- (1.) THIS is an appeal under Section 116a of the Representation of the People Act No. 43 of 1951 (hereinafter called the 'act') by Shri Sheopatsingh against the decision of the Election Tribunal at Ganganagar declaring his election to the Rajasthan Legislative Assembly to be void on a petition under Section 81 of the Act by Shri Harish Chandra.
(2.) THE election for the membership of the Rajasthan Legislative Assembly from Hanumangarh Constituency was held in the month of February and March 1957. Shri Sheopatsingh and Shri Ramchandra contested the election. Shri Sheopatsingh polled 18,530 votes and Shri Ramchandra got 17,136 votes. Shri Sheopatsingh was accordingly declared elected by the Returning Officer on 18-3-1957. Polling took place on alternate days commencing from 25-2-57 and ending on 11-3-57. 4th February, 1957 was last date for withdrawing the nomination papers. 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. 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 appellant void and disqualified him for a period of six years for voting at any election under Section 141 of the Act. Against this decision the present appeal has been filed. It is urged that the findings of the Tribunal are erroneous. In para 3 (a) of the petition it was alleged that the appellant secured the withdrawal of Shri Motiram Sethi who had also filed his nomination paper to contest this election by paying a bribe of Rs. 3,000/ -. Shri Motiram Sethi withdrew his nomination paper on 4-2-57 the last date for withdrawal. The Tribunal found that this allegation had not been proved & this finding was not challenged before us. Issues were framed on 14-8-57 and the evidence for the petitioner was recorded from 13-9-57 to 18-11-57. When the petitioner closed his evidence the appellant moved an application on 18-11-57 that Shri Motiram Sethi was a necessary party under Section 82 (b) of the Act as an allegation of corrupt practice had been made against him and the petition was liable to be dismissed under Section 90 (3 ). The Tribunal held that only the giving of a bribe was a corrupt practice under Section 123 of the Act and not the taking of it and as such no allegation of corrupt practice had been made in the petition against Shri Motiram Sethi. On behalf of the appellant it is argued that the decision of the Tribunal on the point is erroneous. Bribery to a candidate is defined under Section 123 (1) (a) as follows: " 123. Corrupt practices.-- The following shall foe deemed to be corrupt practices for the purposes of this Act:- (1) Bribery, that is to say, any gift, offer Or promise by a candidate or his agent or by any other person, of any gratification to any person whomsoever, with the object directly or indirectly of inducing (a) a person to stand or not to stand as, or to withdraw from being, a candidate, or to retire from contest, at an election"; The question as to whether the taking of a bribe on the part of a candidate amounted to a corrupt practice under the Act came up for consideration before a Division Bench of this Court at Jaipur in Durga Prasad v. Mukat Behari Lal, Civil Misc. Appeal No. 102 of 1957 (A ). It was held that it did not. It was pointed out that in the Representation of the People Act, 1951, before amendment there were two classes of corrupt practices --major (Section 123) and minor (Section 124 ). With respect to 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 ). 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. 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 false return of expenses. '' The relevant corrupt practice has been defined in Section 123 (6) thus : " the incurring or authorising of expenditure in contravention of Section 77" Section 77 reads as follows : " 77 (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive. (2) The account shall contain such particulars, as may be prescribed. (3) The total of the said expenditure shall not exceed such amount as may be prescribed. " 10a. The maximum amount of election expenses which may be incurred by a candidate for a single member constituency in Rajasthan is laid down in Schedule III to the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, as Rs. 6,000/ -. In para 3 (g) of the petition it was asserted that the petitioner had deliberately omitted to show a number of items of expenditure, which he had actually incurred, in his return of election expenses. The following are the items on which evidence was produced at the trial of the election petition and which were referred to before us during the course of the arguments : (1) Rs. 1,500/ -. Price of petrol, mobil oil, powerine, high speed diesel oil purchased from firm Parasram Subhkaran of Sangria between 5-2-57 and 11-3-57. In the return the following two items were shown as payment for purchase of petrol etc. , from this firm by the appellant. (i) Purchase of petrol, mobil oil etc. Rs. 1661-3-9 & (ii) Purchase of high speed diesel oil and powerine. Rs. 414-6-9 (2) Rs. 200/ -. Price of powerine and high speed diesel oil from Begraj Agarwal, Sadulshahar purchased between 5-2-57 and 11-3-57. (3) Rs. 1500/ -. Price of petrol, diesel oil powerine mobil oil etc. , purchased from Chimanlal Mahendra Pratap of Hanumangarh. In his return the appellant has shown only the following items of payment to this firm : Purchase of petrol and mobil oil etc. Rs. 220-8-0 The petitioner alleged that the appellant had no credit account with the above firm and the receipt for Rs. 220/8/- which he had filed was a fictitious one, no transaction 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 he 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': (i) Reasonable hire for jeep No. RJk 849 from 9-2-57 to 11-3-57 at Rs. 12/- per day. . . . Rs. 360/ (ii) Reasonable hire for David Brown's Tractor from 11-2-57 to 11-3-57 at Rs. 10/- per day. . . . Rs. 290/ (iii) Reasonable hire for jeep No. RJK-835 from 5-2-57 to 11-3-57 at Rs. 10/- per day. . . . Rs. 408/ (iv) Reasonable hire for jeep No. RJK 1790 from 24-2-57 to 11-3-57 at Rs. 12/- per day. . . . Rs. 180/- 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. W. 29 who is the manager of the joint Hindu family firm Parasram Subhkaran, which is owned by him and his two younger brothers Parasram and Subhkaran. He produced the Kachi Rokar, Pacci Rokar and the stock-book of the firm. His attendance and the production of these account books were secured with some difficulty. He was served for 13-9-57 but he did not turn up. A warrant was issued for 19-9-57. He appeared on that date but did not bring the Kachchi Rokar. He stated that by mistake he had omitted to bring it. He was directed to produce it on the next day but he did not produce it. He alleged that he had sent for it but that the man who brought it from Sangria had not met him. He ultimately produced it on 21-9-57. It contains the following entry of 21-2-57 : " Ch. Ramrikh Dingarh wale ke nam Petrol drum 6, gallon 40, Tumhari Dukan Upar Rhejyo gallon 240. . . . . Powerine Drum 1, gallon 48, High Speed Diesel Drum 1, gallon 48, Mazduri-/6/ -. " The upper portion of the entry is in the hand of Gaurishankar and the lower portion is in the hand of Parasram. Against the entire entry in the margin the words "pachho Ayo" (returned) are noted in the hand of Gaurishankar. This entire entry does not find place in the Pacci Rokar. Whatever it consumes, it cannot be said that no supplies at all were needed by Ramrikh between 5-2-57 and 18-3-57. Now if Gaurishankar had remained at his shop all the time during this period and had personal knowledge of all the entries made in the Kachchi Rokar relating to Ramrikh's Khata as he claimed to have at one stage then ho would have had knowledge as to whether the six drums of petrol entered in the Kachchi Rokar on 21-2-57, were returned or not. On behalf of the petitioner, it was argued that Gaurishankar was hostile to him and was under the influence of the appellant. He does not appear to have been completely under the influence of either party. In any case we cannot read in his statement more than what he says. If Gaurishankar was not willing to give all the necessary evidence to prove the case of the petitioner then it was for the petitioner to have produced some other evidence to prove his case. The verdict of the electorate can only be set aside on clear proof of the allegations made against the successful candidate. In this 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. "
(3.) 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 return of expenses, jeep No. 835 was in service from 5-2-1957 to 11-3-1957 and jeep No. 849 from 2-9-1957 to 2-11-1957, but that the account book of the firm shows that these jeeps took supplies only on two dates each from the firm and that they must have been fed from the stock of 240 gallons stored at the shop of Ramrikh. One witness Rampratap, P. W. 36 was examined on behalf of the petitioner. He stated that petrol etc. , belonging to Sheopatsingh was kept at Ramrikh's shop and he used to take diesel oil sometimes from Ramrikh's shop and sometimes from Parasram's shop. He said that petrol, diesel oil etc. , belonging to Sheopatsingh were kept at Ramrikh's shop. He claimed to be the driver of tractor No. 1318 (Ferguson) of one Surajaram which he alleged had been borrowed by the appellant for the election. When he came to give evidence, he was not in the service of Surajaram. There is no evidence to corroborate the fact that he was ever in the service of Surajaram. There is no mention of Surajaram's tractor or of this witness in the account books of the firm Parasram Subhkaran. He also stated that he took voters in the tractor from different villages to the polling stations during the election. Such witnesses can easily be hired. We are not impressed by the evidence of this witness and are unable to rely on it. We, therefore, find that it has not been proved that any vehicle employed by the appellant for election purposes drew any supply of petrol or petroleum products from the shop of Ramrikh. From the circumstance that jeeps Nos. 835 and 849 drew supplies from the firm only on two dates, we are unable to infer that they must have drawn supplies from the shop of Ramrikh. Having fully considered all the evidence and circumstances on record, we are unable to hold that 240 gallons of petrol was purchased by Sheopatsingh from the firm on 21-2-1957 and was utilised by him for election purposes without showing it in his accounts. We are accordingly of the opinion that the allegation made in para 3 (g) (1) of the petition has not been proved. Next we come to the allegation that petroleum products worth Rs. 200/- were purchased from Meghraj Agarwal of Sadulsahar. The Tribunal did not hold that this allegation has been proved, but the learned counsel for the petitioner referred to the evidence produced on the point Satyanarain P. W. 28, the 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. Next we come to the allegation that suplies 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/ -. 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/- was paid as hire for it The case of the appellant on this point was that he neither used jeep No. 1303 nor used any jeep driven by Atmaram P. W. 18. Deepchand was examined in defence by the appellant as D. W. 17. He stated that he did not own jeep No. 1303 and that he did not ever engage P. W. 18 Atmaram as a driver. When Krishna Beharilal P. W. 22 appeared in the witness-box with the register of Registration of Vehicles, neither party asked him as to who was the owner of jeep No. 1303. Deepchand is admittedly a friend of the appellant. He was his polling agent. The story given by Atmaram was that his master Deepchand directed him to proclaim himself to be the owner of the jeep and to let it on hire to Sheopatsingh for election purposes as he was afraid that if he did not do so, he would have to lend his jeep gratuitously to the appellant. Under this direction Atmaram is alleged to have hired this jeep to the appellant at Rs. 50/- per day. Jeep No. RJK-1303 heads the lists of vehicles given in Schedule E but the name of the owner has not been shown against it. It is shown against most of the vehicles in the lists. The appellant was likely to know whether or not his friend Deepchand had a jeep. The story of Atmaram that he had been authorised by Deepchand to proclaim himself as the owner of it therefore appears to be rather thin. In view of the above facts, we are not prepared to hold that Deepchand has been proved to be the owner of jeep No. RJK-1303. But the fact that Atmaram driver or jeep No. 1303 or both figure in nine entries in the Kachchi Rokar pertaining to the Khata of Ramrikh during the material period and the absence of a reasonable explanation from the appellant lead: us to hold that this jeep was in the possession of Atmaram and was used by the appellant for election purposes. These entries commence from 11-2-1957 and end on 9-3-1957. All these entries have been earmarked as relating to Sheopatsingh in the Pakki Rokar. An attempt was made by the learned counsel for the appellant to argue that Atmaram shown in the books might refer to Atmaram, Chairman of the District Board. This argument cannot be put forward as Sheopatsingh stated specifically that he did not use the jeep of Atmaram Chairman. We, therefore, hold that it has been proved that the appellant used jeep No. 1303 which was in the possession of Atmaram driver P. W. 18 for election 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. Coming to the other vehicles, jeep N. 9990 belonging to Manniram Sihar of Chutala shown at Serial Number 4 in Schedule E drew supplies from Messrs. Parasram Subhkaran and either the number of the jeep or the name of the owner appears in some entries between 21-2-1957 and 11-3-1957 in the Khata of Ramrikh. We conclude from this entry that the appellant used this vehicle for election purposes as he has not given any satisfactory explanation as to why this entry appeared in his account. For the same reason, we hold that the following vehicles were used between the dates mentioned against them by the appellant for election purposes. 1. Prem Jaildar's Tractor on 15-2-57. 2. Prem Jaildar's jeep on 18-2-57. 3. Khialiram's tractor from 25-2-57 to 8-3-57. 4. Ramrikh's tractor on 6-3-57. 5. Tractor RJK 2e from 4-3-57 to 11-3-57. 6. Bhinya Ram's tractor on 19-2-57 and 7. Jeep No. 1807 on 19-2-57. ;