Krishan v. Sat Narain — 1968 DIGILAW 92 (SC)

JUDGMENT : Shah, J. 1. The first respondent Sat Narain filed a petition to set aside the election of the appellant Shri Krishan who was declared elected to the Haryana Vidhan Sabha from the Safidon Constituency in Jind District at the general elections held in February 1967. Out of the several grounds set up in support of the petition, only one ground of corrupt practice on which the first respondent relied before the High Court need be set out; viz. that the total expenses incurred by the appellant in connection with the election between the date of the publication of the notification and the date of declaration of the result exceeded the amount prescribed under Section 9-A of the Representation of the People Act, 1951. 2. Section 77 of the Representation of the People Act provides: "(1) 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 or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive. (2) The account shall contain such particulars, as may be prescribed. (3) The total of the said expenditure shall not exceed such amount as may be prescribed." Section 123 sets out what the corrupt practices are. Insofar as it is material it enacts: "The following shall be deemed to be corrupt practices for the purposes of this Act: (6) The incurring or authorising of expenditure in contravention of Section 77." By Section 100 the High Court is enjoined to declare the election of the returned candidate void, if the Court is of opinion, that any corrupt practice was committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. 3. The appellant submitted his return of election expenses incurred by him on March 21, 1967, and disclosed therein that the expenses incurred by him in connection with the election amounted to Rs. 5838.32. At the trial he admitted that he had in addition to the amount returned, spent Rs. 67.80 and Rs. 34 in connection with the election. The total amount thus admitted to have been incurred amounted to Rs. 5838.32. At the trial he admitted that he had in addition to the amount returned, spent Rs. 67.80 and Rs. 34 in connection with the election. The total amount thus admitted to have been incurred amounted to Rs. 5940.12, and the maximum amount of expenditure prescribed under Section 77(3) in connection with the election to the Haryana Vidhan Sabha is Rs. 6000. It was the case of the respondent that besides the expenditure admitted, the appellant had incurred other expenditure for procuring motor trucks used in connection with the election. The High Court held on a consideration of the evidence that the appellant had in connection with the election spent Rs. 450 in respect of two Trucks Nos. PNK. 2629 and PNK. 6019 hired by him, and, the total expenditure incurred by the appellant on that account exceeded the maximum prescribed. 4. Counsel for the appellant substantially raised three contentions in support of his appeal: "(1) that a new case was made out by the High Court which was not set out in the petition and which the appellant had no opportunity of meeting. According to counsel, allegations made in the petition were restricted to a charge of infringement of the provisions of Section 77(1) and Section 77(2) but the High Court made out a case of a corrupt practice under Section 77(3) read with Section 123(6). Again it was the case of the respondent that the expenditure in connection with the two trucks was incurred on the date of polling for carrying voters to the polling stations, at the trial a case was made out that it was incurred between February 9 & 16, 1967; (2) that no issue was raised about the commission of any corrupt practice under Section 123(6) read with Section 77(3). No particulars were furnished as required by Section 83 of the Act, and that because of defective pleading and failure to raise an express issue, the appellant was prejudiced in that he was unable to prove that the total expenses even assuming that the amount of Rs. 450 be taken into account, did not exceed the maximum prescribed under Section 77(3); and (3) that on the evidence the charge was not proved." 5. 450 be taken into account, did not exceed the maximum prescribed under Section 77(3); and (3) that on the evidence the charge was not proved." 5. Section 77 of the Act imposes an obligation upon every candidate to maintain a separate and correct account of all expenditure incurred or authorised in connection with the election, and the account must contain particulars prescribed. The section also enacts that the total of the expenditure shall not exceed the prescribed amount. Section 123(6) makes incurring or authorising of expenditure in contravention of Section 77 a corrupt practice: failing to maintain an account or maintaining an account not containing particulars prescribed is not declared a corrupt practice. By Section 123(6) it could only be intended to refer to sub-section (3) of Section 77. In the petition it was recited in para 4(b) that the appellant had contravened the provisions of Section 77 as he had deliberately and intentionally filed a false return of expenses incurred by him between the date of publication of the notification calling the election and the date of declaration of result thereof, and this act of the appellant amounting to a corrupt practice fell under clause (b) of Section 100 of the Act. Relying upon that averment, the appellant contended that the case of the first respondent was that the appellant had filed a false return - an act which is not a corrupt practice, and that the Respondent 1 could not make out at the trial a case that the total expenditure incurred by the appellant in connection with the election exceeded the prescribed amount. But that averment was plainly introductory. The petition proceeded to state that the appellant had not included certain other expenditure incurred by him or at his instance in the return of election expenses and had thus committed a corrupt practice. Then followed a schedule of expenses alleged to have been incurred or authorised by the appellant. Item (vii) of the Schedule stated that the appellant had not disclosed in his return the "hire money paid for certain vehicles used by him in his election work from the date of notification of election up to the date of result, and among the vehicles so used were Trucks Nos. PNK. 2629 and PNK. 6019. Item (vii) of the Schedule stated that the appellant had not disclosed in his return the "hire money paid for certain vehicles used by him in his election work from the date of notification of election up to the date of result, and among the vehicles so used were Trucks Nos. PNK. 2629 and PNK. 6019. It was clearly intended to plead that the aggregate of those items of expenditure incurred by the appellant, and the total expenditure disclosed by the appellant exceeded the prescribed amount, and on that account the appellant had contravened Section 77(3). It was not the case of the respondent that the appellant had not maintained accounts in the manner prescribed. The averment that the appellant had not included the expenditure incurred by him or at his instance in respect of the items specified therein in the light of the other averments clearly indicates that the charge was one under Section 123(6) read with Section 77(3) of the Act. In his written statement, the appellant pleaded in para 4(b) that if due to inadvertence or oversight any "minor expense" had not been included in the return, the same deserved to be ignored, and it did not amount to any corrupt practice within the meaning of Section 100(b) of the Act. He also pleaded that he had not hired the vehicles mentioned in clause (vii) of para 4(b). In our judgment, no new case, which the respondent had not pleaded in the petition, was made out by him. We are also unable to agree with the appellant that the respondent had pleaded in his petition that the expenditure referred to in item (vii) was incurred by the appellant on the date of polling, and at the trial a case was made out that it was incurred before that date. Counsel for the appellant relies upon the recitals in the list of witnesses filed in the High Court which showed that Koora Ram - owner of Truck No. PNK. 2629 was to be summoned "with the relevant record to show the amount of hire money received by him from Shri Shri Krishan (the appellant) for using the truck in connection with his (the appellant) matter' and to prove that the truck was used by the appellant "in connection with his election matter for conveying the voters and the hire money was paid to him". That statement cannot be read as meaning that it was the case of the appellant that expenditure was incurred for the purpose of transporting voters to and from the polling stations, and not on any other day. In any event, the list of witnesses filed in Court, as required by the rules of the High Court, did not form part of the petition, and there is no reason to suppose that the appellant was misled by the averments made therein. 6. The plea that an express issue relating to the corrupt practice of incurring, expenditure in excess of the prescribed amount was not raised is without substance. The relevant issues are Nos. (3) & (6): "(3) Whether Respondent 1 (appellant) hired the vehicles mentioned in para 4(b) (vii) in connection with the election work and what amount he spent on the hiring of these vehicles? (6) Whether the non-inclusion of any of the expenses proved under Issues 2, 3, 4 and 5 does not amount to corrupt practices under Section 123(6) read with Section 77 of the Representation of the People Act, 1951 ?" The plea of the respondent that expenditure was incurred by the appellant, amongst other purposes, for hiring vehicles in connection with the election and that expenditure had not been included in the return, and that if it had been included, the expenditure would have exceeded the prescribed amount under Section 77(3) of the Act, was clearly made the subject-matter of issues. 7. Section 83 prescribes the contents of an election petition, and by clause (b) it is provided that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The name of the person who committed the corrupt practice was clearly stated in the petition, the period during which it was committed was also set out in the petition, and it was also averred that the expenditure in excess of the prescribed maximum was incurred. The name of the person who committed the corrupt practice was clearly stated in the petition, the period during which it was committed was also set out in the petition, and it was also averred that the expenditure in excess of the prescribed maximum was incurred. The names of the owners of the vehicles which were hired, and the dates on which payments were made, are not disclosed, but that did not constitute any essential part of the allegations required to be made or the particulars to be disclosed in a petition, the corrupt practice being incurring or authorising of expenditure in contravention of Section 77(3). The details set out viz. the numbers of the vehicles and the hire charges paid for election work between the date of publication of the notification calling the election and the date of declaration of result amount, in our judgment, to disclosure of sufficient details or as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of such corrupt practice. No objection was raised before the High Court that the details furnished were inadequate or that the appellant was unable to defend the petition because of absence of particulars. If any such contention had been raised, respondent could have supplied the particulars under Section 86(5) of the Act. 8. It was then said that if the details had been furnished it would have been possible for the appellant to prove that some of the items disclosed as expenditure were not in fact incurred. Council said that the payment of Rs. 900 entered in the statement of expenditure as made on February 15, 1967, for hiring a tractor at the rate of Rs. 60 per day was actually not made. The argument must, in our judgment, be rejected. The appellant declared in a solemn document filed by him before the District Election Officer that he had incurred expenditure in connection with his election amounting to Rs. 5828.32 which included the amount of Rs. 900, and it was not open to him thereafter to lead evidence to prove that he had not incurred that item of expenditure. It is not his case that the inclusion of item (4) of the expenditure was by reason of any inadvertence or mistake. 5828.32 which included the amount of Rs. 900, and it was not open to him thereafter to lead evidence to prove that he had not incurred that item of expenditure. It is not his case that the inclusion of item (4) of the expenditure was by reason of any inadvertence or mistake. What he says is that he could have pleaded and proved, that even though the expenditure was not incurred, and he knew that it was not incurred, he still had shown that he had incurred the expenditure. Such a plea will not, in our judgment, be open to the appellant. 9. A charge of corrupt practice in an election petition must be clear and precise, and supported by evidence which establishes the charge beyond reasonable doubt. As observed by this Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750 in the trial of an election petition the burden of proving that the election of a successful candidate is liable to be set aside, on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the appellant, and unless it is established in both its branches, i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents or with his consent for its practice, not by mere preponderance of probability but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail. In the present case, the dispute centres upon a very narrow point. That Truck No. 2629 was used for the purpose of election of the appellant is not in dispute: the appellant has tendered in evidence three Vouchers Codes RW/5/25, RW/5/33 and RW/5/41 dated respectively February 9, February 12 and February 16, 1967, evidencing payment by him of charges for lubricating oil and petroleum used in that truck. The vouchers destroy the plea somewhat faintly raised by the appellant that the truck was used for a period of three or four days and not for eight or ten days. The appellant had to admit before the Court that Truck No. PNK. 2629 remained in his possession for eight or ten days, but he tried to prevaricate by saying that he did not remember the actual dates on which it was used. The appellant had to admit before the Court that Truck No. PNK. 2629 remained in his possession for eight or ten days, but he tried to prevaricate by saying that he did not remember the actual dates on which it was used. His statement that the truck was used only till February 9 or 10, 1967, cannot be relied upon in view of the vouchers relating to the purchase of lubricating oil and petroleum on February 12 and February 16, 1967. That this truck was procured through one Sat Narain is not denied. Sat Narain who was examined on behalf of the appellant has deposed that he had asked Koora Ram the owner of the truck to lend it for two or three days to the appellant. Koora Ram said that his Truck No. PNK. 2629 was given for use in the course of election. It was the case of the appellant that the truck was "given free of charge' and no payment was made to Koora Ram whereas it was the case of the respondent that it was procured for hire. Koora Ram deposed that he was paid Rs. 800 as hire for the use of his truck for ten days at the rate of Rs. 80 per day. Koora Ram did not produce any accounts, but he said he maintained no accounts. He also did not produce the "log-book" to show the places which his truck visited. But that default is of no material consequence, because it is not a matter in dispute that the truck was in fact used in connection with the election of the appellant. Koora Ram carries on business as a motor transport contractor, and there is no reason why he should be prepared to give his truck for use to the appellant for ten days "free of charge". Koora Ram said that he was paid hire at the rate of Rs. 80 per day, and the fuel and lubricants were to be supplied by the party who hired the vehicle. He further stated that the amount was paid to him by Sat Narain in the presence of Vaid Jee. Sat Narain denied that any such payment was made. Koora Ram said that he was paid hire at the rate of Rs. 80 per day, and the fuel and lubricants were to be supplied by the party who hired the vehicle. He further stated that the amount was paid to him by Sat Narain in the presence of Vaid Jee. Sat Narain denied that any such payment was made. Sat Narain's statement that the truck was taken for use only for two or three days is belied by the admission made by the appellant and also by the production of the vouchers for purchasing lubricating oil and petroleum. The allegation that Sat Narain and Koora Ram were related is not proved by any reliable evidence. Koora Ram was not the sole owner of the vehicle: he had a partner who had a half share therein. No rational explanation was suggested as to why Koora Ram should be willing to give his truck free of charge for as many as eight or ten days, especially at election time when vehicles of that type are in great demand. The High Court, in our judgment, was right in accepting the testimony of Koora Ram in preference to the denial of Sat Narain and the appellant. 10. It was urged that Koora Ram did not say that the money was paid in the presence of the appellant. But it is not in dispute that the appellant is a Vaidya, and Koora Ram said that the money was paid in the presence of Vaid Jee. It was never argued at any stage before the High Court nor was it sought to be elicited by further questioning that by "Vaid Jee" some person other than the appellant was intended to be referred. 11. The High Court was of the view that, having regard to the amounts which have been paid for hiring other trucks, not more than Rs. 50 per day must have been paid by way of hire charges for the truck of Koora Ram. If once, it is accepted that the vehicle was hired for a consideration, the question in the present case as to the exact amount of hire paid is not of much importance. Koora Ram says that he had given a receipt for payment: the appellant has not produced the receipt. Even if it be accepted that the amount paid was Rs. 400 only and not Rs. Koora Ram says that he had given a receipt for payment: the appellant has not produced the receipt. Even if it be accepted that the amount paid was Rs. 400 only and not Rs. 800, the total expenditure incurred by the appellant exceeds Rs. 6000, and the appellant must be deemed to have committed a corrupt practice within the meaning of Section 123(6). It is unnecessary in the circumstances to consider whether in addition to Truck No. PNK. 2629 the appellant had hired Truck No. PNK. 6019 on February 15, 1967, and had paid Rs. 50 as hire charges for that truck. 12. The appeal fails and is dismissed with costs.