account". Learned counsel submitted that from the fact that the
original receipt Ex. 406A, was produced during the cross-examination of
the witness. by the counsel for Respondent No. 1 the only explanation for
the original receipt Ex. 406-A being found in possession of Respondent
No. ,1, could be that he had made the payment and kept the receipt, as H
\

232 SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A otherwise there was no occasion for the original receipt to be found with
the counsel for the returned candidate.

Thus, wherever it was found that the involvement of Datta ·Meghe
could be proved, his name was scored of and replaced by congress Com-
B mittee etc. by Nav Bharat Times. According to Dr. Ghatate, even if Datta
Meghe himself had not placed any order for issuance of any of the
advertisements or directly made payment for the ·same to the newspaper,
it was out of the funds provided by him
. that the payments
\
had
.
been made
and therefore the returned candidate would be deemed to have incurred
the said expenditure. Though the argumen"ts of Dr. Ghatate appear' on the.
C first blush to be attractive but they do not bear cio!)e scrutiny. Had receipt
Ex. 406-A, which is the original of receipt Ex. 406 been with Respondent
No. 1, containing a blank entry which was later on filled up as District
Congress Committee showing it as the party making· the payment, t~ere
was no reason why the same entry could not appear In the carbon copy Ex.
D 406, if the employees from Nav Bharat Times were out to oblige Respon-
dent No. l. The explanation given by the witnesses from Nav Bharat Times
regarding the appearance of different names in the original and the carbo11
copy, cannot be said to be wholly unacceptable, particularly in view of the
attendant circumstances. The possibility that interpolation was made in the
copy of the receipt Ex. 406, to create evidence against the . returned
E candidate also cannot be ruled out particularly in view of the· association
of respondent No. 2 with the management of Nav Bharat Time&. If the
original Ex.406A contained the· name of Congress Committee and the entry
in the carbon copy had been left blank, it could have been filled· up by
adding the name of Datta Meghe. That apart,. the receipts Ex. 406-A and
F its carbon copy Ex. 406 relate to· payments made in respect of two bills
based on two_distinct release orders. Neither the co.rrec~ness of tlie _release
orders, ·admittedly not issued by Datta Meghe, nor the authenticity of the
. relevant bills, which bills. again hacJ not been drawn 'in the nam.e of the
returned candidate, has. been doubted by the appellants. Therefore, inuch
capital c.annot be made out of the difference of the entries in the original
G and the carbon copy of receipts Ex.406-A and Ex.4061 when it is not
disputed that Ex. 406 was actually issued in the· name of Nagpur Shahr
Indira Congress Committee. It is also pertinent .to notice. here t~at· the
appellants have led no eivdence whatsoever to show that any order for
advertisement had been. placed by Respondent No. 1 himself ·or by his
H election agent with Nav Bharat Times in respect of either of the two release
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 233
,,
orders or bills. Not a single bill, out of the massive record produced by the A
appellants, is in the name of the returned candidate. There is not a single
receipt of payment issued in the name of the returned candidate either.
The witnesses appearing on behalf of the petitioners have categorically
asserted with reference to the record that 110 amount had been paid by
Respondent No. I for any of the advertisements published by them in their B
newspapers. The learned Trial judge has elaborately considered various
documents to which his attention was drawn and the arguments raised on
the basis of the so-called interpolations ·etc. _on sqme.pf the docull}.ents and
concluded that there had been some en;ors in th~ mentioning of Code
numbers in some receipts etc. but rightly found that the first responde.nt
could not be held responsible for any of those interpolations. No evidence C
direct or circumstantial has been led by the petitioners to support the
charges levelled against the returned candidate to the effect that the
returned candidate had provided funds to the party and it was his money
which was paid through the hands of the party. The allegation has remained
absolutely unsubstantiated: As a matter of fact, the evidence, led by the D
election petitioners instead of supporting their case, has to a large extent,
demolished the same in as much as none of the witnesses have contradicted
the assertion of the returned candidate that he incurred no expense, other
than that which he had disclosed in the return of his election expense. The
Trial Court therefore, rightly held that the expenses in respect of all the
advertisements (subject matter of the issues) which were published in Nav E
Bharat Times could ,not be said to have been incurred or authorised by the
first respondent. We find that the conclusion arrived at by the Trial Court
is based on correch,and proper appreciation of the evidence and learned
. counsel for ·the appellants h~s been. unable to point out any flaw or error
in the reasonipg of'th~ learned Single Judge of the High Court. We, F
accordingly uphold the finding of the High· Court. ·

We shall now consider the allegations regarding the expenditure .
allegedly incqrred in connection with the advertisements which ,appeared
in different issues of Nagpur Times and Nagpur Patrika for the election of
the returned candidate. It is not disputed that none of th!!. advertisements G
were issued by the returned candidate himself nor .any bill was drawn
against him nor any payment was received from· him. These advertisements
appeared under different names. For example, the advertisements,
Ex.84/13 and 84/15 appeared in the name of a ,;Well Wisher". The bill for
those advertisements, Ex. 474, was drawn by the Nagpur Times/Nagpur H
234 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Patrika combined in the name of "Nitin Furnitures" and the receipt of
payment, Ex. 475 was also drawn in the name of "Nitin Furnitures", Nagpur.
Similalry, two advertisements dated 8.6.1991 published in Nagpur times
being Ex. 84/14 and 85/15, were published by "Punjab Woodcrafts". The
bills in respect of the same were drawn in the name of 'Punjab Woodcrafts'
for Rs.15,000 and the receipt, Ex. 477 dated 14.9.1991, also shows the name
B of M/s. Punjab Woodcrafts as the party who had made the) payment. The
advertisement issued in the Nagpur Times, Ex. 84/15-and in Nagpur
Patrika, Ex. 85/16 were again published by a "Well Wisher,...Jand the bill Ex.
478 dated 30th June, 1991 for the' said advertisement was issued in the
name of "Ranjit Engineering Works" and the receipt, Ex. 479, for the same
C was also issued in the name of Ranjit Engineering Works (by mentioning
its Code no. ICR-0436). Again, for the advertisements published in Nagpur
Times and Nagpur Patrika dated 10.6.1991, by a "Well Wisher", the bill was
prepared in the name of "Talmale Bandhu" on 30~· June 1991 and the
receipt in respect of the said bill dated 14.9.1991 was also issued in favour
D of "Talmale Bandhu".

The appellants examined Shri Mahendra Bangarde PW40 who was
working as the Finance Manager with Nagpur Times since 1983. He stated
that Ms. Neelima used to work as the Data Operator. She, however, was
not examined by the appellant. He proved various entries in the ledgers,
E bills and receipts concerning publication of advertisements in the Nagpur
Times. He did not state that any of those advertisements had been pub-
lished either by Respondent No. 1 or by his election agent or that any
payment in respect thereof had been made by Respondent No. 1 or his
election agent nor even that respondent No. 1 or his election agent had
taken the responsibility for making the payment for the concerned adver-
F
tisements.

Santosh Sarode PW9 was working as the Manager General (Coor-
dination) with the Nagpur Times at the relevant time and deposed that he
knew about the advertisements which were published in the Nagpur Times
G and Nagpur Patrika during the last Lok Sabha elections. He deposed that
various advertisements which had appeared in the Nagpur Ti.mes in sup-
port of the election of the returned candidate had been published at the
instance of Shri Parshoinkar, who had taken the responsibility for settling
the bills in respect of those advertisements. He went on to say that it was
H at the asking of Shri Parshoinkar that bill Ex. 474 for Rs. 15,000 dated
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 235

30.6.1991 was drawn in the name of 'Nitin Furnitures'. The payment for the A
said bill was received on 14.9.1991 from Nitin Furnitures. He admitted that
the Punjab Woodcrafts had an account with the Newspaper and that it was
their representative who had requested them for the publication of an
advertise.ment for which also Shri Parshioinkar had taken the responsibility
for making payment and that later on Shri Parshoinkar had brought the B
amount and paid the same on behalf of Punjab Woodcrafts. The witness
stated that according to his knowledge, Shri Parshioinkar was an office
bearer of the Congress Committee and admitted that payments for some
other bills also were made by Shri Parshoinkar on behalf of various parties
as well as on behalf of the Congress Committee. Referring to the correc-
tions made in the Code numbers appearing in certain bills, the witness c
stated that he had no knowledge as to who had made those corrections or
• overwritings and when the same were made but categorically asserted that
all the payments had been made only by Shri Parshoinkar. The witness
admitted that there was an account styled as "Datta Meghe Election
Advertisement Account" with his newspaper and that the Nagpur Shahar D
District Congress Committee also had a separate account with his paper.
Explaining the corrections made in respect of receipts No. 779, 825, 1026,
1356 which had been first shown credited in the account of "Datta Meghe
Election Advertisement Account", the witness stated that it was the Nagpur
Shahar District Congress Committee, who had asked the newspaper to E
publish the advertisements and h~d also undettaken the responsibility to
make the payment for the same and since the said Congress Committee
had also an account with them directly, they had transferred the "amounts"
from "Datta Meghe Election Advertisement Account" to the account of
Nagpur Shahar District Congress Committee, as the advertisements had
F
11cfually emanated from the Congress Committee and payments had also
been made by the Congress Committee. The witness explained that initially
in their records all the amounts which were being received from Nagpur
Shahar District Congress Committee as well as from Nagar Grarnin Com-
mittee were being credited in the Account of 'Datta Megha Election
Advertisement Account' but lateron the same were corrected to accord G
with the actualities and credited in the appropriate Account of the party
responsible for the advertisement and payments. The witness stated that
since Shri Parshoinkar had brought the payments for the advertisements
from the Nagpur Shahar District Congress Committee, Nagpur Gramin
Congress Committee, Nitin Furnitures, Punjab Woodcrafts, Ranjit En- H
236 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A gineering Works and Talmale Bandhu there has been· some confusion
- about the mentioJ!,ing of the Code Numbers in various receipts. during his,
cross-examination, the witness categorically asserted that no payments
were made by Datta Meghe for the advertisements which were released by·,
Prasad Publicity nor had Datta Meghe taken the responsibility for making'"
B payments in respect of those advertisements. Thus, we find that according
to the witnesses examined by the petitioners, neither Datta Meghe had
issued any advertisement for publication nor had he made any payments
in respect of the advertisements issued at the instance of different parties
in the newspapers.

C Respondent No. 1 during the course of his examination asserted :
...
"I had not asked any of the news papers to open an account in my
name in respect of the advertisements, during the election periods.
Neither did I ask my election agent or any one else to open such
D an account on· my behalf. I have no account in my name as Datta
Meghe with any of the news papers, because I ·never asked such
account to b~ opened. I learnt yesterday that an account had been
opened in my name by Janvad, only yesterday. I do not know
whether that. ac~ount h~d been opened during the election period.
E Itis not true that.I had qpened personal accounts in my nam:e With ·
~jY Bharat, .Nagpur Tiµi.es .and Nagpur i>atrika .in relation to the .
advertisemeI).tS during the election. It is not true that I had asked
the entries which stci~d iii my ..name, to be transferred in the name
of the Congress"Committees. It is tfot true that I supplied the funds
· for· publishing these advertisements to tlie Congress Committees,
F
or the .institutions o.r individuals who made the pa~ents."
~- . . .
The assertion of the. returneP, candidate finds suppqrt from the
witnesses produced by the petitioners concerning the advertisements pub-
lished in Nagpur Times an:d Nagput Patrika.
G
The argument raised by Dr. Ghatate in respect of the advertisements
published in Nagpur Times and Nagpur Patrika was only a repetition of
the arguments raised on behalf of the election petitioners in the Trial
Court. The learned Single Judge, after examining minutely various bills,
H receipts, advertisements and entries in the ledgers etc. as also analysing the

..
G.K BAP AT v. D.R. MEGHE [DR. ANAND, J.] 237

oral evidence, crune to the conclusion that the election petitioners had A
failed to establish the charge levelled against Respondent No. 1 to the
effect that he was responsible for the publication of any of the advertise-
ments or that he had incurred or authorised any expenditure himself or
through his election agent or even that the funds allegedly provided by him
had been utilised to discharge the liabilities. The High Court found that B
the returned candidate could not be connected with any of the interpola-
tions or tampering with the record of the newspaper either and observed:

"The question, however, is whatever may be the reasons for the
manipulation, can the liability for manipulation be fastened on the
first respondent. Merely because there was a change in the names c
in the bills and there was every good reason for the name of the
first respondent, if it had appeared in the original document being
suppressed and there was a Datta Meghe Advertising Account
0056 in the book of Nav Samaj Ltd., it cannot be said that the first
respondent's name had appeared in the original bill and that, that D
was removed and new names were substituted. The matter can11ot
rest merely on sunnises. 17te persons, who had adually accepted the
adve1tisements, were not examined. Though Sarode's version, when
it comes to be against the interest of the respondent No. 2, would
have to be considered with more care a11d caution for disbelieving E
the version that the first responde11t was 11ot co11cemed with the
advertisements some positive evidence was necessary. 011 the other
hand, the positive evidence is that the first respo11dent had not given
these adveltisements a11d had not accepted the responsibility for these
adveltisements. None from Ta/male Ba11dhu, Punjab Wood Craft,
Ranjit E11gineeri11g Works and Niti11 Furniture was called as a wit11ess
F
to show that they had not given the advenisements. If such evidence
were led, then an inference could have legitimately been raised
that since they had not given these advertisements, they must have
been given by the first respondent, because he would be the person
who would be really interested in advancing his own cause. Since, G
in the elections, several perso11s, on their own, may come forward for
givi11g the adve1tiseme11ts, without a11y apparent motive, in the cir-
cumsta11ces, though there is no reason to doubt the evidence that the
names i11 the bills and the receipts issued by Nav Samaj Ltd had
been changed in order to conceal the real advertiser. I find that tltat H
238 SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A evidence by itself is not sufficient to clothe the first respondent with
the responsibility of giving the advertisement."

(Emphasis added)

We find ourselves in complete agreement with the above opinion of •
B the High Court. Relevant witnesses were not examined by the election
petitioners for reasons best known to them. The appellants have offerred
no explanation, much less a satisfactory one, as to why those witnesses who
were relevant and were likely to shed some light were withheld. The
evidence led by the appellants is not only insufficient but also confusing,
C contradictory and often destructive of the case set up by the petitioners.
We are hesitant, in the face of the evidence on the record, to take a view
different than the High Court. On the basis of the above discussion, Issue
5(b)(vi) & (vii), except to the extent we shall refer to certain items lateron,
are held not to have been established by the election petitioners and the
same are decided against them.
D
Issue No. 6 (a), (b) & (c)

In para 2.23 A of the amended election petition, the case projected
by the election petitioners was that the return~d candidate, respondent No.
1, had got released various advertisements through Yugdharma Consult-
E ants and Commercial Services for publication in the newspaper 'Tarun
Bharat'. A Statement, Annexure 18-A, indicating the bills in respect of the
advertisements allegedly released by respondent No. 1 in the said
newspaper was filed and it was alleged that an amount of Rs. 2090.00 had
been received by Tarun Bharat towards the advertisement expenses. It was
F pleaded that though some of the bills had been: drawn in the name of
respondent No. 1 himself and he had been shown to have settled those bills
by making payments thereof, some of the other bills were fictitiously shown
under the names of certain dummy organisations or individuals, though the
payment in respect of each one of those items of advertisements was also
made by respondent No. 1 himself and/or by his election agent, Shri
G Sudhakar Deshmukh, during the period 25.4.1991 to 16.6.1991 and all that
expense was suppressed from the return of election expenses. In Para
2.23/B of the amended petition, it was pleaded that the advertisement
-
details.. whereof were contained in Annexures 18-B and 18-C, had also been
released for publication by respondent No. 1 himself and/or by his election
H agent or by the individuals/organisations and others under the authority of
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 239

Respondent No. 1 and or his election agent, to the daily newspaper A
Hitvada, through Orange City Advertising, Nagpur and Prasad Publicity,
Nagpur respectively and an amount of Rs. 40,000 and 23,520 had been paid
to Hitvada towards the charges of those advertisements through Orange
City Advertising and Prasad Publicity respectively. That even though the
bills for the amount were drawn in the name of certain organisations, and
individuals actually the payments in respect of each one of the bills, had
B
been made by Respondent No. 1 himself and/or his election agent, Shri
Sudhakar Deshmukh, but the returned candidate had failed to include the
said expenditure in the return of his election expenses.

In paragraph 2.23 C of the amended election petition, by reference C
to the statement contained in Annexure 18-D, detailing the advertisements
released through Prasad Publicity to Tarun Bharat, it was pleaded that
those advertisements had been issued by respondent No. 1 for publication
in Tarun Bharat and an amount of Rs. 71,440 had been paid to Tarun
Bharat towards the publication of said advertisements and even though D.
some of the bills were drawn in the name of Respondent No. 1 himself and
he made the payments thereof, the other bills had been fictitiously drawn
in the name of certain organisations or individuals, though in fact the
payment in respect of the same were made either by Respondent No. 1
himself or by his election agent Shri Sudhakar Deshmukh and that an
expenditure of Rs. 71,440 in that behalf was not included by him in the E
return of election expenses.

The returned candidate in his written statement, while admitting the
publication oi some of the advertisements in Tarun Bharat, the expenditure
whereof he had shown in the return of election expenses, denied that he F
had made the payments of Rs. 2090.00 to Tarun Bharat as alleged in
paragraph 2.23 A (Annexure 18 A) or had even asked them to publish the
concerned advertisement. He aslo denied that he had authorised or in-
curred an expenditure to the tune of Rs. 40,000.00 and 23,520.00 as alleged
in para 2.23 B of the amended election petition in respect of the items G
detailed in Annexure 18 B and 18 C. In reply to para 2.23 C, the returned
candidate denied to have incurred any expenditure himself or though his
election agent or with his consent through any other organisation, associa-
tion or individual for the advertisements, as itemised in Annexure 18-D, to
the election petition. He asserted that no expenditure with regard to the
publication of the alleged advertisements had been incurred or authorised H
240 SUPREME COURT REPORTS (1995) SUPP. 2S.C.R.

A by him and he categorically denied to have suppressed any amount from •
the return of his election expense.

We shall first take up for consideration Issue No. 6(c) which con-
cerns the publication of seven advertisements, which according to the
election petitioners were issued by the election agent of Respondent No.
B 1, Shri Sudhakar Deshmukh and published on 18.6.1991 in Lok Mat, Lok
Mat Samachar, Hitavad Nagpur Times, Nagpur Patrika, Nav Bharat and
Tarun Bharat. The said advertisements were "thanks giving" advertise-
ments. The total expenditure incurred in respect of the same as alleged in
the amended election petition was Rs. 39,500. Some of the advertisements
c were alleged to have been directly released to the newspapers by the
election agent of Respondent No. 1 while others were alleged to have been
released·through Prasad Publicity.

According to Mr. Monohar, the learned senior counsel for the
D returned candidate the expenses involved in the publication of all these
advertisements, even if accepted as true and assumed for the sake of
argument to have been incurred or authorised by the election agent of
Respondent No. 1, were not required to be included in the election
expenses, as the said advertisements had been published after the declara-
tion of the result and were not published during the crucial dates men-
E tioned in Section 77 of the Act. According to Dr. Ghatate, on the other
hand, since the advertisements had appeared in various newspapers on
18.6.1991, it would be reasonable to presume that the advertisements had
been issued prior to mid-night between 17th June, 1991 and 18th June, 1991
and therefore the expenditure involved in the publication of these adver-
F tisements would be deemed to be an expenditure incurred in connection
with the election and was required to be included in the return of election
expenditure.

As already noticed, Section 77(1) of the Act mandates that a separate
G and correct account of all the expenditure in connection with the election,
incwred or authorised by the retumed candidate or by his election agent
between the dates on which he had been nominated and the date of declara-
tion of the results thereof, both dates inclusive, shall be maintained. The High
Court, after a detailed discussion of the submissions made by learned
counsel for the parties, which have been reiterated before us also, came to
H the conclusion that all the seven advertisemts for which the total expendi-
G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.) 241

ture of Rs. 39,500 was alleged to have been incurred or authorised by the A
election agent of the returned candidate were "thanks giving" advertise-
ments and were published after the declaration of result and therefore they
did not fall within the prohibitory limits of the time schedule prescribed in
Sub-Section (1) of Section 77 of the Act and were as such not required to
be taken into account while computing the expenses incurred by the first
B
respondent.

We are in agreement with the view of the High Court that the
advertisements in question could not be said to have been issued in
connection with the election, even if that expression is to be given a wide
amplitude. What is it that the Legislature intended to achieve by prescrib- C
ing the inner and the outer limits in Section 77 of the Act ? Obviously, it
was the elimination of money influence during the elections and maintain-
ing of purity of elections. The expenditure incurred after the declaration of
the result of the election can possibly have no nexus with the purity of the
electoral process. The very fact that the advertisements thanked the elec- D
torate for electing Datta Meghe would show that the same could only have
been issued for publication after the declaration of Datta Meghe as the
returned candidate. The expenditure incurred in that connection therefore
cannot be said to be an expenditure 'authorised' or 'incurred' during the
prohibited dates. Indeed, there may be cases where some expenditure can E
be incurred or authorised by a returned candidate in connection with his
election, even after the declaration of the result, but unless that expenditure
can be related to the process of election, authorised or incurred during the
prohibitory limits set out in Section 77(1) of the Act, it is not required to
be included in the return of expenses. The mere fact that the advertise-
ments appeared in the newspapers on the very next day cannot lead to any F
presumption that the expenditure in connection therewith had been in-
curred or authorised by the returned candidate during the prescribed
prohibitory dates in anticipation of his being declared elected. We, agree
a.nd uphold the finding of the High Court that there was no nexus between
the amount spent on thanks giving advertisements with the election after G
the declaration of the result of election and decide issue No. 6(c) against
the election petitioners.

Issue No. 6(a) arises out of the allegations made in Para 2.13 of the
election petition and the items contained in Annexures 17 and 18 to the H
242 SUPREME COURT REPORTS (1995) SUPP. 2 $.C.R.

A petition. It deals with the advertisements allegedly issued by Respondent
No. 1 through M/s. Yug<lharma Consultants and Commercial Services,
Nagpur (for short 'YCCS') to publicise his candidature. A chart containing
27 items of expenditure incurred in respect of various advertisements
published on different dates in different newspapers in connection with the
election of the first respondent were relied upon to urge that the adver-
B tisements had been released through two advertising agencies namely
Ypgdharma Consultants & Commercial Services (YCCS) and Prasad
Publicity. According to the election petitioners Respondent No. 1 incurred
an expenditure of Rs. 2,74,224 on the advertisements released through
YCCS but the said expenditure has been suppressed by the returned
c candidate and if included in the return of election expense, would show
that the returned candidate had committed the corrupt practice as en-
visage~ by Section 123(b) of the Act.

That some of the advertisements had been published in various
D newspapers and had been released through YCCS or Prasad Publicity has
not been disputed by learned counsel for Respondent No. 1 before us. His
argument, however, is that neither Respondent No. 1 had authorised the
publication of those advertisements through YCCS oi Prasad Publicity nor
had Respondent No. 1 or his election agent authorised or incurred the
alleged expenditure of Rs. 2,74,224 in respect of those advertisements. The
E main thrust of the argument of Dr. Ghatate, appearing for the appellants,
on the other hand was that in the release orders which had been issued by
YCCS the name of "Datta Meghe" had been shown as the client and,
therefore, it was futile to urge that respondent No. 1 or .his election agent
had not incurred or authorised the expenditure in connection with those
F advertisements. Reliance was placed on the advertisements which ap-
peared in the issues of Lok Mat and Lok Mat Samachar dated 1.5.1991,
2.5.91, 3.5.91, 5.5.91, 6.5.91 and 21.5.91, being Ex. 83/2 to 83/6, 83/34, 83/35
and 83/91 to argue the expenditure in respect of the same had been
incurred or authorised by respondent No. 1. We, however, find that the
bills in respect of each of the aforesaid advertisements were admittedly
G issued in the names of persons, other than the first respondent. Those had
been issued in the names of Sushila Bai Jadav; Nagpur Nagar Congress
Committee; Yuvak Congress Committee and Supersteel Furniture etc.
. Even in respect of the advertisements which appeared in the issues of
Yugdharma dated 1.5.91, 3.5.91, 8.5.91 and 11.5.91, the bills had admittedly
H been issued in the names of Nagpur Nagar Zila Congress Committee. The
G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.] 243

election petitioners sought to connect Respondent No. 1 with the adver- A
tisements issued through YCCS by pointing out that the name of Shri Datta
Meghe had been shown as the client in those bills and, therefore, he alone
must be presumed to have discharged the liability arising out of those bills
either directly or by placing his funds in the hands of the parties in whose
names the bills had been drawn. Reliance has been placed on the statement
B
of Shri Madhukar Kishti, PW 55 by learned counsel for the appellants in
support of his submissions.

Shri Madhukar Kishti, PW 55 was at the relevant time the Manabring
Director of Yugdharma Cooperative Society, the parent company, which
publishes the daily Yugdharma run by Yugdharma Industrial Cooperative c
society. Yugdharma Workers Newspapers Pvt. Ltd. used to run the daily
Yugdharma prior to it being taken over by the YCCS. It was Yugdharma
Workers Pvt. Ltd. who had constituted YCCS in March 1990 as the sister
concern for routing advertisements to different newspapers. PW55 deposed
that he used to do whatever work was required to be done by the YCCS. D
He went on to state that YCCS released advertisements for publication for
Datta Meghe's candidature for the Parliamentary Elections of 1991 lo
various newspapers and asserted that those advertisements were received
by them from Yuvak Congress Committee etc. Explaining as to how the
name of Datta Meghe had appeared in certain release orders against the
name of the client even though Datta Meghe had not released any of the E
advertisements, the witness stated that since the space had to be booked
in relation to the election of Datta Meghe in various newspapers, the
witness had, on his own mentioned the name of Datta Meghe against the
name of the client for the sake of convenience, though Datta Mcghe had
not entrusted any advertisement to YCCS for publication. The witness F
added that he had not received any orders personally on behalf of YCCS
from any of the clients of YCCS and that the orders used to be received
by Shri Thakre Shri Prakash Deshpande. In his cross-examination, the
witness, however, conceded that the name of Datta Meghe had been
mentioned in certain release orders only because the name of the client G
had not been disclosed by the party and the sapce was required to be
booked in the newspapers in advance owing to the rush of advertisements.
Since, the advertisements were required to be published in connection with
the election of Datta Meghe, he had shown his name against the name of
the client on his own accord. PW55, further, admitted that neither any bill
nor any receipt had been issued by the YCCS in the name of Datta Meghe. H
244 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Thus, we find that PW55 does not advance the case of the election
petitioners at all in so far as the allegations concerning issue No. 6(a) are
concerned. Besides, this witness had no personal knowledge of the nature
of the transactions on the basis of which the release orders came to be
issued. The election petitioners had summoned various release orders and
other record from this witness to connect the name of Datta Maghe but
B curiously enough they were neither exhibited nor got proved. The other
witnesses, who could throw some light on the nature of the transaction, like
Shri Thakre and Shri Prakash Deshpande, though summoned, were not
examined on this aspect for reasons best known to them. The submission
of learned counsel for the appellants that the explanation given by PW55
c regarding the reason for the name of Datta Meghe appearing in some of
the release orders is not satisfactory cannot help the appellants because
there is no other evidence or explanation offered by the election petitioner.
Even otherwise the explanation appears to be quite plausible. It was for ,/
the election petitioners to adduce better and cogent evidence, direct or
circumstantial, to show that the returned candidate had incurred or
D
authorised either himself or through his election agent the expenditure in
respect of the advertisements issued by YCCS, as alleged in the petition,
but no such evidence was produced and the allegation has remained
unsubstantiated.

E Shri Prakash Despande, PWll, the Deputy General Manager of
Hitvada did prove the signatures of PW55 on release order Ex. 586 dated
7.5.1991 but was silent about any transaction between YCCS and the first
respondent. Same position exists in respect of other advertisements also.
We need not, therefore, detain ourselves to refer to all other advertise-
F ments, their release orders, bills or receipts because from the evidence of
PW55 it stands established that no payment for any of the advertisements
issued by YCCS came from the returned candidate, Respondent No. 1
deposed that the advertisements had been issued by different parties,
associations and individuals and those parties had made the necessary
payments. The petitioners have led no evidence to show that the advertise-
G ments which were issued under t]Je names of different parties, organisa-
tions and individuals like Nagpur Nagar Congress Committee, Indira
· Brigade, Youth Congress, Pharitiva Sher Sangathana, Vidharbha Profes-
sors Club etc. were in fact not issued by those parties, organisations,
institutions or individuals, by examining any witness from such bodies and,
H therefore, the argument that the advertisements, though shown to have
G.K. BAP AT v. D.R. MEG HE [DR. At'l'AND, J.] 245

been issued by different parties and organisations etc., were in fact issued A
at the instance of the first respondent or that it was his money which they
had paid to discharge the liabilities in respect of these advertisements, has

- no basis let alone any foundation. The election petitioners have totally
failed to bring any material on the record to connect Respondent No. 1
either with the publication of or expenditure incurred in respect of the B
various advertisements as alleged in the petition. Even though the names
of the parties, organisations, associations, institutions and individuals etc.
had been mentioned in the advertisements as the sponsors of the adver-
tisements, the election petitioners did not examine any one of them to elicit
from them that they had not issued or caused to be issued those advertise-
ments or that they had not incurred any expense in connection therewith. c
We are not impressed with the submission of the learned counsel for the
petitioners that since identical advertisements came to be issued simul-
taneously in different newspapers on the same date or on different dates,
an inference should be raised that it was done only at the instance of the
first respondent, because he alone was the beneficiary irrespective of D
different names of sponsors. The argument has neither logic nor any basis.
The election petitioners led no evidence to even create a doubt about the
identity of the sponsors and merely because identical advertisements ap-
peared on the same date, it is not possible to hold that the sponsors were
fictitious persons or that the actual sponsor was the returned candidate E
himself. It is not unknown that during the elections, many sympathisers as
well as 'others' come forward to support the candidature of a particular
candidate and sponsor and pay for the advertisements which they get
published to further the prospects of that candidate's election. Moreover,
apart from the returned candidate, the party which sponsors him as its
F
candidate is equally interested in the furtherance of the prospects of his
election and may approach different organisations, associations or in-
dividuals to sponsor and publish the advertisements at their expense in
favour of the candidate and even to suggest to them that the same could
be done by availing of the services of YCCS which was engaged in the
propaganda cannot be ruled out. The burden of proving the issue was G
heavy on the election petitioners but they have miserably failed to discharge
the burden. No evidence, direct or circumstantial has been led even to
show that it was the money of the returned candidate which had been used
by the party, other associations, institutions or persons, for the publication
of the advertisements in various newspapers. The evidence on the record H
246 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A does not lead to any inference that it was the first respondent's money
which was used for publication of advertisements and in the absence of
such an evidence, no responsibility can be fastened on the first respondent
in respect of the expenditure incurred in connection with those advertise-
ments. The learned trial Judge after a detailed discussion of various
exhibits and taking into consideration the law on the subject concluded
B that:

"Datta Meghe's ~onnection with the advertisements released by
c YCCS has not been established, and there is no other evidence to
show that Datta Meghe either incurred or authorised the expenses
for the advertisements released through YCCS, and all the adver-
tisements, which have been issued through the agency of YCCs
will have to be left out, while considering the expenses incurred or
authorised by the first respondent Datta Meghe."
D
We are in complete agreement with the above conclusions and
nothing has been pointed out before us to persuade us to take a different
view. Issue No. 6(a) is, therefore, decided against the election petitioners.

E ISSUE NO. 6(b)
According to the allegations contained in para 2.23-A of the
amended election petition, the returned candidate had, besides releasing
advertisements through YCCS in various newspapers also utilised the
services of Orange City Advertising, Nagpur and Prasad Publicity, Nagpur
F for publication of advertisements in connection with the furtherance of his
elections in various newspapers. The details of the advertisements allegedly
released by the returned candidate to the newspaper daily Hitvada through
Orange City Advertising, Nagpur and Prasad Publicity Nagpur were
pro·.· · ed in Annexure 18B and C attached to the election petition. The
total amount alleged to have been spent by the returned candidate in that
G behalf was stated to be Rs. 40,000 and Rs. 23,520. In para 2.23-B the
election petitioners averred that although, it appears from the statements
at Annex. 18B and 18C that the bills were issued in the name of certain
organisations, the payments in respect of each one of the bills had in fact
been made by respondent No. 1 himself and/or his election agent, Shri
H Sudhakar Deshmukh during the period from 25.4.91 to 16.6.91. It was
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 247

alleged that the orders for each of the ite,ms of advenisements appearing in A
the statements at Anex. JBB and 18C were also placed by respondem No. 1
himself and/or by his election agent Shri Sudhakar Deshmukh or by the
organisations and individuals as indicated in the statements at the instance
and under the authority of respondent No. 1 or his election agent. Besides
the election petitioners alleged in para 2.23-C that some more advertise- B
ments had been released by respondent No. 1 during 25.4.91 to 16.6.91
through Prasad Publicity in Tanm Bharat and an expenditure of Rs. 71440
had been incurred therefore which was also not disclosed by the returned
candidate in the return of his expense.

In the written statement, respondent No. 1 categorically denied that C
the advertisements detailed in Annexures 18B and 18C had been published
or issued by him and asserted that no expenditure in that behalf had been
incurred or authorised by him or by his election agent. It was denied that
he had authorised and/or incurred an expenditure of Rs. 40,000 and Rs.
23,520 as itemised in Annexure 18B and 18C. Similarly, it was asserted by
the returned candidate that he had not placed orders for any of the D
advertisements detailed in Annexure 18D either himself or through his
election agent nor had he authorised any of the organisations or individuals
mentioned in Annexure 18D to get published the advertisements. It was
maintained that no expenditure whatsoever with regard to the advertise-
ments itemised in Annexure 18D were incurred or authorised by the E
returned candidate or by his election agent and therefore there was no
question of disclosing the same in the return of election expenses. With
regard to the advertisements allegedly released through Orange City Ad-
vertising, the learned trial Judge has noticed :

'With regard to Issue No. 6(b), the learned counsel for the F
petitioners stated that he would not be in a position to urge that
the expenditure on the advertisements introduced by Orange City
Advertising should be included in the expenditure incurred by the
first respoJtdent. I have already found that no other item of expen-
diture incurred through Prasad Publicity, except what has been
included in issue no. 5(b)(vi) & (vii) can be included, and issue G
No. 6(b) is answered accordingly."

Learned counsel for the appellants has not disputed the above
finding before us and as such we have no reason to take a view different
than the one taken by the High Court. H
248 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A We have dealt with in the earlier part of the judgment, the allegations
relating to the expenditure incurred by the returned candidate through
Prasad Publicity, while dealing with issues 5(b)(vi) and (vii). We shall now
advert to the findings with regard to certain amounts which have been
found to have been suppressed by the returned candidate from the return
of election expenses.
B
The election petitioners relied upon the testimony of Shri Anant
Shastri. PW50, who used to carry on the work of advertising agency in the
name of Prasad Publicity. The witness deposed that he knew respondent
No. 1 and that he had received advertisements for publication in the
c newspapers from several institutions with which respondent No.1 was
connected. Those institutions included Radhika Bai Meghe Memorial
Trust; Nagar Yuvak Shikshan Sanstha; Polytechnic; Engineering College;
Dental College; Pharmacy and medical College, being run by those institu-
tions. That he had been releasing the advertisements on behalf of those
D institutions since 1984. He went on to add that payments had been received
for the publication of the advertisements from various organisations as also
from Nagpur Shahr Zila Congress Committee and entered in a ledger
which, however, had been destroyed by him in the last week of March 1992.
He stated that the account ledger had been destroyed by him before he
had received the summons to appear in the court as a witness in the
E election petition. According to PW50 he did not himself write the account
books and that the same were written by his accountant Shri Dhale. After
referring to the counter foil book, PW50 deposed that ledger folio No. 226
pertained to the account of Yashwantrao Chauhan Social Forum and that
counterfoil No. 003363 from the same counterfoil book also bore ledger
F folio No. 226 and was issued in the name of Datta Meghe Mitra Mandal.
The word "staff' which had been written below "Datta Meghe Mitra Man-
dal" in the copy had, however, been scored out later on. The witness went
on to say that counter foil No. 003364 also bore ledger folio No. 226 and
and was issued in the name of Nagpur Zila Congress Committee. Counter- 'I
G foil No. 003365 which also bore ledger folio No. 226 was issued in the name
of Narayan Ahuja while counterfoil No. 003366 with the same ledger folio
No. was issued in the name of Rajiv Sena. The witness explained as to how
the same ledger folio No. (226) appeared against various counterfoils and
stated that various organisations which had come forward to support the
candidature of Datta Meghe and were releasing advertisements in his
H favour had been clubbed together under one and the same ledger folio No.
G.K BAP AT v. D.R. MEGHE [DR. ANAND, J.) 249

226. He denied the suggestion that the account against ledger folio No. 226 A
was of Datta Meghe and not of the organisations clubbed together.

The High Court after considering the evidence of Anant Shastri
PW50 in great details opined that the witness was enjoying the patronage
of the returned candidate and of various institutions with which the
returned candidate was connected and that the witness had destroyed the
B
ledger, a material documents, "probably because those documents, if
retained, would not have been favourable to the first respondent". The
High Court did not accept the explanation offered by Anant Shastri PW50
regarding the time and reason for the destruction of the ledger. The High
Court repelled the agrument of learned counsel for the returned candidate c
that the release order of Prasad Publicity Ex.225 relating to advertisement
Ex. 88/1 was suspicious because the date 28.4.91 did not appear on the
carbon copy Ex.712, which had been produced by Anant Shastri PW50
presumably because the High Court felt that the witness was favouring the
returned candidate. Similarly, the High Court did not accept tp.e criticism D
made by learned counsel for the respondent in respect of release order No.
5031 dated 28.4.91 in which the name of Datta Meghe had appeared in the
carbon copy, as the client, though there was no mention of the date 28.4.91
on it. The High Court noticed that though below the name of Datta Meghe,
the word "Karyalaya" had been initially mentioned in Ex. 711, the manner
in which that word had been written would show that the word "Karyalaya" E
might not have been written on 28.4.91 but on some other date. According
to Shri Anant Shastri PW50 the advertisement dated 28.4.91 had been given
to him by Shri Vasant Parshionikar on behalf of Nagpur Nagar Zila
Congress and it was for publication of the programmes arranged by Nagpur
Nagar Zila Congress Committee. That he had given identical advertise-
F
ments to four newspapers including Nagpur Patrika and Lokmat. Accord-
ing to the witness, the word "Karyalaya" had been omitted from Ex. 325
inadvertently as he forgot to mention it. The witness, however, stated that
Datta Meghe was not his client for the said advertisement and the words
'Datta Meghe" were used on as a caption and the actual bill was issued in
the name of the real client, Nagpur Nagar Zila Congress Comittee. G

According to Shri Padmakar Paunikar PW3, bill Ex. 156 was issued
to the party on 29.4.91 itself. It was signed by Bhojraj PW12 and the receipt
Ex. 157 was also signed by Bhojraj PW 12 and the receipt Ex. 157 was also
signed by Bhojraj PW12. He admitted that both the bills Ex.156 and Ex. H
250 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A 227 were prepared on two different type-writers and both bore the signa-
tures of PW12. He conceded that the three bills dated 29.4.91 were issued
on three different formats. Ex. 156 was issued on the format of Nar kesari
Prakashan and disclosed Datta Meghe as the client and that udvertisement
had been released by Prasad Publicity; Ex. 227 was on the format of Tarun
Bharat and showed Yashwantrao Chauhan Forum as the party concerned;
B and Ex. 603 was again on the format of Tarun Bharat and showed Datta
Meghe as the name of the client. According to PW12, the name of
Yashwantrao Chauhan Forum was shown as client in Ex. 227 because they
had asked for the bill in the name of Yashwantrao Forum when bill Ex.
227 was issued. The witness admitted that all the three bills were identical.
C The High Court dealt with this issue relating to the advertisement Ex. 88/1
which had appeared in Tarun Bharat for a sum of Rs. 1320 and observed:

"If one were to go only by the different formats on which the bills
were issued and different names which appeared on the bills, it
D would appear that there was a good deal of confusion and on the
basis of the bills themselves, no inference could be raised as to
who was the real client. If regard is to be had to the fact that the
original release orders mentioned the name of Datta Meghe as
client, there was no reason for Tarun Bharat to depart from normal
practice of issuing the bills in the name of Prasad Publicity by
E showing Datta Meghe as the client, and that seems to have been
done with the bill (Ex. 156) issued purportedly on 29.4.91 on the
format of Narkeshri Prakashan. By that time, the forms of
Narkesari Prakashan were being used. It would be only when a bill
with a different name would be required that the change in the
F name would appear, and the only person, who was interested in
having a bill in the name different from the one used in the release
order, would be Prasad Publicity which was represented by Anant
Shastri. To the extent that Datta Meghe's name appeared in the
original release -order, there is no demur even by Anant Shastri
who was a party to the transaction. If his version that the name of
G Datta Meghe was mentioned merely as a caption was true, there
· was no difficulty for him to allow the name of Datta Meghe to
continue in the original bills which were issued. Coupled with the
position that all the original documents issued by Tarun Bharat
are said to have been handed over by Anant Shastri to a person
H about whose identity he was not clear, it is difficult to accept the
G.K. BAP AT v. D.R. MEG HE [DR. ANAND, J.) 251

position that the name of Datta Meghe in the release orders issued A
to Tarun Bharat appeared merely .as a caption."

The High Court then opined :

"In view of the above factum, there can be no doubt, though there
was a deliberate attempt to disguise the transaction, that the B
amount of Rs. 1320 under the bill Ex. 156 for the advertisement
published in Tarun Bharat dated 21.4.91 (Ex. 88/1) on the basis of
which the release order (Ex. 225), was paid by the first respondent
under receipt Ex. 157, on 29.4.91."

After hearing learned counsel for the returned candidate at length
c
and going through the record, in our opinion the finding recorded by the
High Court is quite sound. The explanation for appearance of the name of
Datta Meghe in the release orders does not appeal to common sense.
Anant Shastri did not handover the documents to a 'stranger' whose
identity he could not recollect and admittedly he did not handover the D
same to Shri Parshoinikar. Thus, in the facts and circumstances on the
record, the High Court was right in concluding that the expense for bill
No. 156 in respect of advertisement Ex. 88/1 had been authorised or
incurred by the returned candidate. Even the challenge to the said finding
by learned counsel for the returned candidate before us was only half- E
hearted. We thus agree with the finding of the High Court and hold that
the returned candidate did incur an expenditure of Rs. 1320 for Bill Ex.
156 in respect of the advertisement published in Tarun Bharat Ex. 88/1 but
failed to include the same in the return of his election expenses. The High
Court rightly included that amount to the amount disclosed in the return F
of election expenditure.

Coming now to the advertisement which appeared in the Election
Special Issue of Tarun Bharat dated 21.5.91 and for which an expenditure
of Rs. 7000 was alleged to have been incurred by the returned candidate, G
we find that the plea with regard to this advertisement was not raised by
the appellants in the original election petition and was not even included
in the first amended election petition but was introduced for the first time
by an amendment dated 18.12.91. In the verification to the election petition,
the contents· of the relevant paragraphs were verified as 'partly based on
personal knowledge and partly on information received from ........ Tarun H
252 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Bharat ....... '. In the affidavit filed in support of the allegations of corrupt
practice, again the contents of para 2.23 were verified as based partly on
personal knowledge and partly on information received froni the official
record of Tarun Bharat. The election petitioner, however, did not in his
deposition disclose the basis of his 'personal knowlege' for making the
B allegation. In the pleadings a wide latitude was left by the election
petitioners to lead evidence on any of the various 'possibilities' detailed in
the election petition. The 'vagueness' of the pleadings even after amend-
ment shows that the election petitioners were out on a wild goose chase
and trying to fish for evidence so as to be able to fasten some liability on
the returned candidate or his election agent at least in some case. PW39
c Laxman Trimbakrao Joshi, the Chief Editor of Tanm Bharat was, examined
by the election petitioners in support of the allegations made in the petition
regarding publication of the advertisement in Election Special Issue of
Tarun Bharat. He deposed that Tarun Bharat had decided to issue an
Election Special Issue after the elections were announced and that he had
D personally contacted Datta Meghe about 8 to 10 days before the publica-
tion of the issue on telephone and had a talk with Datta Meghe personally
and had requested him for the issuance of an advertisement, as he was a
contesting candidate. Datta Meghe, according to the witness, had told him
that he would think about the matter and admittedly, thereafter, did not get
E in touch with him. The witness went on to state that an advertisement in
support of respondent No.1 was published in Tarun Bharat dated 21.5.91.
It had been received through Prasad Advertising Agency (Prasad Publicity)
who had also supplied the material for publication. The witness, however,
did not know whether the bill for the advertisement had been prepared in
the name of Prasad Publicity or someone else nor did he know nor as to
F who had paid the bill. He did not even know as to who had instructed
Prasad Publicity to give the advertisement or who made the payment for
the same to the Prasad Publicity. This advertisement Ex. 221 is the subject
matter of three bills Ex. 192 bearing No. 4167 (shown as Duplicate); Ex.
234 No. 4178 and Ex. 605, No. 4167 (written after scoring out 4178). All
G the bills are dated 21.5.91. Where as in Ex. 192, which was on the format
of Narkeshari Prakashan the bill was addressed to Prasad Publicity, show-
ing Datta Meghe's name as the party releasing the advertisement, Ex. 234
was on the format of Tarun Bharat and again addressed to Prasad Publicity
but showing NSUI as the client while Ex. 605 was issued on the format of
H Tarun Bharat and was. addressed to Prasad Publicity and showed Datta
G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.) 253

Meghe as the client. The High Court after considering the evidence of A
PW3, Paunikar (who had deposed that Prasad Publicity had not placed the
order); PW39 Laxman Joshi, (who had deposed that the advertisement was
received from Prasad Publicity and that the bill had been settled by Prnsad
Publicity); PW50 Anant Shastri and PW12 Bhojraj, held that the advertise-
ment had been issued by respondent No. 1 and that Anant Shastri PW50
B
had manipulated the bills and the record to help the returned candidate.

We have carefully perused paragraphs 154 to 157 of the judgment of
the learned trial Judge dealing with the question of the expenditure of Rs.
7000 in connection with the advertisement Ex. 221 in the Election Special
Issue and the evidence on record. Keeping in view the difference in the C
three bills relating to the same advertisement and the use of these different
formats by Tarun Bharat, we find it difficult to agree with the High Court
that the election petitioners have established that respondent No. 1 had
incurred the expenditure of Rs. 7000 in respect of publication of Ex. 221.
The findings appear to be rather laboured ones and if Tarun Bharat D
advertising office was not "very careful about giving the particulars to the
bills which they issued and that the bills were not issued from bound books"
as observed by the High Court, no adverse inference could be drawn
against the returned candidate. Indeed neither Shri Paunikar PW3 nor
Bhojraj PW12 had any talk with Datta Meghe in respect of any of the
advertisement and from the testimony of PW39 Laxman Joshi, it is not E
possible to hold that pursuant to the talk he had with the returned can-
didate, the advertisement in question had been published by the returned
candidate himself and not by or on behalf of NSUI in whose favour the bill
had been drawn. As already noticed neither in the verification of the
petition nor in the affidavit, PW39 had been disclosed as the source of F
information. The appellants have not explained the basis for making the
said allegations. The findings of the High Court in our opinion are based
:+
on surmises and conjectures and we agree with Mr. Manohar, learned
senior counsel for the returned candidate that in the face of the vague
pleadings and inconclusive evidence led by the election petitioner coupled G
with the discrepent evidence of PW39, who admittedly was not shown as
the source of information for the said allegation, it is not possible to hold
that the advertisement in question, Ex. 221, had been released by and paid
for by Datta Meghe himself. It is also relevant in this connection to note
that no release order had been got produced by the election petitioners in
respect of this advertisement which could disclose who the real client was. H
254 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A We, are therefore, of the opinion that the material on the record was not
sufficient to fasten the liability for the publication of the advertisement in
the Election Special Issue of Tarun Bharat Ex. 221 for Rs. 7000 on the
returned candidate. We, accordingly, set aside the finding of the Bigh
Court and hold that Rs. 7000 was not spent by the returned candidate for
the publication of Ex. 221.
B
The High Court also found that an amount of Rs. 9900 in respect of
Ex. 258 had been suppressed by the returned candidate from the return of
his election expenses. The receipt Ex. 258 shows that an amount of Rs.
9900 was paid on 20.5.91 by Sharad Pawar Mitra Manda/ for. the publ,ica-
c tions of the advertisement. A consolidated bill had been issued in the name
of Sharad Pawar Mitra Manda/ as the publisher. According to PW4, Ashok
Jain, the advertisements which appeared in Lokmat and Lokmat Samachar
Ex. 83/18 and 83/19 dated 12.5.91 against bill No. 257 had been given for
publication by Narayan Ahuja and Sharad Pawar Mitra Manda/. The wit-
D ness admitted that in the bill, the name of Narayan Ahuja was not men-
tioned and that the payment for the bill had been made by Sharad Pawar
Mitra Manda/. From a careful consideration of the observations of the High
Court in paras 183 to 187, the pleadings and the evidence in that behalf,
we find that recourse has been taken by the learned trial Judge to surmises (f
i'
and conjectures to hold that the expenditure had in fact been incurred by \'

E respondent No. 1 in respect of the said advertisement. There is not even
an iota of evidence on the record to show that the first respondent had
incurred the expenditure of Rs. 9100 as alleged by the election petitioners
in their evidence, though not specifically pleaded in their election petition
both original and amended. The election petitioners had learnt about the
F role being played by Narayan Ahuja even before they filed the election
petition. It was for them to have examined Narayar Ahuja to elicit from
him as to whose funds he was utilising for making payments for publication
of various advertisements. The petitioners chose not to examine him for
reasons best known to them. We do not think that there was any obligation
on the part of the returned ca~didate to have examined Narayan Ahuja
G and lead negative evidence to the effect that no funds had been provided
to him by the returned candidate and that the payments had been made
by the parties who were responsible for the pblication of various advertise-
ments through him. The observations of the High Court that Narayan
Ahuja was a person "who had no financial or political background for
H representing organisations", is clearly based on conjectures because the ·
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.j 255

evidence on the record does show that Narayan Ahuja had been working A
for the political parties and without there being any pleading or evidence
on the record, it was to say the least rather unfair for the High Court to
conclude that Narayan Ahuja had "neither any financial status nor any
political background". We do not find it possible to agree with the High
Court that the returned candidate had suppressed the amount of Rs. 9100
B
in respect of Ex. 221 (receipt Ex. 258) and accordingly set aside the said
finding of the High Court, which is not based on any satisfactory material
on the record.

The finding of the High Court in respect of some of the items as
detailed in Annexures 8 to 15, involving an expenditure of Rs. 22900, in C
our opinion are equally fallacious and conjectural. The same are not based
even on correct appreciation of evidence. Recourse has been taken to
surmises and imagination to return these findings. We find it difficult to
subscribe to the view of the learned trial Judge which is not supported by
any material on the record. The positive evidence led by the election D
petitioners is that the returned candidate had not himself or through his
election agent given any of the advertisements for publication and had not
accepted any responsibility for making payment in respect of any of those
advertisement, even though the advertisement were issued for the fur-
therance of his election prospects. There is no direct or circumstantial E
evidence led by the election petitioners to show that the amount paid iri
the name of Sharad Pawar Mitra Mandal had been placed at the disposal
of the said Mandal by the returned candidate or his election agent. There
is no .evidence even to suggest that respondent No.1 had undertaken the
responsibility of making the payments in connection with the expenses
incurred by Sharad Pawar Mitra Mandal. The election petitioners, for
F
reasons best known to them, chose not to examine any \tj.tness from
Talmale Bandhu, Punjab Woodcraft, Ranjit Engineering Works, Nitin
Furniture, Sharad Pawan Mitra Mandal, D.M.M. Mandal and various other
organisations under whose names either the advertisements had been
published or who had according to the evidence made payments for thos~ G
advertisements as per the bills and receipts on the record. If any evidence
was led to the effect that none of the persons, parties or organisations had
in fact issued the advertisements or they or anyone of them had denied the
making of any payment, it may have been possible to argue that those
advertisements may have been got published by the first respondent himself H
256 SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A or through his election agent or through some other persons. with his
consent or with the consent of his election agent and in that event the onus
may have shifted to the returned candidate to explain the source of the
expenditure and in the absence of any satisfactory explanation it may have
been possible to draw an infe~ence that it was the money of the returned
B candidate. Since no such evidence was led no proof was submitted in
support of the alleged charge, the question of shifting of onus on the
returned candidate to prove his non-liability did not arise. The High Court,
therefore, was not justified in saddling the returned candidate with any
expenses other than Rs. 1320 in addition to the expenses disclosed by him -
in the return of his election expense.
c
Thus, on the settled principles extracted in an earlier part of this
judgment, we find that the election petitioners have miserably failed to
discharge the onus of proving various charges levelled by them against the
returned candidate regarding the commission of corrupt practice under
D Section 123(6) of the Act. The High Court was, justified in holding that
the returned candidate had not committed any corrupt practice as en-
visaged by Sec;tion 123(6) of the Act and in dismissing the election petition.
However, the High Court fell in error in holding that certain items of
expenditure tOtalling Rs. 58,2220 had been suppressed by the returned
candidate and deserved to be included in the return of his election expense.
E Except to the extent of Rs. 1320, no other liability can be fastened on the
returned candidate in respect of the other items.of the alleged expenditure
on publication of advertisements etc. The election appeal consequently
fails and is dismissed with costs. The cross- objections to the extent
indicated above succeed and are allowed. The costs are assessed at Rs.
F 10000.

Before parting with the judgment we would, however, like to express
our disapproval of the maimer in which amendments of the election·
petition were allowed on occasions more than once and how evidence was
G allowed to be brought on the record against the pleadings and settled legal
principles.

Section 86(5) of the Act deals with the amendment of an Election
Petition. It lays down that the High Cqurt may upon such terms as to costs
or otherwise, as it deems fit, allow amendment in respect of particulars but
H there is a complete prohibition against any amendment being allowed
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.] 257

which may have the effect of introducting either material facts not already A
pleaded or of introducing particulars of a corrupt practice not previously
alleged in the petition. The first part of Section 86(5) of the Act, therefore,
is an enabling provision while the second part creates a positive bar. Of
course, the power of amendment given in the Code of Civil Procedure can
be invoked by the High Court because Section 86 of the Act itself makes B
the procedure applicable, as nearly as may be, to the trial of election
petition, but it must not be ignored that some of the Rules framed under
the Act itself over-ride certain provisions of the Civil Procedure Code and
thus, the general power of amendment drawn from the code. of Civil
Procedure must be construed in. the light of the provisions of the election
law and applied with such restraints as are inherent in an election petiton. C
It appears to us that the High Court did not properly consider the
provisions of the election law while repeatedly allowing amendments of the
election petition in the present case. The High Court allowed an applica-
tion Ex. 27 filed by the election petitioner for permission to amend the
petition on 28.11.91. Yet another application for amendment of the election D
petition, Ex.44 was again allowed by the High Court on 18.12.91. The
petitioner filed still another application, Ex.47A, to again amend the elec-
tion petition and the High Court allowed the same on 18.1.92. Even after
the pleadings were completed and the issues framed on 21st of January
1992 and a part of evidence had been led by the parties, the High Court E
allowed one more application filed by the election petitioner No.1, Ex. 701,
and permitted an amendment of the election petition, apparently to bring
the evidence in conformity with the pleadings. In the first place, the High
Court ought not to have allowed evidence. to be led by the election
petitioners which was beyond the pleadings of the parties for no amount
of evidence can cure a defect in the pleadings but it was all the more
F
improper for the trial court to have allowed the pleadings to be amended
so as to be brought in conformity with the evidence already led in the case.
To say the least, it was not a desirable or a proper course to be adopted
in an election petition where, as pointed out by this Court in Jagannath v.
Jaswant Singh, [1954] SCR 892, the statutory requirements of the law of G
election must be strictly observed. Of course, since evidence was allowed
to be led, though beyond the pleadings without any objections from the
opposite side, the court could have evaluated and analysed the same to
determine the worth of that evidence, which in the facts and circumstances
of the case came under a cloud but to allow the amendment of the H
258 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A pleadings with a view to confer a 'legal status' on the evidence already led
was to say the least improper. The reasons given by the learned trial judge
to allow the election petition to be amended repeatedly ignores the saactity
which is attached to the pleadings and the affidavit filed in support of an
election petition, which under law is required to be filed within a
prescribed time and those reasons do not impress us. We need say no more
B on this aspect of the case.

B.K.M. Ap'peal dismissed.

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