Civil Appeal No 1679 of 1979
From the Judgment and Order dated 15 5 1979 of the Gauhati High Court in Election Petition No 778
SS Ray NR Chowdhary and Parijath Sinha for the Appellant
R Karaanjawala and PH Parekh for Respondent No 1 632 The Judgment of the Court was delivered by FAZAL ALI J
This election appeal is directed against a judgment dated May 15 1979 of the Gauhati High Court by which the High Court accepted the election petition filed by the petitioner Aju Newmai and set aside the election of the appellant NC Zeliang who had been declared elected from the No 6 Tening Assembly Constituency of the State of Nagaland
For short the respondent No 1 namely the election petitioner in the High Court shall be hereinafter referred to as the Petitioner  and NC Zeliang who had won the election as the appellant 
The elections were held in the year 1977 and were contested by the petitioner the appellant and others
The appellant contested the election as a Congress candidate with the symbol of cow and a calf  whereas the petitioner contested on the ticket of the United Democratic Front UDF whose election symbol was Cock 
The other candidates in the field were Jangkhosei and Paokholun
We are however not concerned with these candidates
It appears that the appellant polled 2224 votes as against the 2207 votes polled by the petitioner and thus defeated the petitioner by a margin of 17 votes the total votes in the constituency being only 5000
The poll took place on 8 11 1977 and the last date for filing the nomination paper was 24 10 1977
Being aggrieved by the declaration of the appellant as having been duly elected to the Assembly the petitioner filed an election petition on 5 1 1978 in the High Court challenging the election of the appellant on several grounds including the allegation that he had filed a false return of the expenses and had incurred much more expenses than fixed by the authorities concerned
The petitioner also alleged a number of other corrupt practices which had been committed by the appellant in the course of the election
The appellant in his written statement strongly refuted all the allegations made by the petitioner and submitted that he had committed no corrupt practice and that the return which he had filed to the District Election Officer was absolutely correct and the expenses incurred by him were well below the permissible limit
A large number of issues were framed by the High Court but the High Court appears to have accepted the election petition only on one issue viz issue No 4 which related to the corrupt practice as contemplated by section 1236 of the Representation of the People Act hereinafter referred to as the Act  in incurring the expenditure exceeding the permissible limit which amounted to a contravention of 633 section 77 of the Act
The other allegations made by the petitioner were held by the High Court as not proved
The learned counsel for the petitioner who argued this case with tenacity and ingenuity was unable to support the allegation made by the petitioner on any other issue framed by the court except issues No 4 and 5
As the pivotal controversy in the instant case rests on issue No 4 we would like to take up the finding of the High Court on this issue first
Issue No 4 as framed by the High Court may be extracted as follows Whether the Respondent No 1 committed corrupt practice as defined under sec
1236 of the Representation of the People Act 1951 by incurring or authorising expenditure exceeding the permissible amount in contravention of section 77 of the said Act as alleged in paragraphs 10 11 Ground No II and Schedule B to the Petition If so is the election of Respondent No 1 liable to be set aside This issue was based on the plea taken by the petitioner in paragraph 10 and ground No II as also Schedule B to the petition and it may be necessary to traverse the allegations made by the petitioner regarding this issue
Paragraph 10 appears to be an omnibus statement which contains a number of grounds including the question of incurring unauthorised expenditure with which alone we are concerned for the present and may be extracted thus That the petitioner also states and contends that the election of Respondent No 1 is liable to be declared void as he committed several corrupt practices namely 1 the corrupt practice as defined in sub section 6 of section 123 of the Act that is to say incurring or authorising expenditure in contravention of section 77 of the Act 2 the corrupt practice of bribery as defined in sub section 1 of section 123 of the Act 3 the corrupt practice of hiring or procuring vehicles for the free conveyance of electors to and from certain polling stations within the said Assembly Constituency as defined in Section 1235 of the Act
The material facts and particulars of these corrupt practices are set out hereunder Ground No II of the petition may be extracted as follows For that the Respondent No 1 committed the corrupt practice as set out in sub section 6 of section 123 of the Act by incurring or authorising expenditure in contravention of section 77 of the Act
 634 The material particulars relating to the allegation made in Ground No II are contained in Schedule B to the petition the relevant portion of which may be extracted thus B 1
In his return of election expenses the Respondent No 1 returned the total expenditure of Rs 132369
    B 3
Expenses incurred in connection with hire charges of vehicles and petrol and mobil oil consumed on account of these vehicles and in purchasing accessories i The respondent hired a jeep bearing No NLK 4308 from Wilubo of Dimapur and paid hire charge of Rs 3000 including the cost of the driver to the said owner
ii On 3 11 1977 the Respondent No 1 purchased two tyres valued at Rs 720 from the firm Motilal Dungarmall of Dimapur and one exide battery from the firm Bakliwal and Gangwals of Dimapur at the cost of Rs 540 for the purpose of the aforesaid vehicle No NLK 4308
iii On 28 10 1977 the Respondent purchased petrol worth Rs 240 for the vehicle No NLK 6284 used by him for the purpose of election from the firm of Pulchand Trilokchand Dimapur under voucher No 270800
 We have already mentioned that all the allegations made by the petitioner were stoutly denied by the appellant
Thus from the allegations made by the petitioner so far as issue No 4 is concerned the gravamen of the charge against the appellant was that while he had shown a total expenditure of Rs 132369 in his return filed before the District Election Officer yet he had incurred expenditure far exceeding the same Paragraphs B 3i ii and iii of Schedule B to the petition extracted above
show that the appellant had incurred a total expenditure of Rs 3960
According to the petitioner these expenses were incurred on the hiring of jeeps and purchasing tyres and other accessories for jeep NLK 4308 which was used for the purpose of election campaign
The permissible limit being Rs 2500 only the expenditure incurred according to the petitioner exceeded the limit by Rs 1460
It was also alleged by the petitioner that jeep No NLK 4308 was hired by the appellant from one Wilubo of Dimapur who was paid hiring charges of Rs 3000
We might state here that according to the finding of the High Court the petitioner himself admitted in his evidence that the expenditure incurred 635 for the purchase of tyres and battery Rs 720 and Rs 540 respectively were included in the amount of Rs 3000 the balance being the hire charges
The petitioner therefore contended that at any rate the appellant had exceeded the expenses incurred in the election by at least Rs 500 a fact which according to him he had proved to the satisfaction of the court
We have gone through the judgment of the High Court carefully and what we find is that the High Court has not made any attempt to determine whether there was any legal and acceptable evidence to prove the corrupt practice alleged against the appellant
It is now well settled by a large catena of authorities that a charge under section 123 of the Act must be proved by clear and cogent evidence as a charge for a criminal offence
It is not open to the court to hold that a charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that there is evidence to prove the charge beyond a reasonable doubt
The electoral process in this country is an extremely expensive one and by declaring the election of a candidate null and void the entire process so far as the candidate is concerned is set at naught resulting in re election
Such a course should be adopted only when the allegation of corrupt practice is proved conclusively
In KM Mani vs PJ Antony  Ors1 this Court while referring to a large number of cases observed as follows An allegation regarding the commission of a corrupt practice at an election is a very serious matter not only for the candidate but for the public at large as it relates to the purity of the electoral process
   In taking that view the trial court lost sight of the requirement that the allegation regarding the commission of a corrupt practice is in the nature of a quasi criminal proceeding which has to be established beyond reasonable doubt and not merely by preponderance of probabilities
In Mohan Singh s case  it has been held that the onus of proving the commission of a corrupt practice is not discharged on proof of mere preponderance of probability as in a civil suit and it must be established beyond reasonable doubt by evidence which is clear and unambiguous
636 In Balakrishna  it has been held that while consent may be inferred from circumstantial evidence the circumstances must point unerringly to the conclusion and must admit of no other explanation for a corrupt practice must be proved in the same way as a criminal charge 
The election petitioner must therefore exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent and the trial court erred in basing its finding on a mere probability
 It is not necessary to multiply authorities on this point because the law has been fully crystallised on the subject
The petitioner who was examined as PW 1 has clearly stated in his evidence that he was told by Wilubo that the appellant had hired Jeep No NLK 4308 from him for a lump sum of Rs 3000 which were the hire charges
The witness further admitted that Wilubo was his relation being the brother of his elder brother s wife and was staying at Dimapur
Thus the petitioner himself had no personal knowledge as to the actual hiring charges paid to Wilubo by the appellant and his source of information is based on what he heard from Wilubo
Wilubo however who was examined as a witness for the appellant has denied these allegations and has also denied having told the petitioner that his Jeep was hired by the appellant much less for a sum of Rs 3000
Mr Karanjawala appearing for the petitioner vehemently contended that the manner in which Wilubo was examined by the appellant as his witness shows that he was not speaking the truth
It was pointed out that to begin with Wilubo was cited as a witness for the petitioner and summons were issued to Wilubo but he evaded service and ultimately a warrant had to be issued when the counsel for the appellant informed the court that Wilubo would be examined as a witness for the appellant
Our attention was also drawn to the cash memos
which show that the tyres costing Rs 720 and battery worth Rs 540 were purchased
Even accepting this part of the case all that has been shown is that a sum of Rs 1260 was spent so far as jeep No NLK 4308 was concerned
But this fact by itself was not sufficient to prove the allegations made by the petitioner against the appellant
It had further to be shown by the petitioner to the satisfaction of the court that Wilubo had charged a hiring charge of Rs 3000 or nearabout that from the appellant and that he himself had purchased the tyres and battery
Wilubo had denied this allegation the evidence of the petitioner on this point is purely hearsay and therefore inadmissible in evidence
It was however argued by Mr Karanjawala 637 that from the evidence of the witnesses produced by the petitioner it would appear that Jeep No 4308 was freely used for a large number of days from which it could be safely presumed that the charges for the jeep must have been in the region of Rs 3000
In the first place there is no clear evidence of any of the witnesses examined by the petitioner to show the exact period for which the jeep was used or the distance which it had traversed nor is there anything to show that such an amount as Rs 3000 could have been paid as hiring charges to Wilubo by the appellant
The evidence merely shows that the jeep was used either on the election day or a day after or a day before that
There is no evidence to show what were the customary hiring charges for jeeps or cars in the localities where the jeep is said to have been used by the appellant
It is however suggested by Mr Karanjawala that as Wilubo appears to be a man of small means it must be presumed that he must have made a lot of money by hiring out the jeep to the appellant
This is also a pure conjecture and cannot be pressed into service for unseating the appellant which can be done only if the evidence even if it consists of circumstantial evidence must be clear and conclusive
We have been taken through the evidence of PWs 1 5 6 13 and 20 but none of these witnesses gives us any idea of the prevailing rate of hire in the localities concerned which could have been paid by the appellant to Wilubo for the jeep
The evidence led by the petitioner falls far short of the standards required by law
Another important circumstance that militates against the case of the petitioner is that while the petitioner admits in his evidence that he used to maintain some sort of a diary of his electioneering yet he had not produced it on the plea that he did not remember where he had kept the diary
In this connection the petitioner deposed as follows I had maintained some sort of a diary of my electioneering
The diary was of course not maintained regularly
I do not remember where I kept the diary
I have not filed the same in Court
 It is therefore manifest that the diary would have been the best evidence to show that as to how many days the jeep was used or for what distance and as also the hiring charges paid by the appellant to Wilubo
The petitioner has withheld the diary and has not filed the same in the court from which a natural presumption arises that if he had produced the diary it would have gone against his case
Even PW 6 who according to the petitioner was an independent witness has merely said that he knew that the appellant had used a jeep but he does not 638 either give the dates when the jeep was used or the distance which it had traversed
He however further admits that although he had seen the jeep he did not see the appellant Zeliang in it
This therefore falsifies his allegation that the jeep was used by the appellant
The evidence of other witnesses on this point is also not helpful to the petitioner and is even more vague than the evidence of PW 6
In fact there is some evidence to show that the appellant had visited various places in his constituency even on foot
In the absence of such evidence it was not open to the High Court to accept the speculation of the petitioner that the appellant must have incurred hiring charges for the jeep exceeding Rs 2000 or so
The appellant has denied having incurred any expenditure on the purchase of tyres and battery but taking the case of the petitioner at the highest and assuming that an expenditure of Rs 720 for the tyres and Rs 540 for the battery was incurred as is proved from the cash memos produced by the petitioner there is no reliable or credible evidence to show that the appellant had himself met the cost of these articles and used them for his election campaign
Thus the expenses indicated above are not at all relatable to the jeep in question
In these circumstances therefore we are clearly of the opinion that there is no legal evidence to support the corrupt practice alleged by the petitioner in that he had incurred expenditure beyond Rs 2500 and thus the petitioner has not been able to prove that the return of expenses filed by the appellant before the District Election Officer was wrong or inaccurate and in excess of the permissible limit
Hence the finding of the High Court on this point cannot be sustained
Realising this difficulty Mr Karanjawala strongly pressed issue No 5 framed by the High Court on the basis of one of the allegations made by the petitioner
The High Court has however clearly held that the allegation which formed the subject matter of issue No 5 has not been proved at all by the petitioner
Mr Karanjawala assailed the finding of the High Court on this point and submitted that this allegation was clearly proved by the petitioner
There however appears to be an insurmountable obstacle in accepting the contention of the counsel for the petitioner on this point
It is well settled that an allegation of corrupt practice must be clearly pleaded in the petition and the particulars given in the schedule
Corrupt practice being in the nature of a fraud it is not permissible to plead one kind of fraud or one kind of corrupt practice and prove another though they may be inter connected
The High Court has rightly found that as the petitioner pleaded that it was the appellant himself who had held a feast invited his voters and exhorted them to vote for him the evidence shows that the appellant had not held the feast at all but it 639 was hosted by one of his agents in which the appellant was present and therefore it cannot be presumed that the feast was held at the instance of the appellant
The High Court held that the allegation pleaded was not proved by the evidence which in fact was contrary to the pleadings and therefore no notice of such a corrupt practice could be taken
With due respect we find ourselves in complete agreement with the reasons given by the High Court on this aspect of the matter
Issue No 5 may be extracted thus Whether Respondent No 1 committed corrupt practice of bribery as defined under section 1231ab of the Representation of the People Act 1951 by offering himself or by his agents with his consent gratification by way of entertaining the electors of No 6 Tening Assembly Constituency of the Nagaland Legislative Assembly with feasts with the object directly or indirectly of inducing them to vote for the Respondent No 1 as alleged in paragraphs 10 11 Ground No III and Schedule C to the petition If so is the election of Respondent No 1 liable to be set aside In Schedule C the particulars given show that the appellant gave a feast on 2 11 77 and on 31 10 77 and on 12 11 77 to the electorate and purchased a pig on all these occasions for hosting the voters
The evidence led however shows that no feast was hosted by the appellant at all but was done by some other person who was his agent while the appellant was present
It is therefore manifest that the exact corrupt practice pleaded by the petitioner in Schedule C was not proved but was in direct variance with the evidence which he led on this point
On this ground alone therefore the petitioner would have to be put out of court so far as issue No 5 is concerned
No other point was pressed before us by the counsel for the parties
For the reasons given above we are satisfied that there is no legal evidence to prove the corrupt practice alleged against the appellant that he had exceeded the limit of expenditure fixed in using the jeep even if he had taken it from Wilubo
Issue No 5 also was rightly held by the High Court not proved
In this view of the matter the appeal is allowed
The order of the High Court setting aside the election of the appellant and unseating him is hereby quashed
In the peculiar circumstances of the case there will be no order as to costs
PBR Appeal allowed


Summary:
In the elections to the State Assembly in 1977 the appellant was declared elected
The election petitioner who was one of the defeated candidates alleged in his petition that the appellant had filed a false return of the expenses and thereby committed corrupt practice within the contemplation of section 1236 of the Representation of the People Act 1951
Accepting the allegation the High Court set aside his election
Allowing the appeal
 HELD 1 The High Court has not made any attempt to determine whether there was any legal and acceptable evidence to prove corrupt practice alleged against the appellant
It is well settled that a charge under section 123 of the Act must be proved by clear and cogent evidence as a charge for a criminal offence
It is not open to the Court to hold that a charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that there is evidence to prove the charge beyond a reasonable doubt
635 B D KM Mani vs PJ Antony  ors  referred to
i In the instant case the petitioner himself had no personal knowledge as to the actual expenses in hiring taxies and his source of information was based on what others said
The evidence led by the petitioner falls far short of the standards required by law
636 D 637E ii The petitioner claimed that he maintained a diary of the electioneering
Yet he did not produce it in Court from which a natural presumption arises that if he had produced the diary it would have gone against his case
637 G H 2 Corrupt practice being in the nature of a fraud it is not permissible to plead one kind of fraud or one kind of corrupt practice and prove another though they may be inter connected
The High Court has rightly found that the petitioner pleaded that it was the appellant who had held a feast at which he invited his voters and exhorted them to vote for him
But the evidence shows that the appellant had not held the feast but it was hosted by one of his agents at which the appellant was present and therefore it could not be proved that the feast was held at the instance of the appellant
638 G 639A