TMI Blog1970 (9) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... bruary 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. 1 secured 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 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 repondent 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. 11 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 respondent No. 2), 123(5) (hiring or procuring vehicles for the free conveyance of electors) and 123(6) (incurring or authorising the incurring of expenditure in cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged that vast material 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 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 and in that connection he spent about 2 lakhs of rupees; he made a film of some meetings held and exhibited that film in various parts of the constituency and in that connection spent 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 Rs, 3 000/-; he used about 200 jeeps and cars for his election campaign and in that connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal 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 was representing the Jhunjhunu constituency in the Lok Sabha from 1962 to 1967 and earlier as well and for a considerable time he was the Chairman of the Public Accounts Committee. The further case of Mr. Chari Was that because of the hostility of the members of the Brila 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 Mills 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 mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 devised by respondent No. 1 and others was also not pleaded in the election 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 or 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 30-121966. In Ex. PW 14/5 (the genuineness of this letter is in dispute) respondent No. 1 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 Bhimsinghji 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 publicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that sometime in December respondent No. 1 was contemplating to secure large number of jeeps to match the number of vehicles used by respondent 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 any 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 evidence whatsoever to 'show that those jeeps were used in connection with the election. Though the surrounding circumstances do indicate that those jeeps might have been purchased through Birla employees for election purpose, those circumstances do 'not take the case beyond suspicion. In the absence of any proof as to their use we cannot come to any conclusion on the basis of the purchase of those jeeps. Before proceeding to examine the evidence relating to the various items of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oving the commission of the corrupt practice pleaded is on the petitioner and he has to discharge that burden satisfactorily. 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 incurred 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.( [1955] 1 S.C.R. 671) 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 was proved that the father was an old man and the returned candidate was helping his father in the management of his estate. The question in that case was whether because of the canvassing by those persons the returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y work injustice by placing the poorer candidates, at a disadvantage the appeal must be to Parliament and not to this Court. The same view was reiterated in Ram Dayal v. Brijraj Singh and ors.( (1970) 1, S.C.R. 530) Therein this Court ruled that unless it is established 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 included in the account or return as such incurring of expenditure would be purely voluntary. In Mubarak Mazdoor v. Lal Bahadur(2 ) 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 effect of the decision in Rananjaya Singh's case([1955] 1 S.C.R. 671. ). This Court as well as the High Courts have taken the view that the expenses incurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 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 safe keeping. The trial court has come to the conclusion that in that file there is not a single document relating to any business transaction. All the documents therein pertain to the election of respondent No. 1 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 he 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 if came to be produced 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 reasons in support of its conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n incurred by respondent No. 1 under various heads (only such of them, as are pressed before us). As seen earlier the petitioner's allegation in the petition was that respondent No. 1 incurred an expense of about six lakhs of rupees for purchasing petrol and mobil oil in connection with his election. In his election return respondent has shown an expense of only ₹ 5466-89P under that head. Though the petitioner alleged in his petition that respondent No. 1 had incurred an expense of about 6 lakhs for purchase of petrol and mobil oil, evidence was led only about three payments in that regard viz. (1) a sum of ₹ 2,000/to the proprietor of Arjundeo Dharmat of Caltex and (2) a sum of ₹ 5,0001and, another sum of ₹ 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 ₹ 2,000/to Arjundeo Dharmal of Caltex, one Mr. Radha Kishan (PW 10) was examined. His case is that he is a friend of the son of the proprietor of the firm M/s. Arjundeo Dharmat and he chanced to be present at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court. Neither Mr. Ganesh Dutt was examined in the case nor the account-books otherwise proved. The allegation made by Mr. Ganesh Dutt that the election agent of respondent No. 1 did not permit Mr. joshi 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 his authority. Similarly there is no satisfactory evidence about any excess expenditure incurred by respondent No. 1 in publishing pamphlets, leaflets and handbills though as many as 56 different types of pamphlets appear to have been distributed during the election soliciting votes either for respondent No. 1 or for the Swatanfra party. There is no evidence as to who issued those pamphlets. As seen earlier, respondent No. 1 had the powerful support of the members of the Birla family as well as of some other industrialists. Evidence was adduced to show that 76,000 copies of a cartoon-two starved out and emaciated bullocks evidently depicting that Congress rule has brought in nothing but poverty were got printed by one Mr. Saxena, an Executive in a Birla concern at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able expenses were incurred for arranging meetings. Here again there is no reliable evidence to show the amounts that were likely to have been spent for arranging the meetings or even to connect respondent No. 1 with the expenditure incurred in connection with those meetings. Though the petitioner has failed to establish that any of the items of expenditure alleged to have been incurred by respondent No. 1 was in fact been incurred by him, there is voluminous and fairly convincing evidence to show that the constituency was flooded with election literature including posters, cartoons, painting of the walls, leaflets, handbills etc. on behalf of respondent No. 1. There is also evidence to show that large number of vehicles were used in connection with the election. It is clear from the evidence on record that money was freely and liberally spent to further the prospects of respondent No. 1. In addition to this there is also evidence to show that in about December, 1966. an account was opened in the Pilani branch of the United Commercial Bank in the name of P.W. 32, Mr. Raghuvir Singh who was at that time the President of Jhunjhunu District Swatantra Party. On the very day of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gress party, the Jan Sangh and several other splinter groups. It has even given contributions to individual candidates as is seen from its accounts. In fact the contribution given by C.A.C.O. to the Congress party is much larger than maid by it to the Swatantra party. Mr. Tibriwalla was a member of the Swatantra party. From the facts proved it is not possible to come to a definite conclusion that be acted on behalf of respondent No. 1. If one looks at the way C.A.C.O. was distributing amounts during the election as donations, one is constrained to feel that those payments were intended as investments. Possibly C.A.C.O. did what other business concerns are doing. Such donations to political parties whether done in the crude way in which C.A.C.O. did or in a more subtle way would undermine the very foundation of our society. No democracy can survive, however ideal is the Constitution by which it is governed, if the principles underlying the Constitution are ignored. The best democratic Constitution can go the way the Weimar Constitution went. It is true that many times corrupt practices at election may ,not be able to be established by direct evidence and the commission of those c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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