# Dr. M. Chenn_a Reddy v. V. Ramchandra Rao and Anr., Civil Appeal

- **Citation:** [1971] 2 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 1970-09-10
- **Case number:** Civil Appeal No. 1094 of 1969
- **Bench:** K. S. HEGDE Aj)IQ A. N. GROVER
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-m-chenn-a-reddy-v-v-ramchandra-rao-and-anr-civil-appeal-5303
- **Pages:** 18

## Headnote

Representation of the People Act, 1951, ss. 77, 123(b) ands. 119Expenditure in excess of prescribed lilnit by candidate's party or friends
an(.
1 others H'ithout his authority-If. contra),•endon of s. 77-J/ appellate
cou.~r bound to grant costs to SitCcessful party.
A
B
Election petiiions-When Suprerne Court may interfere lVith findings
C
of fact-Burden of proof-When inference 1nay be drawn in absence of
direct evidence.
The appellant challenged the first respondent's election to the Lok
Sabha in 1967 mainly on the ground that he had committed the corrupt
practice under Section 123(6) of the Representation of the People Act.
1951, in that he ~ad incμrred or authorised the incurring of expenditure
D
in excess di the limit prescribed under Section 77. It was alleged, inleralia, that the first respondent was put up by one of the wealthiest business houses in the country which owned or controlled a large number of
companies; duririg the election campaign vast material and human resources of these companies were drawri upon by the respondent.
It was
alleged that as against the limit of Rs. 25,000 prescribed for the constituency under s. 77, several lakhs of rupees were spent by him during the
election campaign on the printing of posters, pamphlets, etc., entertainE
mer.I, the use. of about 200 jeeps and cars, the engagement of·over three
thousand employees of the various companies and for their maintenance
and travelling expenses, and on campaign meetings, trunk calls, etc. The
appellant's election petition was dismissed by the High Court, etc. The
to this Court under Section 116A of the Act,
HELD : Dismissing the appeal : The appellant had failed to establish
that expenditure in excess of the prescribed limit was incurred by
the
F
first respondent or with his consent and authority or that of his election
agents.
(i) It is not sufficient for the petitioner to prove merely that the expenditure more than the prescribed limit bad been incurred in connection
with the election. He must further prove that the excess e.;penditare was
incurred with the consent or under the authority of the returned candidate or his election agent.
The expenditure incurred by the returned
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candidate's party ·or by his friends or supporters, or by the enemies of
his rival candidates without his consent or authority cannot be taken into
consideration. [127 BJ
Ranan;aya Singh v. Baijnath Singh and Ors. [1955] 1 S.C.R. 671;
Ram Dayal v. Brijraj Singh and Ors. [1970] 1 S.C.R. 530 and Mubarak
Mazdoor v. Lal Bahadur, 20 E.L.R. 176; referred to.
(ii) This Court will not ordinarily go behind the finding of fact reachH
ed by the trial judge unless there is something basically wrong in the conclusions reached by him or the procedure adopted by him. This is not
·a rule of law but a rule of prudence. [126 BJ
\
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B
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MAGRAJ v. R. K. B!RLA (Hegde. J.)
11 9
Amar Nath v. Lnchman Sing/I & 01"'" Civil Appeal No. 717/68 decided on 23-8-1968 and Jagdev Singh v. Piatap Sing/I, A.LR. 1965 S.C.
183; referred to.
{iii) The burden of proving the comn1ission of a corrupt practice
which is pleaded is on the petitioner and he has to discharge that burden
satisfactorily. Jn doing so he cannot depend on prc;ionderence of probabilities.
The evidence must be cogent and conclusive.
It is frue that
many times corrupt practices at election may not he established by direct
~vidence and the commission of those corrupt practices may have to
be inferred from the proved facts and circumstances but the circumstances
proved must reasonably" establish that the alleged corrupt practice was
committed by the returned candidate or his election agent. [ 126 H]
Dr. M. Chenn_a Reddy v. V. Ramchandra Rao and Anr., Civil Appeal
No, 1449/68 decided on 17-12-1968, referred to.
.
(iv) If the court comes to the conclusion tht an item of expenditure
has been suppressed in the return of election expenses, the mere fact that
there is no sufficient evidence about the amount that must have been
spent is 110 ground f

## Text

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MAGRAJ PATOJ>IA
R. K. lllRLA AND ORS.
September 10, 1970
[K. S. HEGDE Aj)IQ A. N. GROVER, JJ.]
Representation of the People Act, 1951, ss. 77, 123(b) ands. 119Expenditure in excess of prescribed lilnit by candidate's party or friends
an(.
1 others H'ithout his authority-If. contra),•endon of s. 77-J/ appellate
cou.~r bound to grant costs to SitCcessful party.
A
B
Election petiiions-When Suprerne Court may interfere lVith findings
C
of fact-Burden of proof-When inference 1nay be drawn in absence of
direct evidence.
The appellant challenged the first respondent's election to the Lok
Sabha in 1967 mainly on the ground that he had committed the corrupt
practice under Section 123(6) of the Representation of the People Act.
1951, in that he ~ad incμrred or authorised the incurring of expenditure
D
in excess di the limit prescribed under Section 77. It was alleged, inleralia, that the first respondent was put up by one of the wealthiest business houses in the country which owned or controlled a large number of
companies; duririg the election campaign vast material and human resources of these companies were drawri upon by the respondent.
It was
alleged that as against the limit of Rs. 25,000 prescribed for the constituency under s. 77, several lakhs of rupees were spent by him during the
election campaign on the printing of posters, pamphlets, etc., entertainE
mer.I, the use. of about 200 jeeps and cars, the engagement of·over three
thousand employees of the various companies and for their maintenance
and travelling expenses, and on campaign meetings, trunk calls, etc. The
appellant's election petition was dismissed by the High Court, etc. The
to this Court under Section 116A of the Act,
HELD : Dismissing the appeal : The appellant had failed to establish
that expenditure in excess of the prescribed limit was incurred by
the
F
first respondent or with his consent and authority or that of his election
agents.
(i) It is not sufficient for the petitioner to prove merely that the expenditure more than the prescribed limit bad been incurred in connection
with the election. He must further prove that the excess e.;penditare was
incurred with the consent or under the authority of the returned candidate or his election agent.
The expenditure incurred by the returned
G
candidate's party ·or by his friends or supporters, or by the enemies of
his rival candidates without his consent or authority cannot be taken into
consideration. [127 BJ
Ranan;aya Singh v. Baijnath Singh and Ors. [1955] 1 S.C.R. 671;
Ram Dayal v. Brijraj Singh and Ors. [1970] 1 S.C.R. 530 and Mubarak
Mazdoor v. Lal Bahadur, 20 E.L.R. 176; referred to.
(ii) This Court will not ordinarily go behind the finding of fact reachH
ed by the trial judge unless there is something basically wrong in the conclusions reached by him or the procedure adopted by him. This is not
·a rule of law but a rule of prudence. [126 BJ
\
A
B
c
MAGRAJ v. R. K. B!RLA (Hegde. J.)
11 9
Amar Nath v. Lnchman Sing/I & 01"'" Civil Appeal No. 717/68 decided on 23-8-1968 and Jagdev Singh v. Piatap Sing/I, A.LR. 1965 S.C.
183; referred to.
{iii) The burden of proving the comn1ission of a corrupt practice
which is pleaded is on the petitioner and he has to discharge that burden
satisfactorily. Jn doing so he cannot depend on prc;ionderence of probabilities.
The evidence must be cogent and conclusive.
It is frue that
many times corrupt practices at election may not he established by direct
~vidence and the commission of those corrupt practices may have to
be inferred from the proved facts and circumstances but the circumstances
proved must reasonably" establish that the alleged corrupt practice was
committed by the returned candidate or his election agent. [ 126 H]
Dr. M. Chenn_a Reddy v. V. Ramchandra Rao and Anr., Civil Appeal
No, 1449/68 decided on 17-12-1968, referred to.
.
(iv) If the court comes to the conclusion tht an item of expenditure
has been suppressed in the return of election expenses, the mere fact that
there is no sufficient evidence about the amount that must have been
spent is 110 ground for ignoring the matter. It is the duty of the court
to assess all expenses as best it can and though the court should not enter
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into the region of speculation or merely try to guess the amount that must
have been spent, it would generally be possible to arrive at an amount
of expenditure on a conservative basis and where it is possible to arrive
E
at any such estimate, such estimated amount should be held as not shown
by the candidate in his election account. [128 HJ
Shivram Sawant Bhonsa/e v. Pratap Rao Deorao Bhonsa/e, 17 E.L.R.
37: referred to.
(v) Although the trial court, under Section 119 of the Act is under
compulsion to award cost to the successful party, there is no provision
in the Act which C'lmpels the appellate court to award costs in an elec.tion
appeal. [135 F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1094 of
1969.
F
Appeal under s. 116-A of the Representation of the People
Act, 1951 of the judgment and order dated February 17, 1969
of the Rajasthan High Court in Election Petition No. 4 of 1967,
A. S. R. Chari, G. V. Pai, H. J, Thakkar, Ja11e11dra Lal and
B. R. A garwala, for the appellant.
G
L. M. Singhvi, S.S. Khanduja, M. P. Khaitan and.P. Krishna
H
Rao, for respondent No, 1.
A. S. Bobde and A. G. Ratnaparkhi, for respondeni No. 2.
The Judgment of the Court was delivered by
Hegcle, 1.-This appeal raises the question as to the validity
of the election of Mr. R. K. Birla to the Lok Sabha, in the General
Eiection held in 1967, from the Jhunjhunu constituency in the
State of Rajasthan. The election for that constituency was held
120
SUPREME COURT REPORTS
[l 971 J 2 s.c.R.
in the month of February 1967. The notification calling upon.
A
the constituency to elect one member to the Lok Sabha was published on January 13, 1967. The last date for filing the nomination was January 20, 1967. · Several persons filed their nominations but some out of them withdrew later.
Eleven persons
including Mr. R. K. Birla (respondent No. 1) and Mr. Morarka
Radheshyam (Responde11t No. 2) contested the election.
The
B
polling took place on February
15, 18 and 20th. Counting
commenced on the 21st of that month and completed on the
23rd on which date results were declared.
According to the
declaration made by the returning officer,
respondent
No. l
socured 1,50,546 votes and respondent No. 2, 1,04,023.
It is
not necessary to refer to the other candidates in the course of c
this judgment. Respondent No. 1 was declared elected.
The appellant who is a voter in the Jhunjhunu constituency
and a supporter of Mr. Morarka challenged the election of the
respondent under s. 81 of the Representation of the People Act,
1951 (which will hereinafter be referred to as the Act) on various
grounds.
His petition was tried and dismissed by a single judge
of the Rajasthan High Court.
Thereafter he has brought this
appeal under s. ll 6A of the Act.
The election of respondent No. 1 was challenged on various
grounds. It was alleged that he had committed corrupt practices
coming under s. 123(1) (bribery), 123(4) (false statements as
regards the personal character and conduct of respci1dent No. 2),
12:3 (5) (hiring or procuring vehicles for the free conveyance
of electors) and 123(6) (incurring or authorising the incurring
of expenditure in contravention of s.
77).
The respondent
denied the allegations made against him.
At the trial of the case
most of the grounds alleged in support of the petition were not
pressed.
At present we are only concerned witn the allegation
th<it respondent No. 1 had incurreC! or authorised the expenditure
in contravention of s. 77 in connection with his election. Section
7 7 of the Act reads :
"Amount of election expenses and maximum thereof :
( l) Every candidate at an election shall. either by
<himself or by his
election agent,
keep a separate :rnd 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 ekction and the date of declaration of the
result thereof, both dates inclusive.
( 2) The account shall contain much particulars as
may be prescribed:
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MAGRAJ v. ll. x. BillLA (Hegde, I.)
( 3) The total of the said expenditure shall not exceed such amount as may be prescribed."
121
Section 123(6) declares that incurring or authorising of expenditure in contravention of s. 77 is a corrupt practice. The
maximum amount of expenditure prescribed for the Jhunjhunu
8
constituency was Rs. 25,000/-. 'I_'he return .of re~pondent No; 1
showed that his total expenditure m connection with the election
was Rs. 16,380.96 P. U it is shown that the total expenditure
incurred either by respondent No. 1 or his election agent or by
others with their consent or under their authority exceeded
Rs. 25,000/- then the election of respondent No. 1 must be held
to be void.
c
In the. election petition the petitioner alleged that respondent
No. 1 was an independent candidate; and that he was put up
by the House of Birlas, one of the wealthiest business h<'luses in
the country who own and/or control and/or manage several
companies. It was further alleged therein tl:tat respcndent No. 1
himself was a man of considerable means. Accordmg to the petiD
tioner during the course of election compaign many top Executives of several companies owned or controlled by the House of
Birlas were brought by respondent No. 1 to the constituency and
they lived there for over a month and worked for
respondent
No. 1.
Several leading members of the Birla family including
Mr. Ghanashyamdas Birla, Mr. Madho Prasad Birla, llir. K. K.
E
Birla and others stayed in the constituency and canv lssed l.br
respondent No. 1.
He further alleged that vast mnerial and
human resources of several companies of the House of Birlas
were drawn upon by the respondent No. 1 for his election compaign.
Besides the Chief Executive Officers, hundreds of other
Executive Officers and employees of several companies of the
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House of Birlas were also brought by respondent No. 1 from
several places to the constituency for campaigning in his favour.
The petitioner alleged that several lakhs of rupees were spent by
respondent No. 1 in connection with his election. Proceeding to
give particulars about the expenditure incurred he stated that the
respondent No. 1 got printed lakhs of posters, pamphlets, leaflet~
and cartoons and got them distributed throughout the constituency
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and in that connection he spent about 2 lakhs of rupees; he made
a film of some meetings held and exhihited that film in various
parts of the constituency and in that connection
11pent about
Rs. 30,000/-; he. employed a singing party which was taken by
a motor truck from village to village for the purpose of reciting
songs and performing bhajans and for that purpose spent about
H
Rs. 3,~0/-; he used alout 200 jeeps and cars for his election
cam~a1gn and in that cnnnection incurred or authorised an expend1~re of Rs; 6,00.(IDO/-; for some of these jeeps (which were
not hired) he mcurred or authorised an
expenditure of about
9-L 235 Sup C 1/7 I
122
SUPJl.EME COURT REPORTS
[1971) 2 S.C.!l.
Rs.
30,000/-
as drivers' Salaries;
he requisitioned
the · A
services of about 3,000 employees of the Birla concerns •and
for their maintenance and travelling expenses incurred more than
Rs. IO lakhs; he had 150 officers in the constituency and for
their maintenance spent about Rs. 75,000/-; he set up 80 messes
at different places for feeding his canvassers as well &s the electors
and for that purpose he spent ·about Rs. 2 lakhs; he organi!w
B
nearly 225 meetings and for that purpose incurred an expendi;ure
of Rs. 33, 750/-; for trunk calls in connection with the election,
he spent about Rs.' 5;000/-; for the repairs of the jeeps used in
connection with the election spent about Rs. 50,000/- and lastly
spent about Rs. 75,000 for hiring jeeps. Some of the items of
expenses mentioned above were not pressed at the hearing.
We
c
shall not refer to them in the course of this judgment. We shall
confine our attention to only those heads of expenditure which
. were pressed for our acceptance.
Before we proceed to consider the merits f the case, it is
neces~ary to mention that in the memorandum of appeal, the
appellant had urged that in the High Court he was not given reasonable opportunity to put forward his case. He complained
that his applications for examination of certain witnesses on commission were improperly rejected; he was not given
s?1fficient
opportunity to procure the attendance of ihe witnesses and lastly
. several documents produced by him in support of his case were
. improperly rejected. When the hearing of the appeal was taken
up we suggested to the learned Counsel for the apJY'!!dnt, Mr.
A. S. R Chari to first deal with the plea that the appellant was
·· not given reasonable opportunity to prove the case pleaded by
him. After taking up that plea and arguing the appeal for sometime Mr. ·Chari informed us that he would not press that part of
his case as he did not want the case to be either remanded or
additional evidence taken in view of the fact that the next General
Election is not far off. He informed us that he would argue the
appeal on the basis of the evidence on record. At this stage it
"may also be mentioned that no application had been made in this
Court for taking additional evidence. In view of the concession
made by Mr. Chari, we will confine our attention to the merits
of the case on the basis of the evidence on record.
Mr. Chari's case was that Mr. Morarka had incurred
the
wrath of the members of the family of Mr. Ghanshamdas Birla
due to the fact that as Chairman of the Public Accounts Committee of the Parliament he had dug up many skeletons from the
cupboards of some of the Birla concerns. It may be mentioned
at this stage that Mr. Morarka v.as representing the Jhunj.hunu
constituency in the Lok Sabha from 1962 to 1967 and earlier as
well and for a considerable time he was the Chairman of the
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MAGRAJ v. R. K. BIRLA (Hegde, J.)
123
Public Accounts Committee. The further case of Mr. Chari was
that because of the hostility of the members of the Birla family
towards Mr. Morarka, the members of that family sponsored the
candidature of respondent No. 1 who was one of their top Executives, he being the Chairman of Shri Digvijay Woollen ~ills
Ltd., Jamnagar, a Birla concern and the President of a Chemical
Company at Porbundar which is also a Birla concern. According
to the appellant, respondent No. 1 was really an
independent
candidate but in order to facilitate him to exercise his
money
power as well as the money power of the Birla concerns, he posed
as a Swatantra party candidate. It was said that a great deal' of
money was spent by the members of the Birla family and also
by the companies under their control to further election prospects
of respondent No. I. Mr. Chari further contended that respondent
No. 1 in agreement with the several members of the Binla family
and some of the top officials of Birla concerns had devised a plan
for spending money in connection with the election and the entire
expenditu~e was incurred in accordance with that plan.
At the very outset, we may mention that respondent No. 1
is not a member of Mr. G.D. Birla's family though it is established that he is one of their top Executives. It also appears from
the evidence that several members of the Blrla family as well as
other 1ndustrialists were keenly interested in the success of respondent No. 1. It may also be, as contended on behalf of the
appellant that they were keen on defeating Mr. Morarka. Even
according to the appellant the members of Birla family had both
the means as well as the cause to spend for furthering the election
prospects of respondent No. 1.
But the real question for our
decision is whether any expenditure in connection with his election
was incuned by respondent No. 1 or by his election agent or by
others with his consent or under his
a1_1 ~!1urity in excess of the
amount shown in his return and if so what that amount is ? The
expenditure incurred l::i lhe Swatantra Par.ty or other friends or
supporters of respondent No. 1 or by the enemies of Mr. Morarka
without the consent or authority of respondent No. 1 cannot be
taken into consideration as the law now stands.
In
the
election
petition,
the
petitioner
took
the
stand that respondent No: 1 was an independent candidate. It
was not suggested therein that he was only nomin,Wly a Swatantra
candidate
and
that
he
used
the
Swatailtra. party
as
a shield to cover the enormous expenditure that he planned to
it~cur duri~g the election campaign.
In fact in the election petition there is no reference to the Swatantra Party. It is now established and it is not denied that respondent No. 1 was a Swatantra
party candidate. His symbol in the election was the "Star'', the
symbol assigned to the Swatantra party by the Election Commis-
124
SUPREME COURT REPORTS
[ i 971 j2 S.C.R.
sion. The plea of the petitioner that in truth and reality, respoEldent No. 1 was an independent candidate cannot be accepted.
The charge that during the election expenditure was incurred by
various persons in accordance with a preplanned design devise:d
by respondent No. 1 and others was also not pleaded in the ele,ction -petition.
That ingenuous contention appears to have also
been put forward only with a view to make it appear that expenditure incurred by the Swatantra party or by others in connection
with repondent No. 1 's election was all done with the consent •l>r
at any rate under the authority of respondent No. 1. Some support for this contention was tried to be sought from Ex. P. W.
14/5 and Ex. P.W. 42/6. PW 14/5 is a letter from respondent
No. 1 to Mr. M. P. Birla. It is dated 30-12-1966. In Ex. PW
14/5 (the genuineness of th;s letter is in dispute) respondent
No. l is shown to have written to Mr. M. P. Birla as follow :
"I have been informed that Morarka was in Gudda
constituency yesterday.
He was touring with 4 jeeps.
Dedisinghji and Bhinisinghji have suggested that whenever I go to the constituency, I must also go at least with
four jeeps, if not more, to create an impression on the
public that I am in no way lacking in vehicles and publicity work against Morarka. SPK also informs me that
Morarka has given 5 jeeps to Sumitra, his candidate
for Jhunjhunu constituency. The same number of
jeeps have been given to his Gudda constituency candidate. He has also told that each candidate can hire
further 3 jeeps for which Morarka will pay the cost.
From this you will kindly find that he is all out to win
the election. It is also confirmed that in N awalgard he
has given S jeeps to Mintre, who is his candidate. In
view of the fact that he is now using more number of
vehicles than in the last election we spall also have to
fall in line with hin1, and, therefore all our friends like
Debisinghji, Bhimsinghji,
Raghuvirsinghji and Madan
Singhji etc. feel strongly that we must also arrange to
give at least 5 jeeps per constituency, if not more."
In reply to that letter Mr. M. P. Birla is said to have written
Ex. P-42/6.
That letter reads as follows :
"I am in receipt of your letter of 30th December
from Jaipur regarding more requirements 0f jeeps.
I
have checked up with CACO and it is not possible for
them to arrange any jeeps. Jitendra seems to have given
you wrong information. I am however negotiating with
CACO to give a cash donation for Rajasthan Swatantra
Party and the cheque to be sent through you. I will let
you know about this within a week.
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MAGRAJ v. R. K. BIRLA (Hegde, J.)
As regards your further requirement of jeeps, you
write that 10/15 jeeps can be delivered immediately
by the Rajasthan agent of Mahindra. If this is so, then
you please get these jeeps immediately in the accc;unt
of our various officers and the finance should be arranged as per our decision in Pilani. Mr. Keshab Mahindra
is out of Bombay and therefore I have not been a~le
to contact him, but in any case, as tb.ese jeeps are avai!·
able in Rajasthan for immediate use, I suppose there 1s
no need for me to talk to Mr. Keshab Mahindra.
Durgaprasadji is now reaching Pilani on the 8th or
9th and you please consult him also about our total requirement of jeeps. I agree with you that we should
not lag behind Radhesyam Murarka in our efforts. I
also understand that he is going to step up his election
efforts.
Shri R. K. Birla,
Pilani,
c.c. Sri D. P. Mandelia, Bombay."
Yours sincerely,
Sd/- MPB
125
While it is true that these letters, if they are genuine, as ~ey
are held to be by the trial court, do indicate that sometime in.
December respondent No. 1 was contemplating to secure large
number of jeeps to match the number of vehicles used by res·
pondent No. 2. But whether in fact he did so is a matter for
proof. But from this letter we are unable to spell out that there .
was a11y settled plan for financing the election campaign.
Our
attention was not invited to any other evidence to show that there·
was any settled plan for financing the election campaign. Our
taken in the petition. It is no doubt true that it appears from
the record that seven jeeps were purchased by some persons who
are said to be Birla employees on the 18th and 19th of January,
1967 through one Brijlal Ram Gopal of Jaipur.
There is .no
evid~nce. ~hatsoever !O show that those jeeps were used in connection with the election. Though the surrounding circumstances
d<? indicate that those je7ps might have been purchased through
B1rla employees for election purpose, those circumstances do not
. take ~e case beyond suspicion. In the absenee of any proof as
to their use we cannot come to any conclusion on the basis of
the purchase of those jeeps.
.Befo~e proceeding t? exam!ne urn evidence relating to the
vanous items of expenditure said to have been incurred in connection with the election, it is necessary to bear in mind the
126
SUPREME COURT REPORTS
[1971]2 s.c.~
various principles evolved by this Court to be followed while
hearing an election appeal.
Taking into consideration the fact that a plea of corrupt practice is somewhat. akin to a crimfo.al charge and the further fact
that the election cases are tried by experienced
judges of the
High Court, this Court ordinarily does not go behind the findings
of fact reached by the trial judge who had the benefit of seeing
the witnesses examined before him
unless there is
something
basically wrong iii the conclusions reached by him or the pi:oce-
<lure adopted by him.
This is not a rule of law but a rule of
prudence.
In Amar Nath v. Lachman Singh & ors.( 1) this Court
observed :
"We have already observed in more than one· decision in the present series of election appeals that in the
matter of appreciation of evidence and forming of conclusions with respect
thereto, our normal
approach
would be to accept the findings of the trial judge a11d
not to upset the same unless it was shown to us that the
trial judge had not considered all the evidence in its
proper perspective or that his inferences were not supported by the data relied on.
We propose to follow
the said rule in disposing of this appeal. We must also
bear in mind that the charge of commission of a corrupt
practice has to be proved by cogent and reliable evidence beyond any reasonable doubt and that such a
charge cannot be established by any consideration of
preponderence of probabilities."
While making these observations the learned judges
relied
on the decision of this Court in the case of Jagdev Singh v. Pratap
Singh(') .
. l n the present
appeal we do not
propose to go into the
question whether the evidence adduced by a petitioner in au
election case should establish the case beyond any reasonable
doubt but suffice it to say that that evidence must be cogent and
conclusive.
It is true that as observed in Dr. M. Chenna Reddy
v. V. Ramachandra Rao and a111'. (") that a charge of corrupt
practice cannot be equated to a criminal charge in all respects.
While the accused in a criminal case can refuse to plead and decline to adduce evidence on his behalf and yet ask the prosecution to prove its case beyond reasonable doubt such is not the
position in an election petition. But the fact rei:iains that b~rden
of proving the commission of the corrupt practrce pleaded 1s on
(I). Civil Appeal No. 717168 decided on 23-8-1968.
(2). A.J.R.1956 S.C. 183.
(3). Civd Appc.I No. 1449/68 decided on 17-12-1968.
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the petitioner and he has to discharge that burden satisfactorily.
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In doing so he cannot depend on preponderance of probabilities.
Courts do not set at naught the verdict of the electorate except
on good grounds.
Now coming to the corrupt practice of incurring expenditure
beyond the prescribed limit,
in several decisions .this Court has
ruled that it is not sufficient for the petitioner to prove merely that
the expenditure more than the prescribed limit had been mcurrued in connection with the election, he must go further and prove
that the excess expenditure was incurred with the consent or
under the authority of the returned candidate or his
election
agent.
In Rananjaya Singh v. Baijnath Singh and ors. (1) this
Court had to consider a case where a proprietor of an estate lent
the services of his Manager, Assistant Manager, 20 Ziladars _and
their peons for canvassing on behalf of his son. It ~roved
that the father was an old man and the returned candidate w11s
helping his father in the management of his estate. The question
in that case was whether because of .the canvassmg by those
persons the returned candidate had committed the corrupt practice of engaging the services of l!!Pfe than the prescribed number
of persons and further whethorihe salary and wages paid to them
should have been included in computing tl!e expenses incurred
by the returned candidate. In that case there was no evidence to
show that the services of those persons were either procured by
the returned candidate or his election agent nor was it proved that
their services were obtained with the consent or under the authority
of the returl).ecl candidate or his electon agent.
This is what this Coui:t observed in lhat case :
"There can be no doubt that in the eye of the law
these extra persons were in the employment of the fathU
of the appellant and paid by the father and they .were
neither employed nor paid by the appellant. The case,
therefore, does not fall within s. 123(7) at all and if
that be so it cannot come. within sectioh 124(4). It
obviously was a case where a father assisted the son in
the matter of the election. . These person8 were the employees of the father and paid by him for working in
the estate.
At the request of the father they assisted
son in connection with the election
which
strictly
spea~ing they were not obliged to do.
Was the position m law at all different from the position that .the
father had given these employees a holiday on full pay
and _they volu~tarily. reti~ered ~ssistance to. the appel-
!ant m COl).nect10n with his election. We thmk not. It
is clear to us that qua the appellant these persons were
(I) [1955] I S.C.R. 671.
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SUPREME COURT REPORTS
[1971]2 S.C.R.
neither employed nor. paid by him.
So far as the appelc
!ant was co11cerned they were mere volunteers and the
learned advocate for the respondent admits that employment of volunteers does not bring the candidate
within the mischief of the definition of corrupt practices as given in section 123(7). The learned advocate, however,
contended that sucil a construction
would be against the spirit of the election laws in that
candidates who have rich friends or relations
would
have an unfair advantage over a poor rival. The spirit
of the law may well be an elusive and unsafe guide and
the supposed spirit can certainly not be given elfect
to in opposition to the plain language of the section of
the Act and the rules made thereunder. If all that can
oo said of these statutory provisions is that construed
according to the ordinary, grammatical anld natural
meaning of their
language, they work
injustice by
placing the poorer icandidate'S at a disadvantage the
appeal must be to Parliament a"nd not to this Court."
The same view was reiterated in Ram Dayal
v.
Brijraj
Singh and ors.(1)
Therein this Court ruled that unJess it is estao1ished that expenditure· was incurred in connection with the
election by the candidate or his election agent or was authorised
by them, it is not necessary to be included under s. 77 of the
Act.
Expenses incurred by any other agent or person without
anything more need not be iucluded in the account or return as
such incurring of expenditure would be purely voluntary.
In Mubarak Mazdoor v. Lal Bahadur(') the Allahabad
High Court held that !the expenditure voluntarily incurred by
the friends and supporters of the returned candidate does not come
within s. 123 ( 3) even though the returned candidate was aware
· of the fact at the time of the election itself that his friends and
sympathiers were incurring expenditure in ·connection with his
election.
That is also the elfect of the decision in Rananjaya
Singh' s case ( 8). This Court as well as the High Courts have
taken the view that the expenses incurred by
a political
party to advance the prospects of the candidates put up by ii,
without more d<i not fall within s. 77. That position in law was
not disputed before us. Bui it is true as observed by the Bombay
High Court in Shivram Sawant Bhoonsale v. Pratap Rao .Deorao
Bhoonsale (') ; that if the court comes to the conclusion that
an item of' expenditure has been suppressed in the return of eJec:
tion expenses, the mere fact that there is no sufficient evidence
about the amount that must have been spent is no ground for
(I) (1970) I, S.C.R. 530.
(2). 20 E.L.R. 176.
(3). [1955] I $.C.R. 671.
(4). 17 E.L.R. 37.
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MAGRAJ v. R. K. BIRLA (Hegde, J.)
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ignoring the matter. It is the duty of the court to assess all expenses as best it can and though the court should not enter into
the region of speculation or merely try to guess the amount that
must have been spent, it would generally be possible to arrive at
an amount of expenditure on a conservative basis and where it
is possible to arrive at any such estimate, such estimated amount
should be held as not shown by the candidate in his
election
account.
A somewhat similar was the view taken by this Court in
Amar Nath's case( 1).
We shall now proceed to examine the evidence adduced in
this case on the basis of the principles enunciated earlier. But
before going to the evidence relating to the expenditure said
to have been incurred by the 1st respondent in connection with
his election, it is necessary to refer to a curious feature in this
case. In the course of the trial of the case two files (files A r.nd
B) · containing numerous documents were produced on behalf of
the petitioner. One of those files viz. file 'A' was produced by
P.W. 14 Mr. Nathuramka and !he other was produced by Mr.
Chandrashekhar, a member of Parliament through Mr. Sanghi,
an Advocate. That file is file 'B'. These files are said to contain the correspondence relating to the election of respondent
No. 1 exchanged between vanous persons, such as
respondent
No. 1, Mr. M. P. Birla, Mr. S. P. Kaithan, Mr. K. K. Birla,
Mr. Makahria etc. Mr. Chandrashekhar has not appeared in the
witness box.
Mr. Sanghi did not give evidence in the case. It
is not known how Mr. Chandrashekhar came to possess those
documents.
Now coming to file 'A', the story put forward by
P.W. 14 is that he is a business man in Bombay; he was a friend
of Mr. M. P. Birla and at his instance he worked for respondent
No. 1 during the election; after the election respondent No. I fearing that there might be a raid on his residences in connection with
the evasion of taxes or duties, handed over that file to him for
saf< keeping.
The trial court has come to the conclusion that
in that file there is not a single document relating 'lo any business transaction. All the documents therein pertain to the election
of respondent No. l and there could have been no fear of seizure
of those documents. The story put forward by P.W. 14 is on the
face of it unbelievable. It is most likely that P.W. 14 worked
for Mr. Morarka during the election as
suggested during. his
cross-examination. He seems to be a hired witness. But the fact
that a document was procured by improper or even illegal means
will not be a bar to its admissibility if it is relevant and its genuineness proved. But while examining the proof given as to its
genuineness the circumstances under which it came to be pro0) C. A. No. 717/68 decided on 23-8.1968.
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SUPREME COURT REPORTS
[l 971] 2 S.C.R.
duced into court have to be taken into consideration. Evidence
has been adduced to prove some of the documents found in files
'A' .and 'B' but the trial court has rejected that evidence excepting
in regard to a few of the documents. It has given good reasorus
in support of its conclusion. The persons who tried to prove the
signatures found on some of those documents are strangers to
those who signed them. . Their pretention as to their knowledge
about the signatures of the concerned person was proved to be
hollow.
The principal witness who sought to prove several of
the documents contained in files 'A' and 'B' is P.W. 33, Mr.
Shankerlal Roopakdas.
He is a thoroughly unreliable witness.
He appears to be a dismissed employee of one of the Birla con-
~erils. His pretention that he worked for respondent No .. I duriE1g
the election appears to be false. It is established that he was one
of the counting agents of Mr. Morarka. No application was made
to this Court to admit any documents as additional evidence in
the case.
Therefore in this appeal we are only concerned with
those documents which were admitted in evidence by the trial
court.· As found by the trial court voluminous false evidence
has been adduced in this caEe both on behalf of the petitioner as
well as on behalf of respondent No. I. Several of the answers
given by respondent No. 1 during his cross-examination were n,qt
found to be true by the trial court. From ai: over-all review of
the material on record, we are left with an uneasy feeling about
the evidence adduced in the case.
We have no doubt in our
.mind tl>at in the Jhunjhunu parliamentary constituency during
the last General Election enormous expenses had been incurred in
suppor< of the candidature of respondent No. 1.
We do not
Know whether the same was true Of Mr. Morarka though Ex. ·
P. W. 14/5 indicates such a possibility. In the election petition,
the petitioner sought not only to get set aside the election of respondent No. I, he went further and claimed the seat for Mr.
Morarka.
Mr. Morarka in his written statement supported the
pleas taken by the petitioner. Thereafter respondent No. 1 gave
notice of filing recrimination against Mr. Morarka. Immediately
thereafter Mr. Morarka withdrew his claim for the seat and contended that the petitioner could not claim the seat for him. Hence
the second relief asked for by the petitioner in his petition was
ordered to be dropped.
This cha,nge in the front is not without
significance.
This takes us to the expenses said to have been incurred by
respandent No. 1 in
connection wiih his
election
under the
various heads.
We shall now take up the expenses said to have been incurred by respondent No. 1 under various heads (only such of them
as are pres1ed before us).
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As seen earlier the petitioner's allegation in the petition was.
that respondent No. 1 incurred an expense of about six· 1akhs
of rupees for purchasing petrol and mobil oil in connection with
his election.
In his election return respondent has shown
an
expense of only Rs. 5466-89P under that head.
Though
the
petitioner alleged in his petition that respondent No. 1 had incurrecl an expense of about 6 lakhs for purchase of petrol and
mobil oil, evidence was led only about three payments .. ;n that
regard viz. ( l) a sum of Rs. 2,000/- to the proprietor of
Arjundeo Dharmal of Caltex and (2) a sum of Rs. 5,000/- and
another sum of Rs. 5,700/- to M/s. Gangaram Jamnadhar of
Burmah Shell.
No person connected with any of these pumps
was examined in support of the alleged payments.
The account
books of those firms were also not got produced. To prove the
payment of sum of Rs. 2,000/- to Arjundeo Dharmal of Caltex,
one Mr. Radha Kishan (PW 10) was examined.
His case is
that he is a f\'.iend of the son of the proprietor of the firm M/s.
Arjundeo Dharmal and he chanced to be present at the pump
when one "B. S. Choudhary of Birlas" came and paid to Arjundeo
Rs. 2,000/-. Later on he was told !Jy the propri.~tor of the firm
that it was in connection with the supply of petrol and oil to
respondent No. l. The learned trial judge was unable to place
reliance on this chance witness. iHs evidence is highly artificial.
No satisfactory explanation is forthcoming for not examining the·
PJ'Oprieior of the firm in question. Now coming to the payment
of a sum of Rs. 5,000/-, the only witness who speaks about it
is P.W. 19 Vasudev.
His evidence for good reasons have been
disbelieved by the learned trial judge.
He is clearly a partisan·
witness. For the. alleged payment of Rs. 5, 700/- on January 28.
1967, the witness examined is P.W. 21. The learned trial judge
has disbelieved this witness as well.
we see no reason to differ
from the assessment of the evidence made by the learned trial
judge. According to P.Ws. 19 and 21 they chanced to be present
at the time when payments in question were made through some
third parties. Here again neither anyone connected with the firm
was examined nor the firm's accounts were produced.
It was alleged in the election petition that respondent No. I
had spent about 2 lakhs of rupees or. printing of posters, pam·
phlets, leaflets and cartoons and the preparation of badges of
the election symbol "Star", rubber balcons
with the
slogans
"vote for Birla" and flags of sill..: and cotton clothes and their dis·
tribution as also on wall paintings. Before us no arguments were
advanced as regards the expenditure said to have been incurred
for badges of election symbol, rubber baloons and Hags.
It was
urged before us that· respondent No. l
had paid a
sum of
Rs. 22,000/- to Mis. Rai Bros. of Bhiwani for wall painting.
Several witnesses spoke to the fact that the Jhunjhunu consti:
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SUPREME COURT REPORTS
(1971] 2 S.C.R.
tuency was flooded with wall paintings seeking vote for respondent No. 1.
But strangely enough no-one con.'!ected with Rai
Bros.
was examined in the case.
The proprietor of Rai Bros.
was summoned to give evidence in the case but he did not appear
in court. On the other hand one Mr. Ganesh Dutt appeared in
court and presented a petition alleging that respondent No. 1 's
eiection agent is not allowing the proprietor of Rai Bros., Mr.
Ganpat Rai Joshi to appear in court and therefore Mr. Joshi
had asked him to produce the
account-books of thai furn in
court
Neither Mr. Ganesh Dutt was examined in the cas,e nor
the a~count-books otherwise proved.
The allegation made by
Mr. Ganesh Dutt that the election agent of respondent No. 1
did not permit Mr. Jqshi to appear in court remains unproved.
The resulting position is that there is no evidence to show that
any amount was paid to Mr. Joshi either by respondent No. 1 or
his election agent or someone with his
consent or under bis
authority.
Similarly there is no sutisfactory evidence about any
excess expenditure incurred by respondent No.