# BABURAO BAGAJI KAREMORE & ORS v. GOVIND & OTHERS - **Citation:** [1974] 2 S.C.R. 429 - **Court:** Supreme Court of India - **Decided:** 1973-11-27 - **Case number:** Civil Appeal No. 901 of 1973 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baburao-bagaji-karemore-ors-v-govind-others-6146 - **Pages:** 48 ## Headnote A BABURAO BAGAJI KAREMORE & ORS. v. GOVIND & OTHERS November 27, 1973 (P. JAGANMOHAN REDDY AND P. K. GasWA!dl, JI.) 42& B Rtprmntatlon of th• Peopl• Act, 1951-S. 100 mul with sub·stcs. I, 2, 3, 3A, 4, 5 aiu1 6 of'· 123-Corrupt practlce-Scop• of. c D E F The first.~pondent was declared elected to tho Maharashtra Losislative A-.bly getting tho bighost number of votes. His election was challenged by 4 electors on various grounds of corrupt practices under s. 100 read with sub-aectiona l, 2, 3, 3A, 4, 5, and 6 of s. 123 and for contravention of the. provisions of s. 127-A of the Representation of tho People Act, 1951. It was alleged in the petition that the first respondent did not keep separate and correct account of all the expenditure incurred and authorised in connection with his election, nor were his accounts kept in accordance with s. 77 of the Act read with Rule 86 of the Conduct of Election Rules. He did not obtain vouchers for every item of expenditure incurred etc., as prescribed by s. 77 of the Rules framed thereunder. He suppressed many items of expenditure which were in excess of the authorised amount of Rs. 12,000/- • Secondly, it was alleged by the petitioners that in an election meeting held on February 18, 1972, the agent who was an active supporter of the first respondent, made a false statement of fact in relation to the personal character and conduct of respondent no. 2, as well as petitioner No. 1. It was alleged that he made a statement in his speech in that meeting that ~ondent no. 2 secured the withdrawal of the petitioner no. 1 by giving him a bribe of Rs. 60,000. According to the petitioners, the first respondent a:ot the said statement published in· a weekly dated 23rd February 1972, and the statement was published with the consent of the ftnt respondent as his election aaent. Further, it was allqed that he printed election pamphlets and posters in which he appealed to the voters on the grounds of caste and community. The petitioners gave instances to show how the propaganda was carried on by issuing pamphlets containing false statement of facts and which the first respondent or its maker either believed to be false or did not believe to be true. The first respondent denied that he made any statement in relation to the personal character or conduct of the second respondent, nor did his election agent or workers with his consent, make any such statements; nor could it be said that any of the statements were reasonably calculated to prejudice the prospect of his oponent. It was also averred that the expenditure shown by him in the return of his expenses was correct and the return was in accordance with law and the rules framed thereunder ; that there was no contravention of s. 77 Of the Act read with rule 86 of the Rules and denied that he incurred expenditure much more than Rs. 12,000/· as alleged. Although the third respondent filed his written statement, practically admitting G all the allegations in the petition against the 1st respondent, subsequently he filed an application fOr permission to withdraw the power of his counsel one Mr. Desh· mukh through whom he filed the written statement. Dcshmukh was permitted to withdraw his written statement. The~fter, the third respondent did not take any part in the proceedings. Respondent No. 4 neither appeared, nor filed his written statement. Later, the trial proceeded ex~parte against both.respondent Nos. 3 and 4. Respondent No. 2 though reproaonted, ; .. did not file his written statement. On these pleadings, as many as· 31 issues were framed by tho High. Court of which issue no, t related to a preliminary objection that the petition H was liable to be rcjer,ted for non.joinder of all the persons who had filed their nomination papers for the election. Tbe·High Cowt decided the 1st issue against the first respondent, but all other issues were held not proved by the petitioners, and therefore, the petition was dismissed with costs. Before this Court, the appe ## Text _Characters 0–39,995 of 155,168. This is a partial read: ask again with offset=39995 for what follows._ A BABURAO BAGAJI KAREMORE & ORS. v. GOVIND & OTHERS November 27, 1973 (P. JAGANMOHAN REDDY AND P. K. GasWA!dl, JI.) 42& B Rtprmntatlon of th• Peopl• Act, 1951-S. 100 mul with sub·stcs. I, 2, 3, 3A, 4, 5 aiu1 6 of'· 123-Corrupt practlce-Scop• of. c D E F The first.~pondent was declared elected to tho Maharashtra Losislative A-.bly getting tho bighost number of votes. His election was challenged by 4 electors on various grounds of corrupt practices under s. 100 read with sub-aectiona l, 2, 3, 3A, 4, 5, and 6 of s. 123 and for contravention of the. provisions of s. 127-A of the Representation of tho People Act, 1951. It was alleged in the petition that the first respondent did not keep separate and correct account of all the expenditure incurred and authorised in connection with his election, nor were his accounts kept in accordance with s. 77 of the Act read with Rule 86 of the Conduct of Election Rules. He did not obtain vouchers for every item of expenditure incurred etc., as prescribed by s. 77 of the Rules framed thereunder. He suppressed many items of expenditure which were in excess of the authorised amount of Rs. 12,000/- • Secondly, it was alleged by the petitioners that in an election meeting held on February 18, 1972, the agent who was an active supporter of the first respondent, made a false statement of fact in relation to the personal character and conduct of respondent no. 2, as well as petitioner No. 1. It was alleged that he made a statement in his speech in that meeting that ~ondent no. 2 secured the withdrawal of the petitioner no. 1 by giving him a bribe of Rs. 60,000. According to the petitioners, the first respondent a:ot the said statement published in· a weekly dated 23rd February 1972, and the statement was published with the consent of the ftnt respondent as his election aaent. Further, it was allqed that he printed election pamphlets and posters in which he appealed to the voters on the grounds of caste and community. The petitioners gave instances to show how the propaganda was carried on by issuing pamphlets containing false statement of facts and which the first respondent or its maker either believed to be false or did not believe to be true. The first respondent denied that he made any statement in relation to the personal character or conduct of the second respondent, nor did his election agent or workers with his consent, make any such statements; nor could it be said that any of the statements were reasonably calculated to prejudice the prospect of his oponent. It was also averred that the expenditure shown by him in the return of his expenses was correct and the return was in accordance with law and the rules framed thereunder ; that there was no contravention of s. 77 Of the Act read with rule 86 of the Rules and denied that he incurred expenditure much more than Rs. 12,000/· as alleged. Although the third respondent filed his written statement, practically admitting G all the allegations in the petition against the 1st respondent, subsequently he filed an application fOr permission to withdraw the power of his counsel one Mr. Desh· mukh through whom he filed the written statement. Dcshmukh was permitted to withdraw his written statement. The~fter, the third respondent did not take any part in the proceedings. Respondent No. 4 neither appeared, nor filed his written statement. Later, the trial proceeded ex~parte against both.respondent Nos. 3 and 4. Respondent No. 2 though reproaonted, ; .. did not file his written statement. On these pleadings, as many as· 31 issues were framed by tho High. Court of which issue no, t related to a preliminary objection that the petition H was liable to be rcjer,ted for non.joinder of all the persons who had filed their nomination papers for the election. Tbe·High Cowt decided the 1st issue against the first respondent, but all other issues were held not proved by the petitioners, and therefore, the petition was dismissed with costs. Before this Court, the appel~ Ian ts restricted their case to the three heads ·of corrupt practices viz. (I) under s .. 2-M602SuP.CI/74 430 SUPREME COUil T llEPOll TS ( 1974 J 2 S,C,ll. 123(4) of the Act, for publicationof false statement of facts in relation! to personal A character or conduct of the candidate or in relation to the candidature or its with· drawal; (2) under s. 123(6) fo:r incurring or authorising expenditure in contravention of s. 77 of the Act and (3) under s. 123(3) for making an appeal on the around of caste or community by printing, publishing and distributing pamphletsEx. 42 and 43. Dismissing the appeal, HELD : (!) Takin~ the last head under issues 19.and 21 which relate to two pam· phlets, Ex. 42 and 43 m which a communal appeal had been made to the electors to vote for the !st respondent there i1 no doubt that Ex. 42 and 43 made a communal appeal to Kunbi and Teli voters to vote for respondent no. !. If theoe pamphlets are proved to have been printed, published and distributed by the lit respondent then he will be gull~' t of cqrrupt practice within the meanina l>f 1ub-1. (3) of 1. 12J or the Act. Tb• Court found that they were neither printed, published or distributed by or on alf or the first nopondent nor by hi• election aaent or by his workers with bia consent or the consent or bia election aaent. On a perusal of the evidence u a whole and havina colllidered the contentions adtanced by both the partlea, it cannot be said that tho findin1 of the learned trial Judp that Exts. 42 and 43 were not printed, or published or distributed before the date or pollin1, is vitiated and on evidence, thi1 finding is clearly sustainable. (ii) M regards the second head which relates to corrupt practice under Sub-s. (6) of Sec. 123 of the Act for incurring or authorising expenditure in contravention of S. 77, the learned trial judge was of the view that it had not been shown how there was nono.eompliance of s. 77 read with s. 86 and also no arguments were advanced on this point. Every item of expenditure that has been shown in thC return has been supported by the original voucher which was not challenged. Nor anytQ.ing had been brought to the notice of the Court to show that there had been any averment in the pleadings that the accounts filed were not a true copy of the accounts maintained. Therefore, the requirements of ss. 77 & 78 had been complied with. (iii) As regards addition of Rs. 2992·95 to the amount of Rs. 70499· ll found by the High Court, it can be pointed out that there is no justification in adding this amount to the total because Exts. 86 ad 87 were given on behalf of Jan Singh and Congres&-0 parties, whose names alsp had been written on those .chits by the persons signina: them at the petrol pump. Further, in respect of the'•expenditure incurred in illuminatin~ the truck and hiring the tractor, the evidence :So adduced by the witnesses were nght1y disbelieved by the trial court. The evidence in connection with hirin' of cycles was also not reliable. Similarly the trial Court had rightly rejected the evidence in connection with Kirti Hotel expenses of Rs. 1,9S9/-. As regards the amounts paid to Laxmi Lithe works for printing etc. the High Court was right when it said that Ex. 62 was a consolidated receipt of Rs. 765/- and this amount had been included in the return of election expenses. Similarly, the High Court had rightly rejected the allegation of certain petrol expenses incurred by the 1st respondent. A sum of Rs. 1,938-50 however, is not accounted for and in absence of satisfactory explanation, this amount has to be taken as election expenses and must, therefore, be added. (iv) Even if the contention of the petitioner is accepted that Rs. 1,939/- incurred by Bhan dalal for which no account was given, Rs. 100/- paid towards the salary of Harl, the driver, Rs. 695/- in respect of Sakhare Rs. 192-40 or say Rs. 192/- in respect of petrol, Rs. 600/- regarding hire charges of a taxi, hired by the father-inJaw of the 1st respondent and Rs. 129/· incurred for Shende, respondent no. l, the several items will amount to Rs. 3,655/-. If these amounts are added to the election expenses already shown, it would come to Rs. 11,154. Even on this seeking, the election expenses are well within the limit of Rs. 12.000/-· and consequently the appellant's charge against the Jst respondent for committing corrupt practice under Sub-s. (6) of s. 123 of the Act is not established. (v) As regards the statement made ·by a protag:onist of a separate Vidarbha with the consent of the 1st respondent that the s"econd respondent paid a bribe of ~s. 60,000/- to the first respondent to withdraw from the contest and the allegation that the said false statement appeared in a paper with the consent of the 1st res .. ,pendent, the fst respondent denied that the above statement was ever made or that c D E F G H A B c :ii _,.- D F G BABURAo v. GOVIND (laganmohpn Reddy, I.) 431 it was made in his presence or with his consent1 nor did he have any knowledge that it was published in a paper with this consent or that the paper was acting as his agent. Further, the trial court held that the witnesses who gave evidence in support of the ,allegations were not present at the meeting. it was not proved that the first respon .. dent ever consented at the second respondent to make the alleged false statement. The trial court, therefore, rightly rejected the allegations. (vi) In examining. the question whether the allegations about the commission of corrupt practices by a returned candidate, the Court has to keep in view that the allegations about the commission of corrupt practices are of a 9uasi-criminal nature, the proof whereof has a double consequence of not only sett1na: aside the election of the returned candidate, but also imposing subsequent disqualiftcation debarring him from becomlnt a candidate at any election for a period of 6 years. Inasmuch as the cbara:c is a 1eriou1 one and ia of a quasi-criminal nature, the cnus of provint the eaaential lntred!ents pmcrlbod by 1ub-1.(4) of s. 123 is on tho person who au,.. them. (vil) In the p-nt case, from tho evidence, it I• not proved that the offendint atatemont wa1 made by Dhote an aient of respondent no 1, in the meetin1 or that it was made with the coment of respondent no. I, The appellants have not established the corrupt practice under this head also by any credible evidence. (viii) As regards the costs "incurred" in section 96 and 119 of. the Act, it means what is actually spent',. Accordingly, in the present case, it was incumbent in the High Court to award costs to the first respondent which costs he v.ras entitled to if be could show that he had incurred them. Admittedly, there was no proof of payment of any fee to counsel by the first respondent. As such, he will not be entitled to the amount of Rs. 400{· per diem awarded by the High Court, The first respondent cannot be allowed to file any fee certificate before this Court since he had not done earlier. Laxminarayan v. Returtiing Officer, C. A. No. 1014of1972 decided on September 28, 1973, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 901 of 1973. Appeal under Section 116A of the Representation of the People Act 1957 from the judgment and order dated the 12th February, 1973 of the High Court at Bombay, Nagpur Bench, Nagpur, in Election Petition No. 2 of 1972. K. H. Deshpande, A. She/at, N. M. Ghatate and S. Balakrislman, for the appellants. S. N. Kherdekar, V. S. Sirpurkar, K. V. Sirpurkar, C. K. Ratnaparkhi and A. G. Ratnaparkhi, for respondent no. I. Guiab Rao Patel and Shiv Pujan Singh, for respondent Nos. 2--4. The Judgment of the Court was.delivered by JAGANMOHAN REDDY, J.-The first respondent Govind Ramji Shende was declared elected a< 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 nomin'ation 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 t~e first respondent contested the election as an independent SUPREME COURT REPORTS ( 1974 J 2 S.CJt. 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 (Galkwad Group) candidates. These candidates polled res· pcctively 41,511; 24,224; 3,585; and 564 votes. As we have said earlier, the first respondent was declared elected as he had polled tho highest number of votes and with a substantial majority of 17,287 votes. Four electors from tho constituency, of whom tho first petitioner Baburao Bagaji Karemore was one, filed a joint petition challengin11 the election of the first rcspGndent 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. 127 A 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, tho date of payment, the names and addresses of payees, the serial number of bills and the names and addresses of the persons to whom outstandings arc 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. 71 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 I R. W. I, and Shivshankar Ninave l 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 ICSJ?Ondent 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 Waghaye, 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 resP?ndent and his elect!on agent Bhole, which expenses were not shown 1n the return of election expenditure submitted by the B c D E F G H 8 c D ' G H DADURAO v. GOVIND (Jaaanmoh4'1 Reddy, !.) 433 first respondent. Several other instances were also given by the petitioners and it was alleged that if all these i~ms of expenditure were included in the return of expenditure, the limit of Rs. 12,000/· would exceed. Secondly, it was alleaed by the petitioners that in an election meetina: held at Shahid Mlidan of Bhandara on February 18, 1972 oa behalf of the fl.rat reapondet J ambuwantrao Dhote, who belonpd to the Maha Vid&rbha San&harash Samiti and· was actively support· ina tha C&11didature of tho 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 boli~ve it to be true in relation to the personal character and conduct of respondent No. 2 Tirpude as well as peti· tioner No. I 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. I (Karemore) by giving him a bribe of Rs. 60,000/·. It was also alleged that those 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 peti· tioners, tho 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 11ny rate, tho statement was published with the consent of the first respon· dent and his election agent. It was again alleaed that the first respondent also got printed or caused to be printed election pamphlets and posters in which ap~al to the voters on the grounds of caste and community was made. In this connection it was averred that the electors were asked to re· frain 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 pe· titioners 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 ot 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 bis election agent make any such statements, nor could it be said that any of those statements wore reasonably calculated to prejudice the proepecta of·Tirpude'1 election. While admitting that Bhole P. W. 40 was 'hi1 election asent, he denied that he himself or his election apnt Bhole or any other person with hi1 consent or that of his election apnt committed any of the corrupt practicea allepd In tho petition, · or that the alleged corrupt practices had materlally affected the result of tho election. It was also averred that the expenditure ~ 434 SVPl!.EME COVl!.T llEPOl!.TS [ 1974] 2 s.c.L 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 contravention of the provisions of s. 77 of the Act rtad 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 I R. W. I and Shivshankar Ninave 1 R.W. 10 were his active agents and were carrying out systematic propagsnda on his behalf or were incurring expenditure wi.th his consent as well as of his election agent B.H. Bhole. All these all egations 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 teap·ondent, 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 Ga1dhane were actively carrying on a systematic electioii campaign and propaganda on his behalf or that they incurred expen' diture 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 th~ 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-0r 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 ofTirpude 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 bis 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 bis election and to prejudicially affect the election of the other contesting candi· dates. 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 state, ment relating to the personal character and conduct of Tirpude (SC' cond respondent) as well as Karemore (first petitioner) was made• either by Jambuwantrao Dhote or by him or that those statement~ 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 candi· _ date Tirpude. He denied that he was present at the said meeting B c D , H A 8 c D H BABUR/10 v. GOVIND (laganmohan Reddy, /.) 435 ~herein J:?hote is.alleged to have de!ivered the speech or that he spoke _ 1n the SB!d meeting. He also derued that the Bhandara Till)Cs 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 (I), (2), (3), (3A), (4), (5) and (6) ofihe Act. S~ende also denied that he got printed or caused to be printed election pamphlets and posters contrary to the provisions of s. 127-A of th~ Act; nor did .he make any appeal on the ground of caste and com· mumty and exploited the .communal sentiments or appealed to the voters. tp 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 pditioil 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 per· mitted to withdraw his power from the case, but the third respondent was not permitted to withdraw his written statement. Thereafter C1e third respondent did not take any part in the proceedings. Respon· dent No, 4 nei\her appeared nor filed his written statement. Con· sequently 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 plead.ilia& u !llany as 31 Issues were framed by the High Court,. of which Issue: No. I related to a preliminary objection that the petition \\!BS 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 petitio.n was dismissed with cost.ii of the first respondent together with tlie 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 counsel's 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, Respotiden't .No. ·2 was not awarded any costs as he was held to b~ 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 ex parte. 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 :- !. Under s. 123(4) of the Act for publication of false statements elf fact in relation to personal character or conduct of the candidate or in relation to the candidature or it's withdrawal. 436 SUPREME COURT REPORTS [ 19741 2 s.c.a. 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 arc as follows : 23 (a) -Did the respondent no. I make statements of facts in relation to personal character or conduct of the contesting candidate N. K. Tirpudc 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. I or his workers to be false and not believed to be true ? A B c (c) -Were these statements reasonably circulated to prejudice the prospects of the election of Tirpude ? D 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 be in that meeting make a statement of fact in relation to the personal character and conduct of Tirpudc and Karcmorc ? (c) -Was such statement false to the knowledge of '71 the maker as well as the respondent n. I"? (d) -Did Dhote in bis 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. I with his consent ? (f) -Was the statement published in the Bhandara Times purported to have been made by Dhotc, published with the consent of the respondent no. I and his election agent ? (g) -Was the Bbandara Times actins as the agent of the respondent no. I ? 1hc High Court though it held on issue No. 26 (a) that such a · mcct1111 was held at Bhandara found in respect of issues 26 (b) to (g) that they were not proved. E F G H BABURAO \I, GOVIND (Jaganmohan Reddy, 1.) 437 A Issues under the second head arc as follows : B c D E F G 2.-Did the respondent no.' I or his election agent B. H. Bholc and other persons with the consent of the respondent no. 1 Shende and his election agent commit acts enumerated hereunder : (a) (f) (II) (ill) Incurring or authorising of expenditure in contravention of section 77 of the Representation of the People Act ? Not keepin11 the account as per provisions of section 77 re.d with rule 86 of the Conduct of Election Rules ? 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 therefor 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 neaative and that on issue 2 (d) was that expenses for the proceuion dated March I, 1972 have been accounted for in the return. 3. Did tho , esp' ndent no. 1 take cycles on hire as under : (d) IS cycles for 20 days at the rate of Rs. 1 •SO 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 ? I (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. I incur and expenditure at the Kirti Hotel od Rs. 630/- between 10-2-72 to 18-2-72, Rs. 71S/- between 19-2-72 to 29-2-72, Rs. 6SO ·SS between 1-3-72 to 6-3-72 ? (e) Was thid amount paid by the respondent no. I through Sheoshankar Ninave ? (f) Was this expenditure incurred by Ninave with the consent and authorisation of the returned candidate Sbcnde H or his election ·agent ? The finding of the High Court on all these lssurct was in the neaative. · 438 SUPREME COURT REPORTS [ 1974 j 2 s.c.R.. 5. (a) Did the respondent n<'. I hire jeeps, Ambassador cars, taxies, tempos and tractors for the purposes of canvassing ... ,., in the constituency bearing nos .• (I) MPC-9029-Jeep, (2) MRG-98-Taxi, (3) MHC-191-Taxi, (4) MRG-216-Car, ; (5) MHN-4391-Car, (66) BYJ-5107-Car, (7) MHG-3105Truck, (8) MHG-3638-Tractor, (9) MHX-5080-Tractor, (10) MHG-2902-Tempq .and (11) MHG-143-Taxi? I). . l . . . -' • '\; .. : (h) vvere the above vehicles taken on·hire by thre respondent no. I and used by him.and his :workers and his election -_ agent for the purposes of election :propaganda ? (c). ·Did the ~~rkers :of the respondent ri~. I. use those vehicles ·· with his consent or hiselection agent ? The finding on issure 5(a) was that only Taxi No. MHG-191 was hired but not by the respondent no. I ; finding on issue 5(b) was that Taxi No. MHG-191 was used by the w·orkers of the respondent no. I for the purpose of election propaganda and the finding on issue 5(c} · was in the negative. 7. (d) Did the respondent no. I 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. Petrol Pump of Sale and Purchase Society at Tumsar and from Kulwal and Sons of Tumsarfor the purposes of the several vehicles used by him for an election propaganda, and (e) Was this expenditure incurred by him or his workers with his consent or with the consent of his election agent ? (f) Did the respondent no. I purchase pe1rol and diesel oil through M. T. Dalal, Kharabe, _Ninave and Saxena ? . (g) (11) Were the charges for the purchase of this petrol and diesel actually incurred by the respondent no. I through his workers? Did the respondent no. I take camouflage receipts in the name of Jana Sangh and Congress (0) parties to· conceal the true nature of the transactions, though the expenditure was incurr H • • ... , • \ ,.. A B c D E p G H -- BAB.URAO v. GOVIND (]'aganmohan Reddy, 1.) 439 (b) Was this expenditure incurred by the respondent no. I personally as well as by.his election agent and oth7r work.ers with the consent of the respondent no. I or his .election agent at various place. throughout the constituen~y including Mohadi, Warth1, Bhandara, Shahpur and Kard1? The finding on issue J l(a) is that it is not proved except the extent of Rs. 23().60 and on (b) that it does not arise except for Rs. 230-60. 14. (d) Did the respondent no. l got prerand printed posters in various sizes and got printed badges in 3 varieties cf about 10,000 in number ? (e) Did he incur an expenditure of Rs. 8,000/- for this purpose ? (f) Did the respondent nc. 1 incur an expenditure of Rs. 800 I 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 J4(d) is that respondent no. I 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. I 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 bas been stated in the return, respondent no. I did not incur any more expenditure. · 15. (a) Did the respondent no. I get more than lakhs of copies. of pamphlets and incurred thereon an amount of Rs. 1,000/- ? (b) Did the respondent no. I 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 Devocr (6) Namra Nivedan, (7) Jambuwantrao Dhote Yanch; Jagir. Bhashan, (8) Jan Jagriti Parcha, (9,l N. K. Tirpud Khahl Prashan Che Uttar dya.,(10) Teli Matdar Bandhu Bhagm1 NaAwahan, (l I) Kunb1 Matdar Badndhu Bhagini Na Awahan, (12) Khoote Kadhi Bolnar Nahi ? The finding of the High Court on 15(a) is that respondent no. i: got pnnted only the pamphlets at serial Nos. I, 3, 6, and7 incurred expenditure thereon as shown in the return, and on (b) in that respondent no.l got printed and published only the pamphlets at S. Nos, J, 3., 6 and 7. 440 16. (b) SUPllllME COURT RBl'ORTS [ 1974] 2 s.c.a. ·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.I 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 O"Xpenses 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 re:., ondent no. I 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. Motchare of Mohadi, Sakharam Narayan Singh Dipte and S. G. Balpande Alkari ? A B c D (b) Was this pamphlet published with the consent of the respondent no. 1. or his election agent ? E (c) Was it widely distributed throughout the constituency by the respondent no. I, his election agent, or his workers and agents with the consent of the respondent no. I and his election agent ? On these issues the finding of the High Court was in the negative. p 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 commnnity ? (b) Was this pamphlet published by the respondent no. I or his election agent or Tukarain Rakhlu Shende with the consent of the respondent no. 1 or his election agent ? (c) Did this pamphlet amount to an al'P"al to the voters on the basis of caste and was 1t meant to create hatred between the caste and community or cla11 and soliciting votes in the name of caste and community ? (ti) Does this amount to corrupt practice within the meanins of fection 123 of the Act ? a H A B c D E F G H BABURAO v. GOVIND (/agtmmahan Reddy, /,) 441 The finding on issue 2l(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 2l(a) amounted to an appeal to the voters on the basis of caste and meant to create hatred berween 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 thelast head underissues 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 i42 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 (I) 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. Tukaram ],lakhalu Shende, Mandwavi, Taluq, District Bhandara. Yours humbly, . (Vinit) 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 !II'• about 442 SUPREME COURT REPORTS [ 1974] 2 S.C.R. 60,000 Tell voters. In this election, Congress has not taken any notice of the active workers of the Tell community in this constituency, and in the name of Tell community, an outsider rich lady is set up from Pauni constituency. Likewise, by denying a ticket granted to Shri J(aremore, 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, Tell 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 A B and elect him by overwhelming majority. C Yours humbly, (Vinit) M.S. Motghare, Mohadi, Sakharam Narayanji Dipate, Mohadi, S.G.