(1) This appeal has been preferred by the defeated candidate Lachhman Singh Gill under S. 116A of the Representation of the People Act from the order of the Election Tribunal, Ludhiana, dated the 31st July 1959, dismissing the appellant's election petition.
(2) In the general elections held in 1957 to the Punjab Legislative Assembly Bibi Harparkash Kaur respondent was returned from the Jagraon Constituency. Her election was challenged by Shri Lachhman Singh Gill, a defeated candidate by means of a petition, dated 9-4-1957, on a number of grounds. Some of the allegation contained in the petition were considered by the Tribunal to be vague and therefore liable to be struck off; on the remaining allegations on which an inquiry was held the findings of the Tribunal went against the petitioner with the result that the election petition was dismissed on 29-7-1958.
An appeal was thereupon preferred against that order and a Division Bench of this Court (consisting of Falshaw J. and myself) while affirming the conclusions of the Tribunal on the merits, so far as issues actually tried were concerned, set aside, in part, the interlocutory order of the Tribunal, dated 20-8-1957, striking off certain allegations of corrupt practices, and directed that inquiry be held into the allegations of corrupt practices contained in clause (a) of paragraph 12 and items (o) and (q) of paragraph 14 of the petition. After remand Shri Gurdev Singh, District Judge Ludhiana, who was entrusted with the trial of the petition, framed the following issues:
I. Whether the respondent No. 1 and her election agent obtained and procured assistance, for the furtherance of the prospects of the election of respondent No. 1, of Shri Malkiat Singh Qanungo and Shri Jagir Singh Assistant Consolidation Officer of village Sujat
II. Whether between 7th February, and 24th February, 1957, Shri Malkiat Singh Qanungo had called Mahan Singh Sarpanch of Village Chima to the Panchayatghar of that Village and had asked the Sarpanch to persuade other villagers to vote for the respondent No. 1
III. Whether between the 7th February, and 25th February, 1957, Shri Jagir Singh Assistant Consolidation Officer had called Shri Pritam Singh Member Panchayat to the Panchayatghar of villages Sohian, Pabbain and Jagroan and had asked him to persuade the people of these villages to vote for respondent No. 1
IV. Whether between 8th and 24th February, 1957, the respondent No. 1 had incurred an expense of Rs. 3,000/- on propaganda by employing Shri Karnail Singh Ramuwalia and Shri Ram Singh Jhabewalia and their parties for the purpose
V. If issue No. IV is found in the affirmative, whether the total expenses incurred by the respondent No. 1 in connection with here election exceeded the prescribed limit of Rs. 7,000/- and, if so, what is its effect
VI. If issue No. IV is found in the affirmative, what is the effect of the non-inclusion of these expenses in the return of election expenses filed by respondent No. 1
(3) Under issue No. II the finding went against the petitioner as the evidence adduced on his behalf regarding the conduct of Shri Malkiat Singh Quanungo did not, in the opinion of the Tribunal, inspire confidence and did not come up to the standard of proof required in a criminal trial. Decision on issue No. III also went against the petitioner. Although the Tribunal though that the findings on these two issues were sufficient to dispose of issue No. I as well against the petitioner, nevertheless evidence led on behalf of the petitioner were to be accepted, the mere passive conduct of respondent No. 1 and her election agent in sitting by and not objecting to the canvassing by Malkiat Singh Qanungo did not amount to her obtaining or procuring assistance within the contemplation of S. 123(7) of the Representation for the People Act (Act No 43 of 1951), as this provision of law does not go to the extent of preventing a Government servant from expressing his views with regard to a candidate; nor does it impose upon the candidate concerned a duty to stop a Government servant from canvassing in his favour.
Under issue No. IV also the finding went against the petitioner, it having been held that the allegation of incurring expenditure to the extent of Rs. 3,000/- in connection with the employment of the two jathas of musicians for the election propaganda of respondent No. 1 was not substantiated. In so far as Karnail Singh Ramuwalia is concerned, it has been expressly observed that there is no reliable evidence about the remuneration paid to him and in the absence of such evidence and without knowing for how many days he worked, it was not possible to determine the precise amount paid to him. With respect to the jatha of Ram Singh Jhabewalia, however, a sum of Rs. 315/- for seven days at the rate of Rs. 45/- per day was found to have been paid to him by Bibi Harparkash Kaur for doing propaganda work on her behalf.
The Tribunal, however, believing the evidence led by the petitioner on the point that Karnail Singh Ramuwalia had also worked for Bibi Harparkash Kaur considered that sum of Rs. 315/- might reasonably be added as expenditure incurred on this count; and adding another sum of Rs. 350/- on account of likely expenses in organizing meetings and in arranging transport, etc., the total amount of expenses incurred by Bibi Harparkash Kaur on her election, in the Tribunal's view, did not exceed the statutory limit of Rs. 7,000/-.
It may here be mentioned that in her return of election expenses the respondent had given the total expenses to be Rs. 5,426/7/6, and adding Rs. 980/- to this figure, the total expenses incurred, according to the findings of the Tribunal, came to Rs. 6,406/7/6. Under issue No. VI the Tribunal has held that mere submission of a false return of expenses in material particulars, being no longer a corrupt practice after the recent amendment of the Representation of the People Act 43 of 1951 by Act 27 of 1956, the election could not be set aside by the Tribunal on this ground. On the above findings, as already observed, the election petition has been dismissed and Shri Lachhman Singh Gill feeling aggrieved has approached this Court no appeal.
(4) The learned counsel for the appellant has started his attack on the impugned order by taking up issues IV and V together and has submitted that in view of the appellant's evidence with respect to the holding of meetings and the election propaganda by both parties of musicians, i. e., Ram Singh Jhabewalia's and Karnail Singh Ramuwalia's, the learned Tribunal was in error in holding that expenses amounting only to a sum of Rs. 908/- were incurred on these two jathas. The counsel has made his calculations, according to which, the total expenses on these two parties for fifteen days, according to a modest estimate, as he has put, come to Rs. 4,890/-.
It has been strenuously urged that there are twenty-six witnesses for the petitioner-appellant, including Ram Singh Jhabewalia P.W. 56 himself, who have supported the petitioner's allegation that these musicians actually carried on extensive election propaganda on behalf of Bibi Harparkash Kaur during the election days. Twenty-six witnesses, P.W. 31 to P.W. 55, are said to come form seventeen villages in which such propaganda is alleged to have been done.
The counsel, however, only read the statements of a few witnesses, e.g., P.W. 33, P.W. 36, P.W. 40, P. w. 42, P.W. 46 and P.W. 53, and submitted that the other witnesses have given evidence practically on similar lines. Ram Singh Jhabewalia P.W. 56 has stated that he was paid a sum of Rs. 3,000/- in aggregate for having worked for 15 days from the 7th to the 21st February, 1957 (both days inclusive) at the rate of Rs. 200/- per day, for three sittings on each day. Besides this remuneration, so says the witness, he was also given free food. It may be mentioned that according to Ram Singh Jhabewalia his jatha consists of himself and three other persons out of whom one blows the sarangi and the other two dhadhis, though the three associates are not permanently attached to him but keep changing.
(5) The counsel then submitted that in the pleadings the respondent initially denied having incurred any expenses on these musicians, and indeed made an attempt to throttle the inquiry into this allegation the technical plea of there being no details and particulars of this items of expenditure. Later, it was suggested by her that the propaganda work by these two parties of musicians during the election in question was done on behalf other petitioner-appellant himself and not on behalf of the respondent and that it was only when overwhelming evidence had actually been brought on the record and as a last resort that the respondent felt virtually compelled to admit that Ram Singh Jhabewalia'a party had done propaganda work on her behalf.
According to the appellant it was at that stage that the respondent resorted to the device of manufacturing a forged receipt purporting to have been given by Ram Singh Jhabewalia acknowledging payment of Rs. 315/- for seven days at the rat eof Rs. 45/- per day. This receipt is marked 'Z'. The appellant does not admit this receipt to be genuine but it is contended that the respondent even at that stage did not in a frank and candid manner admit having engaged these musicians, but invented a false and clumsy story that Shahbeg Singh D.W. 12 had engaged Ram Singh Jhabewalia without her consent or even knowledge, for doing propaganda work on behalf of three Congress candidates, namely, S. Ajit Singh Sarhadi, a candidate for the Parliament, S. Bahadur Singh and Bibi Harparkash Kaur, in the district of Ludhiana.
This payment of Rs. 315/- also, according to this story, was made by Shahbeg Singh out of a sum of Rs. 1,100/- said to have been collected by him from some undisclosed sympathizers for the propaganda of Congress candidates. The counsel has contended that in this background, implicit reliance should be placed on the witnesses produced by the petitioner who have deposed that the two jathas of Ram Singh Jhabewalia and Karnail Singh Ramuwalia actually did election propaganda for and on behalf of Bibi Harparkash Kaur for a fortnight and also that Ram Singh actually received Rs. 3,000/- as deposed by him; and the receipt Exhibit 'Z' must also be held to be a forged document manufactured for the sole purpose of taking the case out of the definition of corrupt practice mentioned in S. 123(6) of Act 43 of 1951.
The counsel has argued that the ostensible author of the receipt denies its execution; the respondent also disowns having paid Rs. 315/- to Ram Sing Jhabewalia as described in the receipt; Shahbeg Singh, who has come in the witness-box to take upon himself the responsibility of paying the amount, does not figure in the receipt and he also denies the correctness of the recitals contained in the document. On these ground the counsel wants us to hold the receipt to be a spurious document so far as the amount paid to Ram Singh Jhabewalia is concerned and, after rejecting this part of the receipt, we are asked to believe the appellant's witnesses and hold that Rs. 3,000/- were actually paid to Ram Singh Jhabewalia as stated by him.
(6) Dealing with the argument of the receipt being forged, in my view the learned Tribunal has rightly held this to be a genuine document. If, as is vehemently contended on behalf of the appellant, this receipt was manufactured for the express purpose of discrediting the evidence led by the petitioner, that the two parties of musicians had been engaged for doing election propaganda of the respondent and for supporting and establishing the version given by Bibi Harparkash Kaur and her two witnesses Mohinder Singh and Shahbeg Singh, then, unless those responsible for manufacturing this receipt are absolutely stupid, and are even ignorant and unmindful of the very purpose of creating this evidence, the receipt would not have mentioned that Rs. 315/- had been received by Ram Singh Jhabewalia from Bibi Harparkash Kaur on account of her election propaganda at the rate of Rs. 45/- per day.
I find it exceedingly difficult to believe that any person of average understanding would forge a receipt like the one before us for disproving the allegation that Ram Singh Jhabewalia had been engaged by or for and on behalf of Bibi Harparkash Kaur for doing her election propaganda. The learned Tribunal has also observed in this connection that although the two Handwriting Experts produced by the parties were expected to support their respective clients, yet the Expert produced by the respondent was more impressive than the one produced on behalf of the petitioner-appellant. The Tribunal further expressed the view that if the receipt was sought to be forged, then, normally speaking, the natural tendency would have been to strive to confined the forged portion of the document within as restricted limits as possible and not to make the entire document purport to be in the handwriting of Ram Singh Jhabewalia. Without pursuing this matter any further I would merely state that I entirely agree with the reasoning and conclusions of the Tribunal on this point and, in agreement with it, hold that the receipt is a genuine document, and nothing said in criticism of the reasoning of the Tribunal has convinced me to differ from its estimate.
(7) Once the receipt is held to be genuine, then, in my view it would not be very difficult to come to the conclusion as to how much amount was actually spent at least on the party of Ram Singh Jhabewalia. The appellant's counsel has very emphatically contended that twenty-five witnesses, P. Ws. 31 to 55, corroborated as they are by the testimony of Ram Singh Jhabewalia P. W 56, have unequivocally stated that the jathas of the two musicians actually did propaganda work on behalf of Bibi Harparkash Kaur and therefore we should hold that the amount spent on these jathas must have been at least Rs. 3,000/-, if not still higher, thereby bringing the total election expenses to a figure far in excess of the permissible limit of Rs. 7,000/-. He has tried to calculate the probable and approximate expenses incurred on these two jathas somewhat as follows:
(i) The two jathas carried on propaganda for 15 days at the rate of Rs. 50/- per day per jathas.
(ii) There was a station-wagon at the disposal of these jathas and its hire charges at the minimum must be determined at the rate of Rs. 30/- per day. He fixes this amount for the daily hire by placing reliance on Exhibit D. 11, the respondent's return of election expenses to which is attached a voucher with respect to the hire of some station-wagon.
(iii) The station-wagon must have consumed petrol and the minimum expenditure on petrol consumption must be calculated at Rs. 23/- per day; this inference with respect to the probable consumption is also drawn from some average expense shown in Exhibit D. 11.
(iv) The appellant's witnesses stated that the parties of musicians used to come with loudspeakers and, therefore, Rs. 10/- per day should be calculated on account of hire charges of the loud-speaker; for estimate also reliance is placed on some vouchers attached to Exhibit D. 11.
(v) Ram Singh Jhabewalia has deposed that in addition to Rs. 200/- per day he was also given food, etc. Rs. 20/- per day have, therefore, been estimated to have been spent on account of food, etc., of the two jathas.
(vi) The respondent must also have incurred considerable expense on arranging for the various meetings to be addressed by the two jathas. Rs. 30/- per day should, reasonably speaking, be added on account of this item.
(8) At this rate, so the counsel argues, the expenses incurred on behalf of the respondent on these two jathas alone would come to Rs. 4,890/-. Adding this amount to the expenses included in the return, Exhibit D. 11, i.e., Rs. 5,426/7/6, the total expenses incurred would obviously be very much in excess of Rs. 7,000/-. In my opinion, however, the entire argument of the counsel for the appellant with respect to this calculation is based on wholly unjustified assumption and conjectures. To begin with it is not possible for me to find, on the evidence led on his behalf, that both of these two jathas actually carried on election propaganda for Bibi Harparkash Kaur and that also for full 15 days and at Rs. 200/- per day.
The twenty-five witnesses, on whom reliance has been placed, cannot in my opinion be implicitly relied upon on these two points, and their evidence appears to me to be wholly insufficient to justify a finding in the appellant's favour. In so far as Ram Singh Jhabewalia is concerned, the receipt Exhibit 'Z', dated 23-2-1957, expressly states that Rs. 315/- had been received by him for having worked for seven days. He ahs denied its execution. But since the receipt has been held by us to be a genuine document, the whole of which is in this witness' own handwriting, he must be held not to be telling the truth when he says that he charged Rs. 200/- per day or that his jatha worked for the respondent for 15 days from 7th to 21st February, 1957 (both days inclusive).
According to the appellant, these musicians' parties had worked only from the 8th to 24th February, with the result that there is no reasonable likelihood of any further payment being made after the 23rd February, the date of the receipt, particularly when Ram Singh Jhabewalia as P.W. 56 admits that he worked only up to 21st February, 1957. It is true that P.W. 56 would have us believe that he was being paid Rs. 200/- at the close of every day, but in view of the receipt it is difficult of me to place any reliance on this part of his statement. His testimony on the question of his daily charges, even independently of the receipt, seems to be a gross exaggeration. On his own showing he does no pay and income-tax nor does he keep any accounts, though he admits to have been earning Rs. 1,000/- or Rs. 2,000/- per month in 1957.
Even during the normal times, when there were no elections, his party's income never went below Rs. 1,000/- per month. He was, however, constrained to admit that his fees were not fixed and that on certain occasions he charged Rs. 20/- per sitting and on threes Rs. 40/- per sitting. At time he also admits to have given free performance. He has been and still is an Akali and he has stated that he undertook to do propaganda work for the respondent because of a compromise between the Congress and the Akali parties during the 1957 elections. He could not give the names of the persons in whose presence his terms were settled for supporting the respondent, though he admits that the settlement was arrived at with Mohinder Singh at Jagraon at the election office of Bibi Harparkash Kaur in the presence of four or five other Congress men.
He would also have us believe that though he was paid Rs. 200/- per day on the close of each day for doing extensive propaganda on behalf of respondent No. 1, no receipts of these payments were ever demanded from him. The failure to ask for a receipt for such a big item of expenditure on propaganda so openly carried out would be an act of such great carelessness, if not recklessness, on the part of election candidate, that I would have found it difficult to believe it, even without Exhibit 'Z'. In the presence of this receipt, however, the version given by this witness must, in my view, be discarded. In the right of this discussion it appears to me that on the existing record Ram Singh Jhabewalia can only be held to have worked for the respondent for seven days at Rs. 45/- per day, for which he was paid Rs. 315/- in all, and his statement to the contrary is not trustworthy.
(9) So far as Karnail Singh Ramuwalia is concerned, he has not been produced, anther is absolutely no evidence as to how much amount was actually paid to him. It is, of course, urged on behalf of the appellant that this man had been won over, and the learned Tribunal also seems to have been fully inclined to accept this suggestion. Whatever be the reason for his non-production, the fact remains that there is no reliable evidence of his party of musicians having worked of any precise number of days or of any payments having been made to him. I do not find any cogent or plausible ground for the appellant to assume that both the jathas worked for 15 days at the rate of Rs. 50/- per day per jatha.
It may be remembered that Ram Singh Jhabewalia claims to have agreed to work at Rs. 200/- per day, which claim even the appellant's counsel has considered to be too extravagant and tall to be worthy of adoption by him in the argument before us. The assumption suggested by the counsel that both the jathas should be held to have worked for 15 days at Rs. 50/- per day per jatha is, in view of the attending circumstances, wholly inadmissible being based on pure conjecture. Regarding the hire of station-wagon also, the record is bare of reliable and trustworthy evidence, admit is not possible to find that any station-wagon was actually hired by the respondent for the purposes of these jathas.
Mere indefinite, unprecise and vague assertions by some of the witnesses that these parties used to me in vehicles, fixed with loud-speakers, is not at all sufficient to justify a positive finding either of any station-wagon having been actually used or of any expenses having been incurred or authorised in that connection. The item of petrol consumption goes with the item of station-wagon. Had any hired station-wagons been actually used by the jathas, it would not have been very difficult for the petitioner to place on the record material shown in at least their registered numbers.
The position with respect to the item of loud-speakers is equally shaky, the evidence on this point being no better. Regarding diet charges of Rs. 20/- per day also, the argument is based on pure conjecture, having no basis either on actual facts or on any reasonable likelihood. Even Ram Singh himself has not stated as to whether any money was spent on his food or paid to him n this account. He was the best person to give us full details about the arrangement regarding food; whether someone on behalf of the respondent used to accompany the jatha in order to pay for their food or whether he himself was paid separately in this connection and, if so, how much; unfortunately for the appellant, the testimony of this witness is of a real assistance on this point. It is unnecessary to advert to other witnesses who, too, seem to have said nothing really useful and convincing on this point. With respect to the item of miscellaneous expenses for arranging meetings, etc., also, the argument is based on surmises and assumptions.
It must in this connection be kept in view that onus of proving corrupt practices lies on those who assert their commission and they have to be established beyond the possibility of a reasonable doubt. It is, of course, indisputable that the evidence in their support need not necessarily be direct, but it is equally well-settled that the circumstantial evidence and the inferences deducible therefrom must be such as to lead to the only reasonable conclusion of the commission of the corrupt practices alleged. No conjecture or surmise, however attractive or even plausible, can take the place of proof, and if two equally reasonable inferences and the other guilty, the former should normally prevail. In my view the evidence on this record does not come up tot his standard and it is far from sufficient to establish the incurring or authorising of expenditure in excess of Rs. 7,000/-, which is the gravamen of the corrupt practice which is the subject-matter of issues IV and V.
(10) The learned Tribunal has, however, added to the sum of Rs. 315/- another sum of Rs. 315/-, on account of the charges which may have been paid to Karnail Singh Ramuwalia, and a sum of Rs. 350/- on account of possible expenses of these two jathas. Although even by adding these two items, the expenses do not exceed the permissible limit, nevertheless in my view the learned Tribunal was not justified on the present state of the record in adding these two items. There is absolutely no reliable material on the record establishing that Karnail Singh Ramuwalia was paid Rs. 315/- or that a sum of Rs. 350/- was spent on these two jathas. The counsel for the appellant has contended that if an allegation of the corrupt practice of incurring expenses beyond the prescribed limit is made and the returned candidate does not produce correct account-books and some expenses are proved to have been actually incurred, which were apparently not included in the return of expenses, then it is for the Tribunal to try to get at the amount of expenses which may have in all probability been incurred by calculating them at a reasonably modest basis.
In my view it is wholly unnecessary to draw any inferences or to have resort to any conjectures or surmises in the present case, because the petitioner has failed satisfactorily to establish the Karnail Singh Ramuwalia's party also worked for the respondent or that, if at all that party did some work, they were actually paid or were even entitled to charge at the rate of Rs. 45/- per day, the amount paid to Ram Singh Jhabewalia. There is also no reliable material on the record to justify a finding that these musicians had to be paid anything for their food or that any further expenses were incurred or authorised by the respondent in arranging for the meetings said to have been addressed by them.
In this connection it is instructive to notice that in the election petition it was stated in para 14(o) that the respondent had spent about Rs. 3,000/- at Rs. 200/- per day on the propaganda by the parties of musicians and poets and that expenses of this propaganda and for feeding the poets and dhadh / sarangiwalas was not included in the return. When this was denied in the written statement, in the replication the assertion in the petition was reiterated. No villages, in which this propaganda was supposed to have been carried on, were specifically mentioned. It has been argued by the appellant that he was not bound to give the details and the particulars of the villages which the musicians visited.
Without deciding whether or not he should have given those particulars, their omission can, in my view, be rightly commented upon and taken into account in determining whether or not, and, if so, how far, to place reliance on the evidence led on the point Ram Singh Jhabewalia has undoubtedly deposed as a witness that he was paid an aggregate sum of Rs. 3,000/- at the rate of Rs. 200/- per day. I have already disbelieved this assertion, and in my view the witness has told a clear lie. His own receipt, Exhibit 'Z', completely belies his statement. The appellant has also contended that in view of the strictures passed by the learned Tribunal against the veracity of Bibi Harparkash Kaur, Mohinder Singh and Shahbeg Singh, and in the absence of inclusion of the sum paid to Ram Singh Jhabewalia, the latter's statement should be believed.
In this connection out attention has been drawn to certain passages from the order of the Tribunal where he has refused to accept Bibi Harparkash Kaur's statement as a witness observing that she had made wrong statement in the matter of employment of the jatha of Ram Singh Jhabewalia. It is true that she has not stated the truth, as she should have and was expected to, and that Mohinder Singh and Shahbeg Singh have told deliberate lies, but, as already stated, in the matte of proof of corrupt practices it is always for the person alleging their commission to prove, beyond the possibility of a reasonable doubt, that the returned candidate got elected by the commission of corrupt practices or by flagrant breaches of law, and in case of doubt the benefit ought to go to the person elected and the election should not be lightly set aside. Ram Singh Jhabewalia has already disbelieved and I do not think the quality of his testimony has improve merely because the respondent's witnesses have also not told the truth.
(11) At this stage I may notice another argument urged at the Bar. It is submitted on behalf of the appellant that his witnesses, who have been believed with respect to the propaganda done by Ram Singh Jhabewalia's jatha, must also be believed on the point that both the jathas worked for the respondent for 15 days and that they had motor-vans at their disposal. The argument is that if the evidence of a witness is not rejected as unreliable, then it is not fair to accept his testimony only in part. The counsel for the respondent was similarly contended that Ram Singh Jhabewalia having not been believed in his denial of the execution of the receipt. Exhibit 'Z', it is contrary to the sound principles of law and is unsafe to rely on him when he states that he did propaganda work for the respondent during the election in question. The arguments coming, as it did, from the side of at the respondent, caused on inconsiderable surprise, because on this argument it is inconceivable how the counsel could claim to rely on any part of the statement of the respondent or of Mohinder Singh and Shahbeg Singh against whom strictures have been passed by the Tribunal.
(12) In my opinion, however, this argument is not admissible. I am not aware of any rule of law in force in this country that the testimony of a witness must either be believed in its entirety or not at all. It is really a matter to be considered on the facts and circumstances of each case and every day courts are called upon to sit the evidence and find out for themselves as to how far and to what extend the testimony of a particular witness is to be held trustworthy. It is, in my opinion, fully competent for a Court, for good and cogent reasons, to accept one part of the statement of a witness and reject another. In the case in hand we have been induced to believe the appellant's witnesses with respect to the propaganda done by Ram Singh Jhabewalia largely by finding that the receipt, Exhibit 'Z', is a genuine document, the contents of which have clearly corroborated the statement of the witnesses with respect to his engagement.
In the absence of any other similarly corroborative circumstances, I do not find it safe to rely on the remaining version given by these wittiness; this version also appears to me to be generally vague and highly exaggerated. None of them is in a position to trace the movements of the said jathas during the course of the fifteen days. In this connection omission to state the details in the petition is also not without significance. Most of these witnesses would also have us believe that they never talked to the appellant or his workers about the meetings addressed by the musicians. It is a little difficult to believe this assertion which seems to be rather unnatural and uncommon. If what they say is correct, then it is not understood--and there is no convicting explanation--as to how the appellant thought of producing them as witnesses. The testimony of these witnesses appears to me to be unimpressive and uninspiring, and I cannot persuade myself to place implicit reliance on it.
(13) As a result of the above discussion my conclusion is that on this record Rs. 315/- only have been established to have been incurred or authorised as expenditure in connection with the election in question, which were not included in the return. But even if it be held that a sum of Rs. 980/- had been incurred, as found by the Tribunal--with which I do not agree--the total amount of expenses would not exceed the permissible limit.
(14) It has next been contended on behalf of the appellant that in any case non-inclusion in the return of expenses of the amount proved on this record to have been paid to Ram Singh Jhabewalia by itself is a corrupt practice invalidating the election. The argument is that section 123(6) makes the incurring or authorising of expenditure in contravention of S. 77 of the Representation of the People Act, 1951, a corrupt practice and under S. 77 every candidate is enjoined, by himself or by his election agent, to keep a separate and correct account of all expenditure, in connection with the election, incurred or authorised by him or by his election agent, and under S. 78 every contesting candidate I under an obligation to lodge with the returning officer an account of his election expenses which must be a true copy of the account kept, with the result that if an item of expenditure actually incurred is not contained in the return, then the election must be set aside.
I do not find it possible to uphold this contention. The argument ignores that under S. 123(6) it is 'the incurring or authorising of expenditure in contravention of S. 77' which is made a corrupt only have reference to S. 77(3). It is common ground that the amount prescribed under this sub-section for the election in question is Rs. 7,000/-. It may be open to argument that failure to keep separate and correct account of expenditure and to lodge with the returning officer a true copy of the account kept amounts to non-compliance with the provisions of Act 43 of 1951 or of any rules or orders made thereunder and, therefore, falls within the purview of S. 100(1)(d)(iv), but then it is not the petitioner-appellant's case that any such non-compliance has, in fact, materially affected the result of the election in so far as it concerns the returned candidate.
There is no plea, no issue and no decision by the Tribunal on this part of the case and indeed there has been no argument before us and on this precise aspect. The contention on the basis of failure to keep separate and correct accounts and to lodge a true copy thereof, is thus misconceived at this stage and, therefore, must be repelled.
(15) Coming to issue I, II and II, the learned counsel has frankly dropped the allegation with respect to Jagir Singh which, he says, is not sufficiently and properly proved on the record. With respect to Malkiat Singh Qanungo, however, he has taken us through the evidence of P.W. 57 Mahan Singh, P.W. 58 Kartar Singh and P.W. 59 Santa Singh from village Chima. Their version is that Malkaiat Singh Qanungo, a person in the service of Government, who had effected consolidation of land in village Chima some time prior to the election in question, went to their village accompanied by Mohinder Singh and Bibi Harparkash Kaur and asked the witnesses to support her, which they did. The witnesses have further stated that Malkiat Singh told them to help Bibi Harparkash Kaur, failing which they would come to grief; their case being that they were under the influence of Malkiat Singh Qanungo because at that time their appeals against orders passed in consolidation proceedings effected by him were pending and they were given to understand that they would suffer if they did not comply with wishes.
These facts are stated to constitute a corrupt practice falling within the purview of S. 123(7). Malkiat Singh Qanungo has appeared as a witness as D.W. 11 and has denied having gone to village Chima for the purpose of helping the respondent in her election. Bibi Harparkash Kaur and Mohinder Singh have also denied this allegation in the witness-box. The testimony of the petitioner-appellant's witnesses did not impress the Tribunal who had examined them. Nothing has been shown by the counsel inducing us to differ from the conclusions of the Tribunal who has considered every aspect, including the sketch nature of the allegations in the petition and the absence of full, detailed and precise particulars, even in the statement of the petitioner before the issues. The Tribunal has, after a well-reasoned discussion, expressed his conclusions in these words:
'The evidence adduced by the petitioner regarding conduct of Malkiat Singh Qanungo neither inspires confidence nor is sufficient to prove the allegation, considering that the standard of proof required in such cases is that which is adopted in a criminal trial.'
After hearing the counsel, in my view, there is no sufficient balance of improbability to displace the Tribunal's opinion as to where the credibility lies and the appellant has failed in dislodging the findings of the Tribunal.
(16) The counsel has submitted that with the election petition was attached an Annexure showing that a complaint to the chief Election Officer, Chandigrh, had been made during the election days with respect to Malkiat Singh Qanungo, amongst others, who were canvassing on behalf of the respondent. It is submitted that in view of the fact that this allegation was made during the course of election, it has a corroborative value which the Tribunal has ignored. Malkiat Singh being himself a guilt person, in having violated the provisions of the Representation of the People Act, can obviously not be relied upon; the position of Bibi Harparkash Kaur and her election agent Mohinder Singh, according to the appellant, it still worse, being directly and vitally affected by the proof of this corrupt practice.
It is also emphasised in this connection that these witnesses having been adversely criticized by the Tribunal with respect to their trustworthiness, their denial should not carry much value. I agree that if the petitioner-appellant's evidence had been considered to be trustworthy and credible, then the statements of Malkiat Singh, Bibi Harparkash Kaur and Mohinder Singh would perhaps have not afforded a sufficient rebuttal, but, as already observed, we are in complete agreement with the finding of the learned Tribunal that the petitioner-appellant's evidence is not sufficient to establish that Malkiat Singh actually assisted the respondent in furtherance of the prospects of her election.
(17) I may at this state also, in passing, notice the view expressed by the learned Tribunal in connection with this allegation, on which Mr. Doabia has also placed reliance before us. It has been observed that even if it had been found that the two Revenue Officers. Malkiat Singh and Jagir Singh, had in fact canvassed support for the respondent, this finding alone would not be enough to attract the provisions of S. 123(7), because there was no evidence on the present record that Bibi Harparkash Kaur or her election agent or any other person had obtained or procured or attempted to obtain or procure their assistance.
In support of this view the Tribunal referred to certain reported decisions, e. g. 4 ELR 188; Rikhabdas v. Ridhichand Palliwal, 9 ELR 115; Raj Krushna Bose v. Binod Kanungo, 9 ELR 294: (AIR 1954 SC 202); Motilal v. Mangla Prasad, 15 ELR 425: (AIR 1958 All 794); Biresh Misra v. Ram Nath, AIR 1959 Assam 139; and Banbihari Mukerji v. Bhejnath Singh, AIR 1932 Cal 448.
In view of our decision in refusing to place reliance on the evidence produced by the appellant, this question does not really arise, but since Mr. Doabia has raised this point in his arguments, it is only fair and proper to notice it. In my humble opinion the learned Tribunal does not seem to be quite right in its observations and I am unable to concur with them.
If the evidence of P.W. 57, P.W. 58 and P.W. 59 is to be relied upon and considered trustworthy, then it is a little difficult to believe that the respondent and Mohinder Singh were just passive recipients of assistance from Malkiat Singh Qanungo and I cannot persuade myself to hold that they were mere inactive observers of what the Qanungo was supposed to be, by himself, doing in canvassing support for the respondent in village Chima.
The evidence of the aforesaid witness, if believed, clearly tends to lead to the almost irresistible conclusion that Malkiat Singh went to village Chima at the instance of the respondent and Mohinder Singh for the purpose of enlisting support form the voters in furtherance of the respects of the respondent's election. The resorted decisions to which reference has been made appear to me to be distinguishable and they can hardly serve as a safe guide for coming to a correct conclusion on the evidence led on the point in issue on the present record.
The police of the law seems to me clearly to keep Government servants aloof from politics and also to protect them from being imposed upon by those with influence or in position of authority and power. In my humble opinion to prevent them from actively canvassing for a particular candidate dos not amount to disenfranchising them within the contemplation of the rule laid down by the Supreme Court in 9 ELR 294: (AIR 1954 SC 202) as the learned Tribunal seems to think. The Tribunal does not appear to have grasped the true import of the observations of the Supreme Court which have to be construed in their own context.
It is unnecessary to pursue this matter any further, as we have, in agreement with the Tribunal, rejected the appellant's evidence as sufficient to establish the alleged assistance by Malkiat Singh Qanungo.
(18) Mr. Doabia has also prayed that we should vary the order of the Tribunal refusing to award costs to his client and direct the petitioner-appellant to pay to the respondent her costs incurred in the Tribunal. The Tribunal ordered the parties to bear their own costs on the ground that the conduct of the respondent did not entitle her to costs of the petition, she having falsely denied the employment of the musicians and also having taken up a false position with regard to the receipt evidencing payment to Ram Singh Jhabewalia and further having lodged a false return of election expenses. I do not think it is open to us on appeal by Lachhman Singh Gill to vary or even to go into the merits of the order of costs passed by the Tribunal in his favour and against the respondent. The competency of appeal or cross-objections on the question of costs was not canvassed before us, the respondent conceding that she could not prefer any appeal in the matter of costs only. If this be so, then apparently such an order must be held to be final. Besides, the order awarding or refusing costs, is a matter primarily in the discretion of the Tribunal, and it is not shown that the order in the present case is in my way perverse or even contrary to law. No principle or precedent has been quoted by the counsel in support of his contention and even the grounds on which costs were disallowed have not been dislodged by him.
(19) For the reasons given above, this appeal must fail and is hereby dismissed with costs.
S.S. Dulat, J.
(20) I agree.
(21) Appeal dismissed.