Baburao Bagaji Karemore & Ors Vs. Govind & Ors [1973] INSC 219 (27 November 1973)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN GOSWAMI, P.K.
CITATION: 1974 AIR 405 1974 SCR (2) 429 1974 SCC (3) 719
CITATOR INFO :
E 1975 SC 290 (3) MV 1975 SC1417 (35) RF 1976 SC1187 (31) F 1976 SC1599 (32)
ACT:
Representation of the People Act, 1951--S. 100 read with sub-secs. 1, 2, 3, 3A, 4,5 and 6 of s. 123-- Corrupt practice--Scope of.
HEADNOTE:
The first respondent was declared elected to the Maharashtra Legislative Assembly getting the highest number of votes.
His election was challenged by 4 electors on various grounds of corrupt practices under s. 100 read with sub-sections 1, 2, 3, 3A, 4, 5, and 6 of s. 123 and for contravention of the provisions of s. 127-A of the Representation of the People Act, 1951.
It was alleged in the petition that the first respondent did not keep separate and correct account of all expenditure incurred and authorised in connection with his election, nor were his accounts kept in accordance with s. 77 of the Act read with Rule 86 of the Conduct of Election Rules. He did not obtain vouchers for every item of expenditure incurred etc., as prescribed by s. 77 of the Rules framed there under.
He suppressed many items of expenditure which were in excess of the authorised amount of Rs. 12,000/-. Secondly, it was alleged by the petitioners that in an election meeting held on February 18, 1972, the agent who was an active supporter of the first respondent, made a false statement of fact in relation to the personal character and conduct of respondent no. 2, as well as petitioner No. 1. It was alleged that he made a statement in his speech in that meeting that respondent no. 2 secured the withdrawal of the petitioner no. 1 by giving him a bribe of Rs. 60,000.
According to the petitioners, the first respondent got the said statement published in a weekly dated 23rd February 1972, and the statement was published with the consent of the first respondent as his election agent. Further, it was alleged that he printed election pamphlets and posters in which he appealed to the voters on the grounds of caste and community. The petitioners gave instances to show how the propaganda was carried on the by issuing pamphlets containing false statement of facts and which the first respondent or its maker either believed to be false or did not believe to be true.
The first respondent denied that he made any statement in relation to the personal character or conduct of the second respondent, nor did his election agent or workers with his consent, make any such statements nor could it be said that any of the statements were reasonably calculated to prejudice the prospect of his opponent. It was also averred that the expenditure shown by him in the return of his expenses was correct and the return was in accordance with law and the rules framed there under ; that there was no contravention of s. 77 of the Act read with rule 86 of the Rules and denied that he incurred expenditure much more than Rs. 12,000/as alleged.
Although the third respondent filed his written statement, practically admitting all the allegations in the petitions against the 1st respondent, subsequently he filed an application for permission to withdraw the power of his counsel one Mr. Desh mukh through whom he filed the written statement. Deshmukh was permitted to withdraw hid written statement. Thereafter, the third respondent did not take any apart proceedings. Respondent No. 4 neither appeared nor filed his written statement. Later, the trial proceeded ex-parte against. both response Nos. 3 and 4.
Respondent No. 2 though represented, did not file his written statement. On these pleadings, as many as 31 issues were framed by the High Court of which issue no. 1 related to a preliminary objection that the petition was liable to be rejected for non-joinder of all the persons who had filed their nomination papers for the election. The High Court decided the 1st issue against the first respondent, but all other issues were held not proved by the petitioners and therefore, the petition was dismissed with costs. Before this Court, the appellants restricted their case to the three heads if corrupt practices viz.(1) under s.
A602Sup.CI/74 430 123(4) of the Act, for Publication of false statement of facts in relation to personal character or conduct of the candidate or in relation to the candidature or its with- drawal; (2) under S. 123(6) for incurring or authorising expenditure in contravention of S. 77 of the Act and (3) under S. 123(3) for making an appeal on the ground of caste or community by printing, publishing and distributing pamphlets Ex. 42 and 43.
Dismissing the appeal,
HELD : (1) Taking the last head under issues 19 and 21 which relate to two pamphlets, Ex. 42 and 43 in which a communal appeal had been made to the electors to vote for the 1st respondent there is no doubt that Ex. 42 and 43 made a communal appeal to Kunbi and Teli voters to vote for respondent no. 1. If these pamphlets are proved to have been printed, published and distributed by the 1st respondent, then he will be guilty of corrupt Practice within the meaning of sub.S. (3) of S. 123 of the Act. The High Court- found that they were neither printed, published or distributed by or on behalf of the first respondent nor by his election agent or by his workers with his consent or the consent of his election agent. On a perusal of the evidence as a whole and having considered the contentions advanced by both the parties, it cannot be said that the fin of the learned trial judge that Exts. 42 and 43 were not Printed. or published or distributed before the date of polling, is vitiated and on evidence, this finding is clearly sustainable.
(ii) As regards the second head which relates to corrupt practice under Sub-s. (6) of Sec. 123 of the Act for incurring or authorising expenditure in contravention of S.77, the learned trial judge was of the view that it had not been shown how there was non-compliance of S. 77 read with S. 86 and also no arguments were advanced on this point.
Every item of expenditure that has been shown in the return has been supported by the original voucher which was not challenged. Nor anything had been brought to the notice of the Court to show that there had been any averment in the pleading that the accounts filed were not a true copy of the accounts maintained. Therefore, the requirements of ss.. 77
(iii) As regards addition of Rs. 2992-95 to the amount of Rs. 7,499-11 found by the High Court, it can be pointed out that there is no justification in adding this amount to the total because Exts. 86 ad 87 were given on behalf of Jan Singh and Congress parties, whose names also had been written on those chits by the persons signing them at the petrol pump. Further, in respect of the expenditure incurred in illuminating the truck and hiring the tractor, the evidence so adduced by the witnesses were rightly disbelieved by the trial court. The evidence in connection with hiring of cycles was also not reliable. Similarly the trial Court had rightly rejected the evidence in connection with Kirti Hotel expenses of Rs 1,959/-. As regards the amounts paid to Laxmi Litho works for printing etc. the High Court was right when it said that Ex. 62 was a consolidated receipt of Rs. 765/- and this amount had been included in the return of election expenses. Similarly, the High Court had rightly rejected the allegation of certain petrol expenses incurred by the 1st respondent. A sum of Rs. 1,938-50 however, is not accounted for and in absence of satisfactory explanation, this amount has to be taken as election expenses and must, therefore, be added.
(iv) Even if the contention of the petitioner is accepted that Rs. 1,939/- incurred by Bhan dalal for which no account was given, Rs. 100/- paid towards the salary of Hari, the driver, Rs. 695/- in respect of Sakhare Rs. 192-40 or say Rs. 192/in respect of petrol, Rs. 600/- regarding hire charges of a taxi, hired by the father-in-law of the 1st respondent and Rs. 129/- incurred for Shende, respondent no.
1, the several items will amount to Rs. 3,655/-. If these amounts are added to the election expenses already shown, it would come to Rs. 11,154. Even on this seeking, the election expenses are well within the limit of Rs. 12.000/- and consequently the appellant's charge against the 1st respondent for committing corrupt practice under Sub-s. (6) of s. 123 of the Act is not established.
(v) As regards the statement made by a protagonist of a separate Vidarbha with the consent of the 1st respondent that the second respondent paid a bribe of Rs. 60,000/- to the first respondent to withdraw from the contest and the allegation that the said false statement appeared in a paper with the consent of the 1st respondent, the 1st respondent denied that the above statement was ever made or that 431 it was made in his presence or with his consent, nor did he have any knowledge that it was published paper with this consent or that the paper was acting as his agent. Further, the trial court held that the witnesses who gave evidence in support of the allegations were not present at the meeting.
it was not proved that the first respondent ever consented at the second respondent to make the alleged false statement. The trial court, therefore, rightly rejected the allegations.
(vi) In examining the question whether the allegations about the commission of corrupt practices by a returned candidate, the Court has to keep in view that the allegations about the commission of corrupt practices are of a quasi-criminal nature, the proof whereof has a double consequence of not only setting aside the election of the returned candidate, but also imposing subsequent disqualification debarring him from becoming a candidate at any election for a period of 6 years. Inasmuch as the charge is a serious one and is of a quasi-criminal nature, the onus of Proving the essential ingredients prescribed by sub-s.(4) of s. 123 is on the person who allege them.
(vii)In the present case, from the evidence, it is not proved that the offending statement was made by Dhote an agent of respondent no 1, in the meeting or that it was made with the consent of respondent no. 1, The appellants have not established the corrupt practice under this head also by any credible evidence.
(viii) As regards the costs "incurred" in section 96 and 119 of the Act, it means what is actually spent,.
Accordingly, in the present case, it was incumbent in the High Court to award costs to the first respondent which costs he was entitled to if he could show that he bad incurred them. Admittedly, there was no proof of payment of any fee to counsel by the first respondent. As such he will not been titled to the amount of Rs.400/- per diem awarded by the High Court. The first respondent cannot be allowed to file any fee certificate before this Court since he had not done earlier.
Laxminarayan v. Returning Officer, C. A. No. 1014 of 1972 decided on September 28, 1973, referred to.
& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 901 of 1973.
Appeal under Section 116A of the Representation of the People Act 1957 from the judgment and order dated the 12th February, 1973 of the High Court at Bombay, Nagpur Bench, Nagpur, in Election Petition No. 2 of 1972.
K. H. Deshpande, A.Shelat, N. M. Ghatate and S. Balakrishnan, for the appellants.
S. N. Kherdekar, V. S. Sirpurkar, K. V. Sirpurkar, C. K. Ratnaparkhi and A. G. Ratnaparkhi, for respondent no. 1.
Gulab Rao Patel and Shiv Pujan Singh, for respondent Nos. 2- 4.
The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-The first respondent Govind Ramji Shende was declared elected as a member of the Maharashtra Legislative Assembly from Bhandara general constituency on March 11, 1972. Fifteen persons had filed their nomination papers, before the last date for filing the nominations on February 8, 1972. These nomination papers were duly scrutinised on February 9, 1972 and accepted as valid. By the date fixed for withdrawal on February 11, 1972, eleven persons who had filed their nominations withdrew their candidature leaving only four persons to contest the election. Of these the first respondent contested the election as an independent 432 candidate, the second respondent Tirpude contested on Congress (R) ticket, the third respondent contested as a Republican Party (Khobragade Group) and the fourth respondent as a Republican Party (Gaikwad Group) candidates.
These candidates polled respectively 41,511; 24,224; 3,585;
and 564 votes. As we have said earlier, the first respondent was declared elected as he had polled the highest number of votes and with a substantial majority of 17,287 votes.
Four electors from the constituency, of whom the first petitioner Baburao Bagaji Karemore was one, filed a joint petition challenging the election of the first respondent on various, grounds of corrupt practices under s. 100 read with sub-ss. (1), (2), (3), (3A), (4), (5) and (6) of s. 123 and for contravention of the provisions of s. 127A of the Representation of the People Act, 1951-hereinafter called 'the Act'. It was alleged in the petition that the first respondent did not keep separate and correct account of all the expenditure incurred and authorised in connection with his election between the date of the publication of the notification of holding the election and the date of the declaration of the results thereof. Nor were these accounts kept in accordance with the provisions of s. 77 of the Act read with r. 86 of the Conduct of Election Rules-hereinafter called 'the Rules' by not showing distinctly the date on which the expenditure was incurred or authorised, the nature of the expenditure, the amount of the expenditure, i.e, the amount paid and the amount outstanding, the date of payment, the names and addresses of payers, the serial number of bills and the names and addresses of the persons to whom outstanding are payable. It is also alleged that the first respondent has not obtained a voucher for every item of expenditure and the vouchers are not arranged serially in chronological order according to the date of payment as prescribed by s. 77 of the Act and the Rules framed thereunder. Although the outside limit of the expenditure which a candidate at an election to the Legislative Assembly was Rs. 12,000/- the first respondent suppressed many items of expenditure which were in excess of that amount such as expenditure on items relating to petrol, vehicles, printing, painting, loudspeaker and generator, hire charges of cycles, badges, serving of food and refreshment, processions and public meetings, bands, construction of booths, payment made to workers, office establishment etc. Apart from these suppressions, it is also alleged that M. T. Dalal 1 R. W. 1, and Shivshankar Ninave 1 R. W. 10 who were active agents of the first respondent were carrying on systematic propaganda on his behalf and they were also incurring expenditure with the consent of the first respondent as well as his election agent Bhole and were authorised to incur expenditure on behalf of the first respondent. Apart from these two persons it was also alleged that Kharabe and Wagner, father- in-law and maternal uncle respectively of the first respondent and Ramaji Gaidhane who were actually carrying on a systematic election campaign and propaganda on behalf of the first respondent also incurred expenses on various items with the consent and authority of the first respondent and his election agent Bhole, which expenses were not shown in the return of election expenditure submitted by the 433 first respondent. Several other instances were also given by the petitioners and it was alleged that if all these items of expenditure were included in the return of expenditure, the limit of Rs. 12,000/would exceed.
Secondly, it was alleged by the petitioners that in an election meeting held at Shahid Maidan of Bhandara on February 18, 1972 on behalf of the first respondent Jambuwantrao Dhote, who belonged to the Maha Vidarbha Sangharash Samiti and was actively supporting the candidature of the first respondent , made a false statement of fact which he himself as well as the first respondent either believed to be false or did not believe it to be true in relation to the personal character and conduct of respondent No. 2 Tirpude as well as petitioner No. 1 Karemore. The said Jambuwantrao Dhote is alleged to have made a statement in his speech in that meeting that the res- pondent No. 2 (Tirpude) secured the withdrawal of the petitioner No. 1 (Karemore) by giving him a bribe of Rs.
60,000/-. It was also alleged that these false statements were, made by Dhote in the presence of the first respondent and with his consent and that the first. respondent was present in that meeting when Dhote delivered the speech and also spoke subsequently in the same meeting. According to the petitioners, the first respondent got the said statement published in the Bhandara Times, a weekly, in its issue dated February 23, 1972, which newspaper was for all practical purposes acting as his agent. At any rate, the statement was published with the consent of the first respondent and his election agent.
It was again alleged that the first respondent also got printed or caused to be printed election pamphlets and posters in which appeal to the voters on the grounds of caste and community was made. In this connection it was averred that the electors were asked to refrain from voting in favour of respondent No. 2 (Tirpude) and other candidates on the ground of their race, caste and community and were asked to vote for himself on the ground of his race, caste and community with a view to further the prospects of his election and to prejudicially affect the election of other contesting candidates. The petitioners gave instances to show how this propaganda was carried on by issuing pamphlets by making it appear to the voters by statements of facts which were false and which the first respondent or the maker either believed to be false or did not believe to be true.
The first respondent denied that he made any statements in relation to the personal character or conduct of the second respondent Tirpude, nor did his election agent or his workers with his consent or that of 'his election agent make any such statements, nor could it be said that any of those statements were reasonably calculated to prejudice the prospects of Tirpude's election. While admitting that Bhole P. W. 40 was his election agent, he denied that he himself or his election agent Bhole or any other person with his consent or that of his election agent committed any of the corrupt practices alleged in the petition, or that the alleged corrupt practices had materially affected the result of the election, It was also averred that the expenditure 434 shown by him in the return of expenses was correct and the return was in accordance with law and the Rules framed in that behalf; that there was no 1 contravention of the provisions of s. 77 of the Act read with r. 86 of the Rules and denied that he incurred expenditure much more than Rs. 12,000/- as alleged in the petition. It was also denied that M. T. Dalal 1 R. W. 1 and Shivshankar Ninave 1 R.W. 10 were his. active agents and were carrying out systematic propaganda on his behalf or were incurring expenditure with his consent as well as of his election agent B.H. Bhole.
All these all negations with respect to the part said to have been played by M. T. Dalal also known as Bhau Dalal and Shivshankar Ninave were denied. The first respondent, however, admitted that Bhau Dalal was only authorised to purchase petrol and all the expenses incurred by him had been shown in the return of expenses but denied that Kharabe, Parashram Waghaya and Ramaji Gaidhane were actively carrying on a systematic election campaign and propaganda on his behalf or that they incurred expenditure on various items with his consent and authority or with the consent of his election agent Bhole. It was submitted that if these persons did incur any expenses it was on their own account and as friends or relatives, but he had not consented to their incurring the same nor did he authorise them to incur such expenses. In so far as the use of cycles, bands, loudspeakers, petromax and jeeps was concerned, he denied that all of them were hired by him or his election agent or with his consent or with the consent, of his election agent.
Similarly the various other items of expenditure, besides those shown by him in the return of expenses, were also denied as having been incurred during his election propaganda either by him or his election agent or by any person with the consent of his election agent. All other allegations in respect of providing free conveyance for carrying the voters to polling booths or of having asked the voters to refrain from voting in favour of Tirpude respondent No. 2, or the other candidates on the ground of caste and community or in having asked the voters to vote for himself on the ground of his race,. caste and community, or of having Promoted or attempting to promote feelings of class or religious hatred or of having printed and distributed the several pamphlets mentioned in paras 35 to 38 of the petition were denied. Nor was any of the alleged acts indulged in to further the prospects of his election and to prejudicially affect the election of the other contesting candidates. The averment that he and his election agent made allegations against the personal character or conduct of Tirpude respondent No. 2 were also likewise denied.
The first respondent further denied knowledge of the public meeting held on February 18, 1972, at Bhandara where Jambuwantrao Dhote is alleged to have made a speech. He denied that any statement relating to the personal character and conduct of Tirpude (second respondent) as well as Karemore (first petitioner) was made either by Jambuwantrao Dhote or by him or that those statements were made knowing them to be false or not believing them to be true. He denied all knowledge about Jambuwantrao Dhote having made any statement assailing the conduct and character of the rival candidate Tirpude. He denied that he was present at the said meeting 435, wherein Dhote is alleged to have delivered the speech or that he spoke in the said meeting. He also denied that the Bhandara Times, a Weekly published at Bhandara was making a propaganda on his behalf or that the said Weekly was acting as his agent. Accordingly he denied committing any corrupt practice within the meaning of s. 123 (1), (2), (3), (3A), (4), (5) and (6) of the Act.
Shende also denied. that he got printed or caused to be printed election pamphlets and posters contrary to the provisions of s. 127-A of the Act nor did he make any appeal on the ground of caste and community and exploited the communal sentiments or appealed to the voters to refrain from voting for the other candidates belonging to the, scheduled caste.
At this stage we may point out that though the third respondent filed his written statement practically admitting all the allegations in the petition against the first respondent, subsequently he filed an application that he be permitted to withdraw the power of his counsel A. M.
Deshmukh through whom the written statement was filed and also to withdraw his written statement. A. M. Deshmukh was permitted to withdraw his power from the case, but the third respondent was not permitted to withdraw his written statement. Thereafter the third respondent did not take any part in the proceedings. Respondent No. 4 neither appeared nor filed his written statement. Consequently the trial proceeded ex parte against both respondents Nos. 3 and 4.
Respondent No. 2 though represented did not file his written statement, On these pleadings as many as 31 Issues were framed by the High Court, of which Issue No. 1 related to a preliminary objection that the petition was liable to be rejected for non-joinder of all the persons who had filed their nomination papers for the election. The High Court decided this issue against the first respondent, but all other issues were held not proved by the petitioners and consequently the petition was dismissed with costs of the first respondent together with the counsel's fee of Rs.
14,400/-. As the first respondent was represented by more than two counsel, and as there were 36 effective hearings coursers fees where the first respondent was represented by more than two counsel was assessed at Rs. 400/- per effective hearing, and where only one counsel represented him it was assessed at Rs. 250/- per effective hearing.
Respondent No. 2 was not awarded any costs as he was held to be colluding with the petitioners who in fact were espousing his cause. Respondents Nos. 3 and 4 were also not awarded any costs as they were `exparte. The petitioners were directed to bear their own costs.
In this appeal the learned Advocate for the appellants at the very outset indicated that the appellants are restricting their case to the three heads of corrupt practices, namely :-
1. Under s. 123(4) of the Act for publication of false statements of fact in relation to personal character or conduct of the candidate or in relation to the candidature or its withdrawal.
436
2. Under s. 123(6) for incurring or authorizing expenditure in contravention of s. 77 of the Act.
3. Under s. 123(3) for making an appeal on the ground of caste or community by printing, publishing and distributing pamphlets Exts. 42 & 43.
issues under the first head are as follows 23 (a) Did the respondent no. 1 make statements of facts in relation to personal character or conduct of the contesting candidate N. K. Tirpude by himself, by his election agent or his workers and agents with his consent and that of his election agent ? (b) -Were these statements false and were believed by the respondent no. 1 or his workers to be false and not believed to be true ? (c) -Were these statements reasonably circulated to prejudice the prospects of the election of Tirpude ? The finding of the High Court on all these Issues was in the negative.
26 (a) Did Jambuwantrao Dhote address an election meeting on 18-2-1972 at Shahid Maidan, Bhandara ? (b) -Did he in that meeting make a statement of fact in relation to the personal character and conduct of Tirpude and Karemore ? (c) -Was such statement false to the knowledge of the maker as well as the respondent n. 1? (d) -Did Dhote in his speech make a statement that Tirpude secured the withdrawal of Karemore by giving him a bribe of Rs.
60,000/- and was this a false statement ? (e) -Was this statement made in the presence of the respondent no. 1 with his consent ? (f) Was the statement published in the Bhandara Times purported to have been made by Dhote, published with the consent of the respondent no. 1 and his election agent ? (g) -Was the Bhandara Times acting as the agent of the respondent no. 1 ? The High Court though it held on issue No. 26 (a) that such a meeting was held at Bhandara found in respect of issues 26 (b) to (g) that they were not proved.
437 Issues under the second head are as follows :
2.-Did the respondent no. 1 or his election agent B. H. Bhole and other persons with the consent of the respondent no. 1 Shende and his election agent commit acts enumerated hereunder :
(a) (i) Incurring or authorising of expenditure in contravention of section 77 of the Representation of the People Act ? (ii) Not keeping the account as per provisions of section 77 read with rule 86 of the Conduct of Election Rules ? (iii) Not arranging serially in chronological order the vouchers according to the date of payment as prescribed by section 77 and the Rules framed thereunder.
(d) -Did the respondent no. 1 take out a procession on 1-3-72 accompanied by loudspeaker, band, tube lights, petromax etc.
and incur expenditure therefore through himself or his election agents and were not accounted for in the return ? The finding of the High Court on issue 2 (a) (i) to (iii) was in the negative and that on issue 2 (d) was that expenses for the procession dated March 1, 1972 have been accounted for in the return.
3. Did the respondent no. 1 take cycles on hire as under (d) 15 cycles for 20 days at the rate of Rs. 1.50 per day from Fakruddin Patel of Chhota Bazar, Bhandara? The High Court found this. issue not proved.
4. (b) Did the workers of the respondent no. 1 take their meals at the cost of the respondent no. 1 at Kirti Boarding and Lodging Hotel, Bhandara ? (c) Did the respondent no. 1 incur and expenditure of about Rs. 2,000/- on the meals and refreshment of these workers ? (d) Did the respondent no. 1 incur and expenditure at the Kirti Hotel do Rs. 630/- between 10-2-72 to 18-2-72, Rs. 715/- between 19-2-72 to 29-2-72, Rs. 650.55 between 1-3-72 to 6-3-72 ? (e) Was thid amount paid by the respondent no. 1 through Sheoshankar Ninave ? Was this expenditure incurred by Ninave with the consent and authorisation of the returned candidate Shende or his election agent ? The finding of the High Court on all these issues was in the negative.
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5. (a) Did the respondent no. 1 hire jeeps, Ambassador cars, taxies, tempos and tractors for the purposes of can in the constituency bearing nos. 1 MPC-9029-Jeep, (2) MRG-98-Taxi, (3) MHC- 191 taxi, (4) (4) MRG- 2216-Car, (5) MHN-4391-Car, (66) BYJ-5107-Car (7) MHG-3105- Truck, (8) MHG-3638-Tractor,(9) MHX-5080-Tractor, (10) MHG-2902-Tempo and (11) MHG-143- (b) Were the above vehicles taken on hire by the respondent Taxi ? no.1 and used by him and his workers and his election, agent for the purposes of election propaganda? (c) Did the workers of the respondent no. 1 use those vehicles with his consent or his election agent ? The finding on issuer 5(a) was that only Taxi No. MHG-191 was hired but not by the respondent no. 1 ; finding on issue 5(b) was that Taxi No. MHG-191 was used by the workers of the respondent no. 1 for the purpose of election propaganda and the finding on issue 5(c) was in the negative.
7. (d) Did the respondent no. 1 incur an expenditure of Rs. 8,000/ for the purchase of petrol and diesel oil for cars, jeeps, taxies, trucks and tractors from various petrol pumps, such as Gurjar Brothers Petrol Pumps, Bhandara, Petro] Pump of Sale and Purchase Society at Tumsar and from Kulwal and Sons of Tumsarfor the purposes of the several vehicles used by him for an election propaganda, and (e) Was this expenditure incurred by him or his workers with his consent or with the consent of his election agent ? (f)Did the respondent no. 1 purchase petrol and diesel oil, through M. T. Dalal, Kharabe, Ninave and Saxena ? (g) Were the charges for the purchase of this petrol and diesel actually incurred by the respondent no. 1 through his workers ? (h) Did the respondent no. 1 take camouflage receipts in the name of Jana Sangh and Congress (0) parties to conceal the true nature of the transactions, though the expenditure, was incurred and authorised by him ? The finding on issue 7(d) was that petrol oil etc. worth Rs. 2,992-95 was purchased from Gurjar Brothers in addition to the amount shown in the return of expenses ; the finding on 7(e), (f) and (g) was in the affirmative as regards the total amount of Rs. 3,970-35; the finding on 7(h) was in the negative.
11. (a) Did the respondent no. 1 incure expenditure of more than Rs. 6,000/- for the pay of 10 drivers and for the meals, tea and refreshments for the workers at Panchsheel Lodge, Bhandara, Baba Rup Lodge, Bada Bazar, Bandara and Kirti Hotel, Bhandara ? 439 (b) Was this expenditure incurred by the respondent, no. 1 personally as well as by his election agent and other Workers: with the consent of the respondent no. 1 or his election agent at various place throughout the constituency, including Mohadi, Warthi, Bhandara, Shahpur and Kardi ? The finding on issue 11(a) is that it is not proved except 'the extent of Rs. 230-60 and on (b) that it does not arise except for Rs. 230- 60.
14. (d) Did the respondent no. 1 got prepared printed.
posters in various sizes and got printed badges in 3 varieties of about 10,000 in number ? (e) Did he incur an expenditure of Rs. 8,000/- for this purpose ? (f) Did the respondent no. 1 incur an expenditure of Rs. 800 for preparing stencils for wall paintings and for painting the walls through paid workers at different places like Bhandara, Mohadi, Eklari, Warthi, Shahpur, Dhargaon, Dardha, Karadhi, Mundri, etc. ? The finding of the High Court on issue 14(d) is that respondent no. 1 got printed from Laxmi Litho Works 5500 posters in two sizes and 25000 badges but the expenses have been accounted for ; on issue 14(e) the finding is that respondent no. 1 incurred expenditure of Rs. 765/- on printing of posters and badges which are accounted for and on issue 14(f) the finding is that besides what has been stated in the return, respondent no. 1 did not incur any more expenditure.
15. (a) Did the respondent no. 1 get more than lakhs of copies. of pamphlets and incurred thereon an amount of Rs. 1,000/- ? (b) Did the respondent no. 1 get printed and published the pamphlets such as (1) Lok Shikshan Karita Mat Patrika, (2) Naya Yuvkanche Awahan, (3) Nimra Nivedan, (4) Chhatra Chhatraya Nava Yuvak Bhaiyo Aur Bahno Jahir Paigam, (5) Chala, Cycle-la vote apan Devoo; (6) Namra Nivedan, (7) Jambuwantrao Dhote Yanche Jagir Bhashan, (8) Jan Jagriti Parcha, (9) N. K. Tirpud Khalil Prashan Chettar dya, (10) Teli Matdar Bandhu Bhagini Na Awahan, (11) Kunbi Matdar Badndhu Bhagini Na Awahan, (12) Khoote Kadhi Bolnar Nahi ? The finding of the High Court on 15(a) is that respondent no.1 got printed only the pamphlets at serial Nos. 1, 3, 6, and 7 incurred expenditure thereon as shown in the return, and on (b) in that respondent no. 1 got printed and published only the, pamphlets at S. Nos; 1, 3, 6 and 7.
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16. (b) Did the respondent no. 1 not show in his return all expenses aforesaid or any part of it and thereby contravened the provisions of section 77 of the Representation of the People Act and committed a corrupt practice within the meaning of section 123(6) of the Act ? The finding is that respondent no.1 did not show the amount ,of Rs. 2,992-95 but that does not amount to a corrupt practice within the meaning of s. 123(6) of the Act.
The net result of these findings was that though the first respondent had shown in his election return a sum of Rs. 7,749-11 as election expenses a further sum of Rs. 2,992- 95 was added by the High Court as amount spent on petrol but not included in the return. If this :sum was added to the amount shown in the election return the total amount of expenses as have been found by the High Court to have been incurred by the first respondent came to Rs. 10,741-96 which was still within Rs.12,000/- permissible under the law to be incurred.
The issues under the third head are as follows :
19. (a) Did the respondent no. 1 issue a pamphlet which was printed at Bharat Seva Chhapakhana at Bhandara and published by S. G.Balpande, Eklari, which is signed by N. S.
Motorola of Mohadi, Sakharam Narayan Singh Dipte and S. G. Balpande Alkari ? (b) Was this pamphlet published with the consent of the respondent no. 1, or his election agent ? (c) Was it widely distributed throughout the constituency by the respondent no. 1, his election agent, or his workers and agents with the consent of the respondent no. 1 and his election agent ? On these issues the finding of the High Court was in the negative.
21. (a) Did the respondent no. 1 get a pamphlet printed and published from the Bharat Seva Chhapkhana, Bhandara published in the name of Tukaram Rakhlu Shende and signed by Tukaram Rakhlu Shende, Mandvi, making an appeal to the voters on the Kunbi community ? (b) Was this pamphlet published by the respondent no. 1 or his election agent or Tukaram Rakhlu Shende with the consent of the respondent no. 1 or his election agent ? (c) Did this pamphlet amount to an appeal to the voters on the basis of caste and was it meant to create hatred between the caste and community or class and soliciting votes in the name of caste and community ? (d) Does this amount to corrupt practice within the meaning of section 123 of the Act ? 441 The finding on issue 21(c) was in the affirmative and that on (a), (b) and (d) was in the negative. In other words though the pamphlet specified in issue 21(a) amounted to an appeal to the voters on the basis of caste and meant to create hatred between the caste and community or class and soliciting votes in the name of caste and community. it was not printed and published by the first respondent or his election agent or Tukaram Rakhlu Shende with the consent of the first respondent or his election agent.
We will take the last head under issues 19 and 21 first.
These relate to two pamphlets, Exts. 42 and 43, in which a communal appeal to the electors to vote for the first respondent was made. Exhibit 142 is a pamphlet which makes an appeal to the Kunbi voters while Ext. 43 makes an appeal to the Teli voters. The appeals in these exhibits are as follows Exhibit 42 :
To Kunbi Voters Brothers-Sisters.
Appeal Voters Brothers-Sisters, there are in all nine constituencies in Bhandra district; and out of them in Bhandara, Tumsar, Adyal and Pauni constituencies, there are only 70,000 Kunbi voters. While deciding the candidate in this area, the Congress has not taken notice of the strength of the Kunbi community and Congress leader Shri Tirpude of this district has purposely left aside the Kunbi community.
This means there is no place of honour in this area to Kunbi community.
Therefore Kunbi voters (1) be united and defeat Congress candidate Shri Tirpude to achieve its place.
(2) Community leader Shri Govind (Dada) Shende be elected by overwhelming majority.
On Cycle Symbol Symbol of Cycle] after affixing stamp, elect the Dada Shende.
Yours humbly, (Vinit) Tukaram Rakhalu Shende, Mandwavi, Taluq, District Bhandara.
Publisher : Tukaram Rakhalu Shende, Printer :
Bharat Seva Chhapakhana, Bhandara.
Exhibit 43 :
To Tell Voter Brothers-Sisters Appeal There are nine constituencies in this Bhandara district. out of them, in Bhandara, Adyal, Tumsar constituencies, there are about 442 60,000 Teli voters. in this election, Congress has not taken any notice of the active workers of the Teli community in this constituency, and in the name of Teli community, an outsider rich lady is set up from Pauni constituency.
Likewise, by denying a ticket granted to Shri the feelings of the Teli community are hurt.
Behind this misdeed of them, it is obvious that there is a hand of Shri N. K. Tirpude, a Congress candidate from Bhandara constituency._ For this misdeed of theirs, Teli community should teach him a lesson in this election.
It is requested that the voter brothers, sisters from Teli community should put mark on the Cycle symbol of Govind (Dada) Shende and elect him by overwhelming majority.
Yours humbly, (Vinit) M.S. Motghare, Mohadi, Sakharam Narayanji Dipate, Mohadi, S.G. Balpande, Ekalari.
Publisher : S.G. Balpande, Printer : Bharat Seva Chhapa- Ekalari khana, Bhandara.
If these pamphlets are proved to have been issued by a candidate or his agent or by any other person with the consent of a candidate or his election agent, to vote on the ground of his religion, caste, race, community or language or they are used as an appeal to religious symbols for furtherance of the prospects of the election of that candidate which prejudicially affects the election of any candidate, then he will be guilty of a corrupt practice within the meaning of sub-s. (3) of s. 123 of the Act.
There is no doubt that Exts. 42 and 43 make a communal appeal to Kunbi and Teli voters to vote for respondent No.
1. Not only do they have that effect, but they also impute to the rival candidate Tirpude respondent No. 2 a bias against those voters. The only question, therefore, is whether it is proved that these pamphlets have been printed, published and distributed by the first respondent or his election agent or by any other person with the consent of the first respondent or his election agent. The High Court, while holding that the pamphlets amounted to making a communal appeal, found that they were neither got printed, published or distributed by or on behalf of the first respondent nor by his election agent or by his workers with his consent or the consent of his election agent, and as such there was no corrupt practice committed within- the meaning of sub-s. (3) of s. 123 of the Act.
This finding has been attacked by the learned Advocate for the appellants on the ground that the- appreciation of evidence by the learned Judge of the High Court is not warranted. It is needless for us to reiterate what has over a long course been observed in numerous decisions that a finding arrived at on an appreciation of conflicting testimony by a Trial Judge who had the opportunity of observing the demeanour of witnesses while giving evidence should not be lightly 443 interfered with merely because an appellate court which had not the advantage of seeing and hearing the witnesses can take a different view, Before a finding of fact by a Trial Court can be set aside it must be established that the Trial Judge's findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. This is not to say that a Trial Judge can be treated as infallible in determining which side is indulging in falsehoods or exaggerations and consequently it does not preclude an appellate court from examining and appreciating the evidence in order to ascertain whether the finding arrived at by the Trial Judge is warranted. If that is not warranted, it can, on its view of the evidence, arrive at a conclusion which is different from that arrived at by the Trial Court. This aspect was discussed in detail in Laxinarayan v. Returning Officer(1),- to which we were parties.
We have already set out in brief what the appellant's allegations and the respondent's answer to those allegations were. What has now to be ascertained is, firstly, whether the pamphlets Exts. 42 & 43 have been proved to have been printed by Bharat Seva Chhapkhana, Bhandara and in respect of Est. 42 published by Tukaram Rakhalu Shende and in respect of Ext. 43 by S. G. Balpande, Ekalari; secondly, if they are proved to have been so printed and published, whether the first respondent or his election agent or Balpande or Tukaram Rakhalu Shende got them printed and published with the consent of the first respondent or his election agent and thirdly that these pamphlets were printed, published and distributed during the election before the date of polling. In proof of these allegations the appellants sought to establish (1) by direct evidence of witnesses who were present at a meeting in Saxena's house in which respondent No. 1, Bhole P.W. 40 and others were present, where it was decided to appeal to the Teri and Kunbi voters; (2) by evidence of the printer who printed them; (3) by the pamphlets being taken delivery of on behalf of the first respondent; and (4) after taking delivery from the printer of copies of pamphlets, giving them in the election office of the first respondent. On the first circumstance, the evidence of P.W. 27 and P.W. 40 was relied upon by the appellants. P.W. 40 is an Advocate who became the election agent of the first respondent on February 21, 1972. Both P.W. 27 and P.W. 40 speak about a meeting held in the house of P.W. 27 on February 11, 1972 in which the first respondent Shende, Bhau Dalal (M.T. Dalal) R.W. 1, Saxena (P.W. 27), Dhaskar Ninawe (1 R.W. 7) and others were present where it was decided to appeal to the Teli and Kunbi voters who formed a majority of the electorate. The other witnesses who were said to have been present, namely, 1 R.W.
1 Dalal, 1 R.W. 7 Bhaskar Ninawe and the first respondent, 1 R.W. 15 Shende, denied that any talk of that nature took place or that any such decision was arrived at. The learned Judge did not accept the evidence of these witnesses for the reason that the evidence of P.W. 27 Saxena is not of any value for substantiating the printing and publication of Exts. 42 and 43 because he does not mention the name of (1) C. A. No. 1014 of 1972 decided on September, 1973.
444 P.W. 40 at the meeting held on February 11, 1972, even though P.W. 40 says he was present not only at that meeting but also at a meeting held on February 12, 1972 in the house of 1 R.W. 1 Dalal at which the decision to print Exts. 42 and 43 was taken. Even 1 R.W. 15 Shende, 1 R.W. 1 Dalal, Bhaskar Hardikar (1 R.W. 5) and Bhasker Ninawe (1 R.W. 7) did not mention the name of Bhole P.W. 40 as being present at the meeting held on February 11, 1972 in the house of P.W. 27 nor were they asked about the meeting on February 12, 1972 held in the house of Dalal. They also deny having placed any orders for printing the pamphlets or of publishing or distributing the appeal nor were they signatories to the pamphlets. The presence of P.W. 40, therefore, was held to be improbable. The evidence of P.W.40 was further held to be improbable because at that stage he was not interested in the election.
The learned Advocate for the appellant contests this finding on the ground that the evidence of Saxena about the meeting on February 11, 1972 makes the printing of Exts. 42 and 43 probable; that the learned Judge did not discuss the evidence of respondent's witnesses on merits and probabilities; that Bhole eventually became election agent as such it is quite natural to presume that he must have been associated with the election campaign right from the start; and that in any case no suggestion was made to Bhole that he was not interested in the election at the stage when the matter of communal appeal was decided. On the other hand, it is submitted that a definite suggestion was made to 1 R.W. 1 Dalal and there was no point in cross-examining him when it was denied by Dalal that any such meeting had taken place.
We will now examine the evidence to see whether the learned Judge was justified in rejecting the evidence of the appellant that at the meeting held in P.W. 27's house it was decided to make a communal appeal, that on the next day the manuscripts of Exts. 42 and 43 were discussed and it was decided to have the same printed and published, that they were got printed at the Printing Press of Jagdishkumar Gupta P.W. 35 and that delivery was taken of these pamphlets and thereafter distributed.
It is true that though Saxena says that in the evening of February 11, 1972 a meeting was held at his place which was attended by Dada Shende (1 R.W. 15), Bhau Dalal (1 R.W. 1), Parashram Waghaye, Bhaskerrao Hardikar, Bhasker Ninawe, Ram Hadau, Sarwan Hedau and some others, he did not specifically mention P.W. 40. He, however, says that. at that meeting it was considered that as there might be 32,000 Teli and 24,000 Kunbi voters in Bhandara constituency and that since the first respondent was a Kunbi, the support of Kunbi voters should be sought. He also says that since Karemore who was first given a ticket by the Congress was a Teli and since that ticket had been cancelled in favour of Tirpude, the support of Teli community should also be sought in favour of the first respondent as Teli candidate was deprived of the ticket. This witness also admits that Bhau Dalal was incharge of the election campaign. The learned 445 Advocate for the appellant contends that though P.W. 40's name was not mentioned, the probability that he was present, cannot be ruled out inasmuch as P.W. 27 does not categorically exclude his presence when he says that others were also present there. The criticism that it was not suggested in cross-examination whether P.W. 40 was not present is, in our view, not tenable, because at that stage it could not be ascertained what P.W. 40 would say. Even so, whether at that meeting P.W. 40 was present and whether such a discussion took place to appeal to Teli and Kunbi voters, can only be ascertained from an overall consideration of the evidence and the probabilities in the case.
P.W. 40 who asserts that he was present at the meeting held on February 11, 1972 in the house of P.W. 27 Saxena says that on that day after the name of the candidate for election was finalised, the respondent came to the Bar-room to see Advocates Bhau Dalal, Waghaye and Saxena as to what the future programme in the election should be. It was then arranged that they should meet at the house of Saxena in the evening at 7 or 7-30 p.m. The meeting was accordingly held in the house of Saxena where Saxena P.W. 27, Dada Shende (1 R.W. 15), Bhau Dalal (1 R.W. 1), Bhaskar Ninawe (1 R.W. 7), Ram Hedau, Shrawan Hedau, Bhaskar Hardikar (1 R.W. 5), Parashram waghaye and 4 or 5 other persons were present. At that meeting there were deliberations as to how best to conduct the election campaign and secure a majority of votes. In that meeting it was decided to make efforts to get votes of Teli voters for Dada Shende. The next day in the morning (ie. February 12, 1972) a meeting was arranged with him at the house of Bhau Dalai (1 R.W. 1). He went there. At that meeting Bhau Dalal, Shivshanker Ninawe (1 R.W. 10) and 2 or 3 others were present. Bhau Dalal said that some pamphlets are to be printed and that they should go to the Press. There were two manuscripts of the pamphlets which were to be printed. He says the manuscripts appeared to him to contain propaganda on communal basis and accordingly he expressed his doubts. Then they were satisfied that they could not be said to contain any propaganda on communal basis. The two manuscripts on the basis of which the pamphlets were to be printed had the caption "Teli Bandhawana Awahan and Kunbi Bandhawana Awahan". He also admits that while he and Shivshankar Ninawe were going to invite Jambuwantrao Dhote, on their way to Pind Kepar, they went to Bharat Sewa Press and collected the two types of pamphlets referred to above. They then returned the pamphlets to the election office and deposited them there. He also says that he took out a few pamphlets from those bundles and they went to Pindkepar; that he read those pamphlets after they were printed and the printed pamphlets were the correct copies of the manuscripts which he had read earlier. Exhibits 42 and 43 were shown to the witness. He said that those pamphlets were similar to those taken by them from Bharat Seva Press. The manuscripts 42A and 43A were also shown to him and he said that they were the same which he had read earlier at the house of Bhau Dalal. He admits that he was appointed election agent of the first respondent on February 21, 1972 3--M60Sup CI/74 446 and the declaration forms to that effect were submitted to the Returning Officer on the same day. In cross-examination he admitted that he took interest in this election in order to get himself acquainted with political life and to get an opening in politics. What is more, he went to the length of admitting that he had not so far read the election law though he took part in the mid-term Lok Sabha election of 1971 and the 1972 Assembly elections. When the manuscripts Exts. 42A and 43A of which Exts. 42 and 43 were the printed pamphlets were. shown to him he said he could not recognise the handwriting though he admitted he knew Bhau Dalal's handwriting. He did not say they were written by him nor were they according to him in the handwriting of Bhole, Saxena, Bhaskar Ninawe, Shivshankar Ninawe, Bhaskar Hardikar. He says he does not know the persons whose names appear as signatories to the pamphlets Exts. 42 and 43, nor does he know the publishers of the two pamphlets. He only came to know the name of Gupta whom he had known by face when the pamphlets Exts. 42 and 43 were given for printing in his Press. According to him he had gone to Bharat Seva Press with Bhau Dalal and two or three others 2 or 3 days after the date of withdrawal. Two or three days after that date the printed pamphlets were delivered to them. 4,000 copies of each were taken and at the time of taking delivery about Rs. 50/or so were given by Shivshankar Ninawe (1 R.W.
10) to Gupta and a receipt was obtained from him by Ninawe.
He also says that at the time of taking delivery, Ninawe had not with him the bill or the order copy from the Press nor does he know if Gupta had written any order for the printing work.
From this evidence, it emerges that on February 12, 1972 when the manuscripts of Exts. 42 and 43 were seen by him, the first respondent has not been. stated to be present in the house of Bhau Dalal. While he specifically mentions the name of the first respondent as being present at the meeting in P.W. 27's house on the evening before, namely on February 11, 1972, his omission to mention Shende as being present on February 12, 1972 is significant. There is no warrant for the submission that no suggestion was made to the witness in cross-examination that Shende was present because when a witness has not mentioned the name of a person being present and it is the specific case of the first respondent that he was not present at that meeting,.he could not be expected to suggest that he was present or even that he was not present.
Secondly, it is rather strange that the witness being an Advocate and having admitted that he had taken part in the mid-term Lok Sabha Election of 1971 and Assembly Elections in 1972, he did not read the ,election law then or even by the time when he was giving evidence. Though ordinarily unless one is concerned with a particular matter, he may not be expected to be conversant with that branch of the law with which he is not dealing, nonetheless an Advocate who is claiming to be an election agent and has earlier admitted to have taken part in the election work would be expected to be conversant with the election law. This admission shows that either he was very raw knowing nothing about the election law, and hence, as stated by the first respondent, was not entrusted with any important work, or that he had experience of election work and knowing that a communal appeal 447 to voters would be a corrupt practice under the Act has changed his loyalty to support the petitioners and Respondent No. 2 against the first respondent.
It has been stressed with great emphasis that the first respondent admitted that Bhole P.W. 40 was his election agent and hence any admission made by him in this regard is binding on the first respondent. Though the first respondent admits appointing Bhole as his election agent, his case is that he had not known him personally but he was introduced to him by Saxena P.W. 27 an Advocate, who was the Vice-President of ' the Congress-0. It was at the instance of Saxena that Bhole was appointed as his election agent but was not entrusted to do any work in the election, nor was Bhole entrusted with any funds or with any work, nor were any of the workers of the first respondent approaching him for instructions, guidance and orders. It was alleged that Bhole volunteered to work as an election agent only for the purposes of getting some experience of election work, but was only figuring as a dummy and practically took no part in the election. At any rate, he was not appointed an election agent at the time when the pamphlets were said to have been printed but subsequently. It was then alleged that after the election, Saxena Advocate and Bhole who was his junior had been won over by Tirpude respondent No. 2 for whose benefit the petitioners had filed the election petition.
There is no doubt that Bhole changed his loyalties along with Saxena as pleaded by the first respondent. He goes all out to depose to incidents alleged to have taken place which will injure the first respondent, particularly in respect of matters which others present did not speak of. For instance he is the only witness who says that Jambuwantarao Dhote at the meeting held on February 18, 1972, indulged in communal propaganda when no one else who is said to have been present at the meeting said so. He denies that he is a Junior of Saxena and yet admits that he worked in 10 or 15 cases with Saxena as his junior. Though he asserted that he saw the manuscripts of the pamphlets, is unable to give the correct heading of the appeal in Exts. 42 and 43. The actual heading on Exts. 42 is "KUNBI MATDAR BANDHU BHAGININA AWHAN" and on Ext. 43 "TELI MATDAR BAN. DHU BHAGININA AWHAN". if his evidence is further scrutinised in the light of the evidence of other witness, it is equally uninspiring.
Bhau Dalai' 1 R.W. 1' while he admits that there was a meeting on February 11' 1972 at the house of P.W. 27 for deciding as to what action should be taken in respect of the election propaganda, he does not speak of any meeting in his own house on February 12, 1972 at which P.W. 40 was present, nor is there, any mention by him of the manuscripts Exts.
42A and 43A of which Exts. 42 and 43 are printed pamphlets, being shown or discussed. He also denies having either seen the proprietor of the Bharat Seva Chhapkhana or of his having gone to him to place any order for printing any pamphlets at that Printing Press including the offending pamphlets. Bhau Dalal, however, says that after the election petition was filed, he was told by. Dada Shende (1 R.W.1) that two pamphlets regarding appeal to Teli 448 and Kunbi communities have been filed along with the election petition and in consultation with others a letter under the signature of Dada Shende was written to the proprietor of Bharat Seva Chhapakhana about the printing of the pamphlets in his Press. After a few days, Shende told him that the proprietor of the Bharat Seva Press had given a letter explaining his position. Exhibit 126 is the letter which Shende wrote to the proprietor of the Chhapakhana in consultation with him and these letters were acknowledged on August 11, 1972 by the proprietor (Exts. 127 and 128). In October 1972 Shende and he (Dalal) saw the two pamphlets in the file of the District Election Officer, Bhandara. In cross-examination, it was suggested to the witness that there was a meeting in his house on February 21, 1972 at which P.W. 40 was present. He however, denied that there was any talk at the house of Sexena on February 11, 1972 about the details of election work, nor was any programme relating to election discussed at the house of Saxena on that evening, nor were Bhasker Hardikar, Bhasker Niwas, sheoshankar Ninawe, Ram Hedau, Shrawan Headau and Advocate Bhole asked to attend the meeting at the house of Saxena.
There was also no thought given between February 11 and February 18, 1972, for the appointment of an election agent.
It was on February 18, 1972, that it was decided to appoint an election agent. In the lengthy cross-examination spreading over 33 cyclostyled pages, there is not a sug- gestion that a meeting was held in Bhau Dalal's house at which Bhole was present or at which the manuscripts of the pamphlets Exts. 42A and 43A were considered and discussed.
It is, in our view, idle to say that because a meeting at P.W. 27's house (Saxena's house) on the evening of February 11, 1972 was denied, the meeting on February 12, 1972 also would be denied, and, therefore, no questions were asked.
If no questions were asked in respect of the meeting of February 12, 1972, at which the manuscripts of the two pamphlets were alleged to have been discussed, then the inference is that the appellant did not wish to challenge that any such meeting took place, particularly when Bhau Dalal ascertained that the first time he came to know about these pamphlets was after the election petition was filed.
Surely, if the positive case of the appellant was as spoken to by P.W. 40 that a meeting had taken place at Bhau Dalal's house on February 12, 1972 at which the manuscripts of the offending pamphlets were seen and discussed, it should have been suggested that statement was false and that the witness had known about those pamphlets much earlier when the manuscripts were discussed in his house. Even according to P.W. 40, Shende was not present nor did he authorise at that meeting the printing or publication and distribution of any such pamphlets. Another significant statement of P.W. 40 is that though he expressed doubts at the meeting that the two manuscripts of the pamphlets which were to be printed might amount to a propaganda on communal basis, he nevertheless says that when they discussed the contents of the pamphlets they were satisfied that those pamphlets could not be said to contain propaganda on communal basis. If this is so, and for an election agent, particularly a lawyer who, said earlier, had admitted having taken part in election work previously, and would be expected to know what would amount 449 to a communal appeal, then the inference would be that the manuscripts that were discussed and got printed were not the offending pamphlets Exts. 42 and 43. It is however, contended that Bhau Dalal, Ninawe (1 R.W. 7) and the first respondent Shende admit that they met in Saxena's house and discussed election strategy in view of Tirpude filing his nomination. Dalal denies that he tried to find out the number of voters in Bhandara constituency caste-wise, while Ninawe merely admits that there was a general discussion about the election. Shende also does not admit that there were any discussions about strategy. Whether strategy for the election was discussed at that meeting or not, and there must have been some discussion of how the election campaign must be conducted, it will be too farfetched to infer from that admission that they discussed about making a communal appeal to the voters. In our view, the evidence of this witness was rightly disbelieved by the Court. Nor is it established from a reading of that evidence that a meeting as spoken to by P.W. 40 took place on February 12, 1972, or that the manuscripts of the impugned pamphlets, Exts. 42 and 43, were either discussed or it was decided to have been printed.
The next question is whether Exts. 42 and 43 were printed in the Bharat Seva Chhapakhana, and, if so, when were they printed. Jagdish Kumar Gupta, P.W. 35, asserts that Exts.
42 and 43 were printed at his Press, but the case of the first respondent is that they were not printed at his Press, and in any case they were printed subsequently after the election results were declared and for supporting the election petition. The learned Judge disbelieved the evidence of P.W. 35 on various grounds, namely, that since the Press was adjoining the house of Rambhat, Secretary of the Congress, it was unlikely that this Press would have been chosen; that the order book Ext. 125 is only a bill book; that Shende and Ninawe were not asked to produce original bills; that there is no signature of the person placing the order, and, therefore, an adverse inference can be drawn to hold that there was a separate order book and
