J.C. SHAH, J.
1. At the mid-term elections held in February, 1969, Bam Dev (appellant in this appeal) was declared elected to the Punjab Legislative Assembly from the Nangal Constituency. Sarla Prashar a defeated candidate applied to the High Court of Punjab and Haryana for an order setting aside the election of Bam Dev. She pleaded that Bam Dev and Munshi Ram — another candidate at the election — had committed corrupt practice described in Section 123, sub-sections (1), (6) and (7) of the Representation of People Act, 1951. On the plea raised by the petition four issues were raised by the High Court, but counsel for the first respondent did not press Issues 3 and 4 at the trial. Those issues need not be considered. The remaining two issues were —
“1. Whether Respondents 1 and 2 (Bam Dev and Munshi Ram respectively) are guilty of a corrupt practice of bribery within the meaning of Section 123(1) of the Representation of people Act, as alleged in para 4 of the petition?
2. Has Respondent 1 (Bam Dev) incurred expenses more than the permissible limit for the purpose of his election and thereby has committed a corrupt practice within the meaning of Section 123(6) of the Representation of People Act?”
The High Court recorded a finding on the first issue in the affirmative and the second in the negative.
2. In para 4 of the election petition it was alleged by the first respondent that Bam Dev had persuaded Munshi Ram to stand as a candidate at the “last mid-term elections” and had persuaded him not to withdraw from the contest and in consideration thereof he had offered to Munshi Ram an amount of Rs 3000 and had undertaken to bear all the election expenses aggregating to Rs 3000. The details of the amounts alleged to have been spent or paid by Bam Dev on behalf of Munshi Ram were as follows —
(a) a sum of Rs 150 paid by Bam Dev to enable Munshi Ram to deposit security at the time of filing of the nomination paper;
(b) a sum of Rs 3000, paid by Bam Dev on January 12, 1969, in the house of Munshi Ram at Nangal;
(c) a sum of Rs 400 paid by Bam Dev to a tonga owner on February 8, 1969, whose tonga was used for the purpose of carrying on election propaganda for Munshi Ram;
(d) a sum of Rs 1,100 out of which only a part was paid to the owner of the loudspeaker for getting the same fitted to the tonga hired by Munshi Ram from January 20 to February 7, 1969;
(e) a sum of Rs 125 paid by Bam Dev to Kapila Printing Press on January 31, 1969, for getting posters printed for Munshi Ram.
The High Court was of the view that the evidence led by the first respondent in respect of items (a) and (b) was “absolutely worthless” and counsel for the first respondent did not press that case before us. But in the view of the High Court it was proved that Bam Dev paid Rs 400 to Ram Sarup, owner of a tonga employed by Munshi Ram for his election campaign, and Rs 700 to Hazura Singh for fitting a loudspeaker to the tonga used by Munshi Ram. Payment, according to the High Court, was made through the Jan Sangh Party which had sponsored the appellant Bam Dev as its candidate, and since the expenditure incurred by the Jan Sangh Party was incurred by Bam Dev by making payments to Ram Sarup and Hazura Singh he committed a corrupt practice within the meaning of Section 123(1) of the Act. The High Court also held that it was established that a sum of Rs 18 was paid on January 31, 1969, by Bam Dev to the printer who printed a pamphlet in support of the election campaign of Munshi Ram and was included in Bam Dev's account of election expenses. The High Court held that Bam Dev, in discharging this liability of Munshi Ram, was guilty of a corrupt practice described in Section 123(4) of the Representation of the People Act, 1951.
3. In our view the judgment of the High Court cannot be sustained. Ram Sarup deposed that his tonga was engaged by Munshi Ram for his election compaign; that he (Ram Sarup) used to “take the hire from the office of Bam Dev”; that the money was received from the President of Jan Sangh and “at that time Bam Dev was standing”. This evidence does not support the case that the payment was made by Bam Dev ‘through the Jan Sangh”. Munshi Ram was a candidate at the election. The testimony of witness Ram Sarup only establishes that payment for the tonga engaged by Munshi Ram was made by the President of the Jan Sangh Party. Mr Hardev Singh on behalf of the first respondent contended that the Jan Sangh Party had no funds and Bam Dev alone was the financier of the Jan Sangh Party. On this part of the case our attention has not been invited to any evidence.
4. The testimony of Hazura Singh also is infirm. The witness stated that his “loudspeakers” were used by the Jan Sangh Party in the mid-term poll, and “A loudspeaker” was fitted to the tonga of Ram Sarup and the hire charge for the “loudspeaker” was paid by the Jan Sangh Party. He claimed that he had received as hire an amount of Rs 1450 which was paid by the President of the Jan Sangh Party. The witness admitted that he maintained no accounts, and that he had no conversation with Bam Dev in regard to the payment. The testimony of the witness is unreliable and there is nothing to connect the alleged payment by the President of the Jan Sangh Party with Bam Dev.
5. Reliance was placed upon the testimony of Bam Dev who admitted that in respect of certain vouchers which he had included in his election expenses, although payments were made by him the vouchers were made out in the name of the Jan Sangh Party. Bam Dev claimed that he had asked his agents to make purchases of goods and obtain certain services and in respect of the goods purchased and services obtained bills had been issued in the name of the Jan Sangh Party and he had made the payments. It is not the case that all the vouchers which Bam Dev produced with his account were obtained in the name of the Jan Sangh Party. It cannot be inferred that because in respect of some vouchers issued in the name of the Jan Sangh Party, payment was made by Bam Dev, it follows that for all vouchers in respect of goods purchased or services rendered and issued in the name of the Jan Sangh Party, Bam Dev had made payments. We are unable to hold that the payments made to Ram Sarup and Hazura Singh by the Jan Sangh Party were made by Bam Dev through the Jan Sangh Party.
6. Reliance was also placed on the evidence of witnesses who deposed that there was an arrangement between Bam Dev and Munshi Ram that the former will meet the election expenses of the latter. Charanjit Lal and Khushal Singh have deposed to that effect. Part of the evidence is hearsay and should not have been admitted. Even otherwise, the evidence was so infirm that no reliance could be placed upon that evidence. The two witnesses admitted that they were ordered by their party organization to appear as witnesses and to support the case of the first respondent. The story was again not put in cross-examination to Munshi Ram who was examined as a witness more than a week after the two witnesses were examined in Court.
7. The third payment of Rs 18 on which reliance has been placed requires a detailed analysis of the evidence. It was claimed by the first respondent that Rs 125 were paid by Bam Dev to Kapila Printing Press on January 31, 1969, for getting posters printed for Munshi Ram. At the trial counsel for the first respondent said that there was no evidence in support of the case except as to the amount of Rs 18 which it was alleged was paid by Bam Dev to the Kapila Printing Press on account of Bill (Ex. PW 6/3) drawn in favour of Munshi Ram. The owner of the Kapila Printing Press, Atma Ram deposed that Bam Dev did not get any printing work done by him during the mid-term election, but work was got done by the Jan Sangh Party; that Munshi Ram had also got some work done at his printing press; that he has brought the relevant record; that the credit memo, a carbon copy of which had been marked as Ex. PW 6/1 was issued by him and that pertained to the printing done for the Jan Sangh Party; Ex. PW 6/2 was a carbon copy of the credit voucher of Munshi Ram; Ex. PW 6/3 was the original of Ex. PW 6/2. He further deposed that the payment regarding Ex. PW 6/3 was made by Munshi Ram and those bills related to the material published regarding the election in the mid-term poll. Atma Ram PW 6 was examined on behalf of the first respondent. The witness was not sought to be treated as hostile and his testimony completely destroyed the case of the first respondent.
8. Munshi Ram stated that he ordered that a pamphlet be printed. In respect of that pamphlet Ex. PW 6/3 was issued and that he (Munshi Ram) had made the payment and not Bam Dev. Bam Dev also bore similar testimony. In respect of this part of the case the first respondent had no personal knowledge. The oral testimony and the contents of the receipt Ex. PW 6/3 clearly established that the bill related to a pamphlet published by Munshi Ram and not by Bam Dev.
9. Bam Dev had, however, included an amount of Rs 18 paid on January 31, 1969, to the Kapila Printing Press and this apparently related to Ex. PW 6/3. Bam Dev explained that there was a mistake committed by his accountant in including that amount in his election expenses. He asserted that he had not paid that amount. Bam Dev claimed that all the accounts were maintained by his election agent. We do not think that merely from the inclusion of the amount of Rs 18 paid to the Kapila Printing Press on January 31, 1969, in the account filed under Section 72 of the Representation of People Act of his election expenses, it must follow that Bam Dev had entered into an arrangement with Munshi Ram under which the latter agreed not to withdraw his candidature on promise or payment of a bribe. To make out a case under Section 123(1) of payment of a bribe or promised gratification to Munshi Ram with the object directly or indirectly of inducing Munshi Ram not to withdraw from being a candidate at the election, the oral evidence with regard to the payment of Rs 18 negatives the plea. The case of Bam Dev that it was due to some mistake of his accountant that the voucher Ex. PW 6/3 was included in the election expenses is not improbable. Again there is no evidence to prove that payment was made with the object of directly or indirectly inducing Munshi Ram to withdraw his candidature from the election.
10. The High Court observed that the following seven circumstances support the conclusion that there was such an arrangement. They are —
(i) that Bam Dev was a candidate of the Jan Sangh Party;
(ii) that the election office of Bam Dev and the Jan Sangh Party office were in the same building at Nangal;
(iii) that out of the total number of vouchers, i.e. 156, filed with the return of the election expenses, 45 are drawn in the name of the Jan Sangh Party and that Bam Dev has admitted that the payment regarding these vouchers was made by him;
(iv) that payment of Hazura Singh, PW 9 was made by the Jan Sangh Party;
(v) that Bam Dev has not disclaimed that the Jan Sangh Party was actively helping him;
(vi) that no money was paid to the workers by the Jan Sangh Party but the workers had money and they paid the price of petrol used in connection with election work of Bam Dev and
(vii) that though Bam Dev maintained accounts regarding his election expanses, he has not produced the same and also has not produced his election-in-charge who kept those accounts. No account was maintained by the Jan Sangh Party.
These circumstances taken separately or collectively do not prove that Bam Dev had entered into a bargain with Munshi Ram by giving him any gift or offer to pay him any gratification in consideration of the latter agreeing not to withdraw his candidature from the election.
11. The appeal is therefore allowed and the order passed by the High Court is set aside. The appellant will be entitled to his costs in this Court and in the High Court.