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TMI Blog1958 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, 1957 was last date for withdrawing the nomination papers. 3. The petition was filed by Shri Harish Chandra who is an elector in the Hanumanrarh Constituency. The election of the successful candidate was called in question on the allegation that he committed a large number of corrupt practices. All the allegations contained in the petition were denied by the appellant. The allegations with regard to the bribing of voters and undue influence made in the petition were found to be vague and were deleted. Issues were framed with regard to the following corrupt practices. (1) Bribery to Moti Ram Sethi candidate -- Issue No. 2. (2) Incurring or authorising of expenditure in contravention of Section 77. Issue No. 8. (3) Obtaining assistance from Government servants -- Issue No. 4. (4) Transport of voters by mechanically propelled vehicles -- Issue No. 5. (5) Publication of false and defamatory statements -- Issue No. 6. 4. The Tribunal recorded a finding in favour of the appellant on issue No. 2, but it decided the remaining 4 issues in favour of the petitioner. As a result of these findings it allowed the election petition with costs, declared the election of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bribery the making of a gift, offer or promise of any gratification was described as a major corrupt practice while the receipt of, or agreement to receive, any gratification was a minor corrupt practice. After the amendment the making of a gift, offer or promise of any gratification is a corrupt practice, but the receipt of, or agreement to receive, any gratification is no longer a corrupt practice. The same view was taken in Adityan v. Kandaswami, AIR 1958 Mad 171 (B). 8. We accordingly hold that the allegation contained in para 3 (a) of the petition did not amount to an allegation of corrupt practice against Shri Motiram Sethi. He was therefore not a necessary party under Section 82(b) of the Act and the petition was not liable to be dismissed under Section 90 (3) of the Act. 9. Let us now turn to the four issues found against the appellant. Issue No. 8 was framed by the Tribunal in the following words : "Has the respondent spent in the election an amount higher than the prescribed limit i.e., more than Rs. 6,000/- and has he deliberately omitted to show the items of the expenditure mentioned in para 3 "g'' 1 to 8 of the petition and has thus submitted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction of the nature entered therein having taken place. (4) This item is given in the petition in the following words : "That the respondent has not shown in his return of expenditure any account for procuring of the vehicles the details whereof are given in Schedule E. These vehicles were extensively used by the respondent for election propaganda and transporting voters from and to the polling stations." The petitioner produced evidence at the trial to prove that jeep No. RJK-1303 was hired by the appellant during the election for 39 days at Rs. 50/-per day and a sum of Rs. 1950/- was paid as hire for it. Evidence was also led to prove that he used some of the other mechanically propelled vehicles mentioned in Schedule E for election purposes and it was contended that it should be presumed that they were obtained on hire and reasonable hire for these vehicles should be added to the election expenses. In his return of expenses the appellant has shown the following items in this connection': 12. We shall first deal with the question whether the election expenses of the appellant exceeded the limit of Rs. 6,000/-, The petitioner examined one Gauri Shankar P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is connection, we would like to refer to the observations of their Lordships of the Supreme Court in Vasisth Narain v. Devchandra, AIR 1954 SC 513 (C): "The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to produce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election. ............... But neither the Tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the Legislature to consider." 22. In connection with the entry of 240 gallons, the learned Counsel for the petitioner drew our attention to certain circumstances. One is that Ramrikh was not examined to prove the return of 240 gallons of petrol. The burden lies on the petitioner to prove that the petrol was not returned for according to the entiles in the Kachchi and Pakki Rokars, it was returned. Another circumstance pointed out is that according to the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proprietor of the shop was examined. He stated from memory that certain cash vouchers related to purchases made in cash by one Deepchand for his jeep and tractor. He said, however, that the jeep and tractor remained with Deepchand throughout the period of election, It is, therefore; not proved that any supplies were purchased by the appellant from this shop for election purposes. 25. Next we come to the allegation that supplies worth Rs. 1500/- were purchased from Messrs. Chimanlal Mahendra Pratap of Hanumangarh and that the voucher for Rs. 220/8/- from this firm filed by the appellants is fictitious. Chimanlal P. W. 1, the proprietor of the firm, was examined. He stated that the appellant had no credit account with him and that the transactions shown in voucher for Rs. 220/8/- did not take place. We accept this evidence. But there is no proof that Sheopatsingh made cash purchases from this firm amounting to Rs, 1500/-. 26. Next we come to the allegation made in para 3 (g)(8) of the petition. The main allegation under this item, which was believed by the Tribunal, is that jeep No. 1303 belonging to Deepchand was hired by the appellant at Rs. 50/- per day and a sum of Rs. 1950/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n purposes. It was argued on behalf of the appellant that the hire at the rate of Rs. 50/- per day is excessive and that a reasonable hire for a jeep is. Rs. 12/- per day as was mentioned by him in his return of expenses to which no objection was taken by the petitioner in his petition. Atmaram was not cross-examined on the point of the rate being excessive. Nor was there any evidence led on behalf of the appellant on this point. This rate was accepted by the Tribunal and we see no reason to differ from it. Atma Ram stated that he received a sum of Rs. 1200/- from the appellant as hire for this vehicle. This allegation has been accepted by the Tribunal and we see no reason to differ from it. But we are unable to hold that a sum of Rs. 750/- was paid to Deepchand as alleged by this witness. His statement on the point is hearsay. Moreover we are. not satisfied that Deepchand owned this jeep and so we are unable to hold that he received any payment for it. We are, therefore, of the opinion that only payment of Rs. 1200/-in respect of jeep No. 1303 to Atmaram has been proved. 27. Coming to the other vehicles, jeep N. 9990 belonging to Manniram Sihar of Chutala shown at Serial Number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les did not intend to lend them gratuitously to the appellant. 31. This brings us to the next point which is that assuming that a vehicle is lent gratuitously to a candidate is reasonable hire for the vehicle to be shown as election expenditure? In other words, is the reasonable hire of a vehicle lent gratuitously an expenditure which the candidate should be presumed to have incurred or authorised? To our mind, it is not. One incurs expenditure when one actually spends money. One authorises expenditure when one incurs a pecuniary liability. In borrowing a vehicle, which the lender lends gratuitously, no pecuniary liability is incurred. On behalf of the petitioner, it was argued that if such a construction is adopted, candidates, who have friends and relations, would have unfair advantage over a poor rival. A similar argument was repelled by their Lordships of the Supreme Court in Rananjaya Singh v. Baijnath Singh, AIR 1954 SC 749 (D) in the following words : "The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will be deemed to have authorised. 35. The reasonable hire of the above vehicles cannot, therefore, be added to the election expenditure of the appellant. The appellant himself has shown a sum of Rs. 1238/- in his return of expenses as reasonable hire for vehicles borrowed gratuitously from his friends and relatives. This amount has been wrongly shown as election expenditure and in working-out the total amount of expenditure incurred or authorised by him, this sum must be deducted. 36. Deducting Rs. 1238/-, from the sum shown by the appellant in his return of expenses and adding Rs. 1200/-, the total expenditure, which he is proved to have incurred, comes to Rs. 4190/6/6. This being less than Rs. 6,000/-, Sub-section (3) of Section 77 of the Act was not contravened. 37. The Tribunal found that the appellant also contravened Sub-section (1) of Section 77 inasmuch as he did not maintain a separate and correct account of the expenditure incurred or authorised by him in connection with the election between the date of publication of the notification calling the election, and the date of declaration of the result thereof. In this connection, some observations have been made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, which was authorised, that is, for which liability had been incurred and some amount was outstanding. This account was, therefore, not in accordance with Rule 131. The appellant stated that the diary was with him. No allegation with regard to the non-maintenance of a separate account was made in the petition. The appellant was, therefore, not bound to produce the diary before the Tribunal. If the Tribunal thought that its production was necessary, it should have ordered the appellant to produce it and he would have done so. 38. The Tribunal held that a contravention of Sub-sections (1) and (2) of Section 77 of the Act amounts to a corrupt practice. This finding has been challenged on behalf of the appellant before us. The learned counsel for the petitioner tried to support it. 39. Under Section 123(6), it is only the incurring or authorising of expenditure in contravention of Section 77 of the Act which amounts to a corrupt practice. The non-maintenance of true accounts has not been laid down as a corrupt practice. An entry is made in the account book only after an expenditure is incurred or authorised. The corrupt practice consists of incurring or authorising of expenditure i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in a wider sense and the term ''Revenue Officer" should be taken to mean any officer employed in the business of any sort of revenue by the Union or the States. This definition will thus include non-gazetted officers of all the departments dealing with Union or State revenue. All the gazetted officers of the Government come under Clause (a) to whatever department they may belong. The term "revenue officer" will thus include such officers of the Income Tax, Sales Tax and Irrigation Department as well as the Land Revenue Department, who are employed in the business of revenue. The term 'officer' has also been used in a wider sense and means an office-holder. Every office-holder of a Revenue Department, who has any connection with the assessment or collection of revenue or with the maintenance of revenue records will thus come within Clause (f) of Section 123(7) of the Act. 44. Ghanshyamdass is the Reader of the Colonisation Tehsildar whose duty it is to allot Government lands to tenants and to fix rent on them. This rent is revenue to the state. Ghanshyamdass is thus employed in the business of revenue and is a Revenue Officer within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the particulars given were not sufficient inasmuch as the names of persons hiring or procuring the vehicles, the sums paid and the names of the voters carried were not mentioned. This objection was upheld by the Tribunal and instance No. 1 was accordingly deleted by its order 3-9-57. The argument, which appears to have appealed to the Tribunal on this point, was that the names of the agents, who were alleged to have committed the corrupt practice in question, had not been mentioned and so it was lacking in necessary particulars. This objection was not taken in the written statement. We are of the opinion that in the circumstances the Tribunal should not have deleted instance No. 1 shown in Schedule C without giving an opportunity to the petitioner to name his agents. Evidence was led to prove the remaining 10 instances cited in Schedule C. The Tribunal discussed only three of these instances in its judgment and held that instance No. 2 had been proved without any doubt. The appellant challenged this finding. On behalf of the petitioner, it is argued before us that all the ten instances have been proved satisfactorily. We proceed to deal with them one by one. 59-60. (Thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above, two of the vehicles, namely, jeeps Nos. 835 and 849 were procured by the appellant himself. Some others were procured by his agents. The remaining vehicles were procured by other persons. The question which arises for consideration is whether it can be said in the circumstances of the present case that the corrupt practice in question has been committed by the returned candidate or by any person with the consent of the returned candidate as required under Section 100(1)(b) of the Act. The relevant part of Section 100 as it stands now runs as follows : "Section 100. Grounds for declaring the election to be void : (1) Subject to the provisions of Sub-section (2), if the Tribunal is of opinion (a) xx xx xx (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) xx xx xx (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected ; (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or acceptance can be express or implied, in the same way consent can be express or implied. Where the consent is implied, it is to be inferred from facts and circumstances. But whether it is express or implied, consent is only consent when two or more persons agree upon the same thing in the same sense. 64. In the Act as it stood before its amendment by Act No. 27 of 1956 instead of the word 'consent,' the word 'connivance' was used. Connivance is also consent in the legal sense. "To consent" means, according to the Concise Oxford Dictionary, "to acquiesce" or "to agree." If a person consents to a tiling and the consent is indicated by words, we say that he agrees to the thing. If, on the other hand, the consent is indicated otherwise than by words, we say that he acquiesces in it. The term 'tacit consent' is sometimes used for consent indicated otherwise than in words. 'Tacit' means unspoken or silent. To connive at a thing means to wink at it. The word 'Connive' is only used in connection with a tiling which is unlawful or immoral which one ought to oppose. It implies knowledge and lack of opposition where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 100. Sub-section (2) to Section 100 can only be regarded as a proviso to Clause (d) of Sub-section (1) and will Only be applicable to those cases where a corrupt practice of a trivial and limited character has materially affected the result of election. For example, if votes polled by the successful and the defeated candidates differ only by 30 and it is held by the Tribunal that more than 30 voters of the successful candidate were transported by a mechanically propelled vehicle and further that they would not have voted for him if they had not been so carried and the other conditions of Sub-section (2) are fulfilled then the case would fall under Sub-section (2) and the election shall not be held to be void. 67. Lastly we come to the publication of a false and defamatory statement (Issue No. 6). The relevant allegation is contained in para 3 (e) of the petition in which it was alleged that the appellant got published a pamphlet under the signature of his agent Raghunathsingh alias Raghunath Rai, which both of them knew and believed to be false and at any rate did not believe to be true, relating to the personal character and conduct of Shri Ramchander, the defeated candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been shown to be completely false. Sheopatsingh himself admitted in cross-examination that at the time of election he did not know whether Ramchander Dharnia was rightly prosecuted or wrongly prosecuted for the murder of Uda Naik. 69. The allegation contained in para 2 of the pamphlet was that the defeated candidate brought a false case against one Mohansingh of Sulingarh from which he extricated himself with great difficulty. It has come in evidence that the defeated candidate filed a complaint under Section 448, I. P. C. against Mohansingh who was convicted by the trial Court but on appeal he was acquitted by the Sessions Judge. Ramchandar, the defeated candidate, stated that the case was true. He was allowed to give the contents of the judgment of the Sessions Judge orally. He should have filed a copy of the judgment and allowed the judgment to speak for itself. The oral statement of the witness about the contents of the judgment cannot be looked into. On the evidence on record, therefore, we hold that Sheopatsingh might have believed that Mohansingh had been falsely prosecuted. 70. The allegation contained in para 17 was that the defeated candidate could not Dear to see the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to the personal conduct of the defeated candidate. There can be no doubt that this statement was reasonably calculated to prejudice his prospects as the number of Sikh voters in the constituency was considerable. 71. The second question which we have to consider under this issue is whether it has been proved that the respondent got the pamphlet printed and whether he himself distributed it or got it distributed through his agents. The Tribunal held that there was no evidence to prove that the appellant got the pamphlet printed. This finding was not challenged before us. So far as the question of distribution is concerned, it was contended on behalf of the appellant that we should not consider the evidence produced by the petitioner to prove that the appellant himself distributed the pamphlet as the issue which was framed by the Tribunal excluded the consideration of such evidence. The issue framed by the Tribunal on the point was in the following words: "Did the respondent get published and widely circulated the enclosed pamphlet under the signature of his agent Raghunath Singh alias Raghunath Rai etc. If it is so, what is its effects on the election petition?&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Lalsingh P. W. 24 is a member of the Executive Committee of the Central Akali Dal. The Dal had issued instructions to him to support the congress candidate. He canvassed for the defeated candidate amongst the Sikhs. Apart from that the witness is almost illiterate. He can only sign his name in Gurmukhi. He does not know Hindi at all. He says that he got the pamphlet read over to him but he did not remember its contents except para 17. We cannot, therefore, be sure whether the pamphlet of which Lalsingh spoke was the same which was mentioned in the petition. He did not file a copy of the pamphlet which was handed over to him. His evidence also is therefore, useless. So far as Bholasingh P. W. 26 is concerned, he did not say that he saw Sheopatsingh distributing the pamphlet. He only saw Thanasingh distributing it. So far as Sheopatsingh is concerned, his allegation was that he orally did propaganda against the defeated candidate by saying that he could not see members of the Sikh community even with a blind eye. This allegation was not made in the petition and we are unable to consider it. We therefore, hold that it has not been proved that the appellant distributed the pamphlet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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