1. This is an appeal against the order of the Election Tribunal, Madurai II, setting aside the election of the appellant to the seat for the single member Parliamentary constituency of Krishnagiri on a election petition filed by the respondent (E. P. No. 349 of 1957). For the said seat there were five candidates out of whom one withdrew. The appellant secured the largest number of votes and on 8-3-1957 he was declared as the returned candidate.
The respondent. M. G. Natesan Chettiar, as elector for the Krishnagiri Assembly constituency which is one of the constituencies comprised in the Krishnagiri Parliamentary constituency filed an election petition out of which this anneal arises praying that the election of the appellant be declared void & one G. D. Naidu who had secured the largest number of votes after the appellant be declared duly elected. The election of the appellant was sought to be set aside on several grounds which included charges of corrupt practices committed by the appellant.
For the disposal of this appeal it is not necessary to mention all of them because the Election Tribunal found that excepting the corrupt practice to which we shall refer presently the election petitioner had not proved the commission of any other corrupt practice set out in the election petition. The material allegations in the election petition relating to the corrupt practice of which the Election Tribunal found the appellant guilty are as follows :
"The petitioner states that the first respondent has incurred and authorised the expenditure in contravention of Section 77 of the Act and committed a corrupt practice under Section 123(6) of the Act. He has incurred an expenditure of over Rs. 25000. In his return of election expenses he has not taken into consideration the heavy expenditure incurred by the Congress Party in furtherance of his candidature. The Congress Party has incurred heavy expenditure of many thousands of rupees in furtherance of the prospects of the election of the first respondent and other Congress candidates who stood for election to the Assembly in the Krishnagiri Parliamentary constituency.
The expenditure has been incurred in various ways by the Congress Party by doing propaganda in support of the Congress Party candidates including meetings, processions, dances, dramas, feeding and many other diverse ways. I state that Section 77 referred to in Section 123(6) of the Act provides that 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 that the account shall contain such particulars as may be prescribed and that the total of the said expenditure shall not exceed such amount as may be prescribed.
The particulars which the accounts shall contain is provided for in Rule 131. The maximum amount of expenditure is provided for in schedule III. Section 78 of the Act provides that the Return of Election expenses shall be a true copy of the accounts kept by the candidate or by his election agent under Section 77. The petitioner states that on an examination of the return of election expenses made by the first respondent it will be found that he has contravened the provisions of Section 77 of the Act and therefore committed a corrupt practice under Section 123(7) of the Act. The first respondent has failed to conform to the provisions of Section 77 and he has exceeded the maximum amount prescribed for expenditure for the election."
2. The appellant traversed these allegations in paragraph 23 of his counter statement which runs thus :
"The statements in paragraph 31 that this respondent incurred or authorised expenditure in excess of the prescribed maximum are false and are denied. This respondent kept separate accounts of all expenditure in connection with the election as required by the rules. This respondent states that he is not concerned with any expenditure incurred by the Congress Party in furtherance of its election campaign all over the State and country. This respondent is advised arid states that he is not obliged to include in his account items of expenditure neither incurred nor authorised by him. The petitioner has failed to state what exactly are the items of expenditure which he incurred or authorised and which ought to have formed part of his return and the allegation therefore lacks particulars. This respondent has submitted a correct statement of accounts, without violating any rules."
3. The appellant asked for particulars of the corrupt practice above mentioned, that is to say the precise items of expenditure incurred or authorised by the appellant which according to the respondent (election petitioner) ought to have been included in the return of election expenses. The respondent furnished a list of such expenses. This list included seven items out of which it is sufficient to mention one because the election tribunal found that the respondent had failed to prove the other items. That one item is item No. 7.
"Expenses incurred for advertisement for canvassing votes by paintings on walls in Dharmapuri, Penagaram, Papparapatti, Pallakode, Krishnagiri, Kaveripatnam and other places of major panchayat areas are not shown in the accounts."
Regarding this item the appellant in his counter affidavit stated as follows :
"Such expenses as I incurred for the advertisement by painting on walls in the constituency have been disclosed in the return. I submit that in any event no corrupt practice under Section 123(6) has been committed by me and I have not incurred expenditure in excess of the prescribed maximum.''
Issue 8 which was raised on these pleadings runs as follows :
"Whether the first respondent spent in connection with his election, any amount in excess of Rs. 25,000, whether the first respondent omitted to include in his account any item of expenditure actually incurred by him in connection with his election and whether he is guilty of a corrupt practice under Section 123(6) of the Act."
The corrupt practice set out in Section 123(6) of the Representation of the People Act 1951 is "The incurring or authorising of expenditure in contravention of Section 77. Section 77 is in the following terms :
"Section 77. Account of election expenses and maximum thereof:
(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 accounts shall contain such particulars, as may be prescribed;
(3) The total of the said expenditure shall not exceed such amount as may be prescribed." Evidence was adduced on the item of expenditure above mentioned. In the course of the evidence, however, there was another item which was revealed and it was admittedly not included as such in the account of the appellant's election expenses, namely, the charge or a telegram despatched by the appellant to Madras on or about 28th February or first of March. The Election Tribunal found the appellant guilty of corrupt practice under Section 123(6) of the Act in that he admitted (1) failure to include in the account of his election expenses two items of expenditure incurred by him and (2) to mention particulars thereof and obtain vouchers therefor, and contravened the provisions of Section 77 (1) and (2) of the Act.
He also found that no attempt was made to prove the charge that the appellant had incurred an expenditure in excess of the maximum allowed by the rules. In the result though the election of the appellant was found to be free from any corrupt practices attributed to him the Election Tribunal found that he was bound to perform his statutory duty and declared the election void on the ground that the appellant had committed an offence which fell under Section 123(6) of the Act. The Tribunal, however, refused to grant the second prayer of the respondent, namely, that C.D. Naidu should be declared duly elected.
4. The learned Advocate General who appeared for the appellant challenged the correctness of the findings of the Election Tribunal both on facts and on law. We shall first take up the question of fact and then deal with the question of law.
5. Item 7 of the list of items furnished by the respondent of the expenses alleged to have been incurred by the appellant and not included in the election expenses account relates to advertisement for canvassing votes by painting on walls in Dharmapuri, Pennagaram, Papparapatti, Pallakode, Krishnagiri and other places. The evidence regarding this item adduced by the respondent election petitioner is as follows :
The expenses incurred for wall painting in about 200 places throughout the constituency, each of which would have cost about Rs. 5. The painting was "Vote for C. R. Narasimhan. Congress Candidate." P. W. 5 Mohanram spoke to his having seen the wall paintings with the Congress symbol asking to vote for the appellant and that he had seen one Chandrasekhara Asari making such paintings. This Asari was not examined. P.Ws. 6, 8, 9 and 10 also speak to their having seen the wall paintings as an item of election propaganda of the appellant. The last witness gave the size of the painting as two feet by one foot. The appellant himself was examined as R. W. 3. The material portion of his deposition is as follows :
"I have included in my account of election expenses the amount spent by me for making wall paintings of symbol viz, "Oxen". On 18-2-1,957 the amount incurred is debited. The amount is Rs. fifty and it was paid to Appadurai. Voucher No. 10 is the voucher taken from him. The painting is a simple affair and is what is called a tin stencil. The painting is made by two tin stencils one for the symbol of oxen on the file size namely 12 inches by 9 inches and the other a rectangular piece about 24 inches by four inches. The second rectangular piece contains my name. Rs. 50 is all the expenditure incurred by me in this matter and I have entered it in my account. No other expenditure was either incurred or authorised by me in this regard.....
I paid Rs. 50 in all to Appadurai for making tin stencil paintings. The amount includes both advance and final payment. I paid an advance and when the stencil was shown to me I paid the balance It was a bargain for a lump sum and not so much a piece. Rs. 50 includes everything including preparation of the stencil. I did not ascertain in which of the towns and villages the prints were made. I saw the impression only in Krishnagiri. My request was to put such impressions in all important towns in my constituency. He might have or might not have carried nut my directions. I do not remember whether my second payment was after the work was finished or not. Voucher No. 16 and No. 19 shown.
Q : I put it to you that these vouchers are for preparation of the tin stencil alone and do not include the paintings on the walls.
A : It is not so. The contract was for the execution of the entire work.
Q : I put it to yon that paintings were made on walls on your behalf in all important towns apart from the stencil impressions and that you have omitted from your amount of election expenses the expenditure incurred in that behalf.
A. I have included in my accounts all the expenditure incurred by me and I have not incurred or authorised any other expenditure. No painting on walk apart from stencil impressions were made by me or at my instance or on my behalf."
Obviously if the sum of Rs. 50 admittedly entered in the account represents the total expenditure for the wall paintings then there is no omission to enter this item of expenditure in the account. The voucher which was produced relating to payment of Rs. 50 contains the following recital:
"Tin stencils with pattern of symbol of oxen in connection with the general elections; inclusive of the charges for cutting 105 letters bill Rs. 50." The Election Tribunal refused to accept the contention of the appellant that the voucher and the account included the cost of painting of the walls. He considered that a sum of Rs. 59 was too small to cover the cost of tin boards, wage for cutting symbols and 105 letters expenses for travelling to and in important towns in the whole constituency, price of paint and charges for painting. The inference was that the expenditure incurred by the appellant for painting on the walls had been omitted to be included in the account kept by him and that, therefore, the appellant had contravened the provisions of Sub-sections (1) and (2) of Section 77 of the Act. Having perused the entire evidence bearing on the point we are unable to agree with the election tribunal.
Though the title has been given as expenditure for the wall paintings it transpires that they were mere stencil impressions, which would not involve much time or labour or, skill. We see no reason to disbelieve the appellant when he says that a sum of Rs. 50 was alt that he expended in connection with the paintings on the walls. There is no proof that more was incurred by the appellant for this purpose. The stencils themselves were only tin plates. We accept the appellant's statement and hold that the respondent has failed to prove the omission to include any expenditure incurred on the wall paintings other than what was included in the expenses account.
6. The next item of expenditure which the election tribunal held had been omitted to be included in the expenses account relates to a telegram sent by the appellant to a friend of his at Madras to bring a car for the purpose of the election. This item is not to be found in the list furnished to the Tribunal by the respondent. The basis for this charge is an alleged admission by the appellant himself in the course of his deposition. It is true that the appellant admitted having sent a telegram and that he might have omitted to mention the telegram by oversight. The matter was further elucidated in his re-examination in the following way :
"Q. Apart from inadvertence is there any other reason why the expenses for the telegram that you sent to your friend at Madras is not shown in the account of your election expenses.
A : There could be one or two possibilities. I might have used whatever stamps I had already in my possession or any reply telegraph form which I may have had or sonic one may have paid for it and may not have brought the bill to me and asked for the money. It might be that cash might not have at the moment passed from my pocket. At that moment I was working at a great strain."
7. A preliminary objection had been taken before the tribunal that this item should not be considered at all as it was not averred in the petition or in the particulars but the objection was overruled as it was permissible to consider another instance of corrupt practice though it will not be permissible to consider a new head of corrupt practice. The tribunal, further was of the view that when the fresh instance was based on the admission of the party himself there could be no objection on the ground of the want of pleading in that regard.
Accepting the validity of this legal position, if a finding has to be arrived at on the admission of a party it is well established that the admission has to be taken "as a whole. The election tribunal though aware of this rule nevertheless held that the whole of the appellant's admission is contained in the answers given by him in cross-examination and that what was said the next day in re-examination cannot be tacked on to the previous day's admission and even if it be tacked on it does rot detract from the guilt of the first respondent (appellant).
In the first place, we are unable to find any warrant for making an artificial division of a party's deposition according to the days on which the deposition was recorded. It is, of course, open to a court or a tribunal to refuse to accept any statement made by a witness in his chief examination, or cross-examination or re-examination. The election tribunal was wrong in saying that what was said the next day in re-examination could not be tacked on to the previous day's admission.
In the second place we arc, unable to agree with the Tribunal that even if it be tacked on it would not detract from the guilt of the appellant. If stamps which were used for the telegram were stamps which he had already purchased and the costs of those stamps had been included under the general heading of "postage" there would in effect be no further expenditure to be included in the account of expenses. On the meagre evidence on the point we hold that it has not been established beyond all doubt that the expense incurred for sending the telegram in question was not in eluded in the account.
8. In this view it is not necessary to deal with the question of law, namely, whether a mere omission to enter an item of expenditure in the expenses account would amount to a corrupt practice mentioned in Section 123(6) of the Act but as the matter was argued before us by the learned Advocate General and there is a possibility of an appeal to the highest court we shall deal with it. The corrupt practice in question is the incurring or authorising of expenditure in contravention of Section 77.
The gravamen of the offence is, therefore, the expenditure that is the act of spending in contravention of Section 77. Section 77 which we have extracted above consists of three sub-sections. Sub-sections (1) and (2) relate to the keeping of an account of all expenditure in connection with the election. Sub-section (1) enjoins on the candidate the duty of keeping a separate and correct account and Sub-section (2) lays down that such account shall contain such particulars as may be prescribed, Neither of these sub-sections relates to "expenditure", that is, spending money as such.
An account obviously relates to a period after the incurring of the expenditure and it contains entries of expenditure already incurred or authorised to be incurred by the candidate. On the plain language of these two sub-sections we find it impossible to hold that any failure on the part of a candidate to keen a correct account or to enter the necessary particulars in the account would amount to incurring or authorising an expenditure. Sub-section (3), however, clearly relates to expenditure as such because it says that the total of the expenditure shall not exceed the prescribed amount.
If more than the prescribed amount is expended then such expenditure would be in contravention of that provision and therefore in contravention of Section 77. But any contravention of the provisions of Sub-section (1) and Sub-section (2) of Section 77 would not be a corrupt practice which would fall within, Section 125(6) of the Representation of the People Act, because such contravention would not involve any| incurring or authorising of expenditure.
9. We find that this view of ours has been taken by four other High Courts.
10. In Sheopatsingh v. Narishchandra , a Division Bench (K. N. Wanchoo C. J. and Jagat Narayan J.) of the Rajasthan High Court held that mere non-maintenance of true accounts would not amount to a corrupt practice under Section 123(6) of the Act. The Tribunal had found in that case that the candidate had contravened Sub-section (1) of Section 77 inasmuch as he did not maintain a separate and correct account of the expenditure incurred or authorised by him in connection with the election between the date of publication of the notification calling the election and the date of declaration of the result thereof, and that such contravention would be a corrupt practice. The learned Judges refused to accept this construction of Section 123(6) and observed ;
"Under Section 123(6) it is only the incurring or authorising of expenditure in contravention of Section 77 of the Act which amounts to a corrupt practice. The non-maintenance of true accounts has not been laid down as a corrupt practice. An entry is made in the account book only after an expenditure is incurred or authorised. The corrupt practice consists of incurring or authorising of expenditure in contravention of Section 77.
Only Sub-section (3) of Section 77 deals with the incurring or authorising of expenditure, for it lays down that the total amount of the said expenditure shall not exceed such amount as may be prescribed; It is only when the total expenditure exceeds this amount that it can be said that it has been incurred or authorised in contravention of Section 77.
Section 124(4) of the Act prior to its amendment by Act No. 27 of 1956 provided that the making of any return which was false in any material particular would be a minor corrupt practice. That provision has since been deleted.
We are accordingly of the opinion that a contravention of Sub-sections (1) and (2) of Section 77 of the Act is no longer a corrupt practice, nor is the submission of a. false return of expenses a corrupt practice any longer."
The Madhya Pradesh High Court in K. C. Sharma v. Election Tribunal, explained the scope of Section 123(6) of the Act
"Where instances are cited to show that the prescribed maximum has been exceeded there may be a case under Sub-section (3) of Section 77 of the Act but the words 'the incurring or authorising of expenditure' do not lead to the application of Sub-section (2) or Sub-section (1) of Section 77 in the context of an election petition."
In Ram Abbilakh Tewari v. Election Tribunal Gonda, AIR 1958 All. 663 the charge made against the successful candidate was that the return of the election expenses which he had filed did not show the correct account of the expenditure incurred and authorised by him as it contained fictitious and concocted entries. Dealing with the allegation the learned Judges of the Allahabad High Court said,
"Such an allegation cannot be held to amount to a corrupt practice under Section 123(6) of the Representation of the People Act. Under that provision of law the corrupt practice consists in incurring or authorising expenditure in contravention of Section 77 which can only happen if a candidate incurs or authorises expenditure in excess of the maximum amount allowable under the rules framed under Section 77(3) of the Representation of the People Act."
In App. No. 199 of 1958 (published in the Bombay Gazette dated 18-9-1958) Desai and Miabhoy JJ. repelled an argument that failure on the part of a candidate to maintain a separate account with all the particulars required by Rule 131 of itself amounts to a corrupt practice within the ambit of Section 123(6) thus:
"In our judgment the contention is untenable. The language of Clause (vi) of Section 123 is express and explicit and that apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorising of expenditure in contravention of that section is a corrupt practice. Incidentally we may observe that there is a provision in the Representation of the People Act, 1951 which deals with 'disqualifications for membership of Parliament or of a State Legislature' and Clause (c) of that section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (vi) of Section 123 to discuss the matter in any detail. The present contention of the appellant must be negatived."
11. Two decisions of the Orissa High Court may now be briefly noticed though neither of them can be said to be a direct decision on the point.
12. In Pyari Mohan v. Durga Sankar, , it was inter alia alleged by the election petitioner that the election expenses account filed by the returned candidate did not show the expenditure incurred day by day by some of his workers. Narasimham C. J. dealing with this charge said:
"Even if this argument is taken as correct I do not think a slight irregularity in the maintenance of accounts as required by Rule 131 would he a corrupt practice for the purpose of Sub-section (6) of Section 123 of the Act. Doubtless, if any amount actually expended is not brought into the accounts it would clearly constitute corrupt practice inasmuch as the total amount of expenditure prescribed may be exceeded and thereby Sub-section (3) of Section 77 contravened. But every petty irregularity in the manner of maintenance of accounts so long as the correctness of the entries is not in doubt, will not suffice to bring Sub-section (6) of Section 123 of the Act into operation."
13. The above observations were clearly obiter dicta. There was no allegation in the case before the learned Chief Justice that any item of expenditure incurred by the candidate had not been incorporated into the account. Further it is not clear whether the omission to bring into the account a sum actually expended which even if added to the total expenditure would not result in the prescribed limit of expenditure being exceeded would, in the opinion of the learned Chief Justice constitute a corrupt practice. We are rather inclined to think that what the learned Chief Justice meant was that any omission or failure to include in the account a particular sum actually expended would amount to a corrupt practice only if the total amount of expenditure would be exceeded by the inclusion of that amount Then the contravention would really be of Sub-section (3) of Section 77 of the Act.
14. In Askbaya Narayan v. Maheswar Bag, there was no evidence to show that any item of expenditure incurred by the candidate's workers was not eventually brought into the accounts but it was found that such expenditure was not noted from day to day. On these facts, Narasimhan C. J. held that no corrupt practice had been committed, as a fact. Incidentally, however, he stated ;
"Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed, But so long as every item of expenditure is accounted for I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a corrupt practice."
Here again it is not clear that the learned Chief Justice meant to lay down that if any item of expenditure is omitted such omission would itself amount to a corrupt practice. To give a concrete instance suppose the maximum amount prescribed is Rs. 5000 and the account submitted by the candidate shows an expenditure of Rs. 4000 odd and it is discovered during the hearing of the election petition that a sum of Rs. 20 which had been expended by the candidate had not been included. Obviously the inclusion of this amount of Rs. 20 would not result in the exceeding of the prescribed limit. In such a case we are not certain that in the view of the learned Chief Justice even such an omission would amount to a corrupt practice even though there is no likelihood of the total expenditure exceeding the prescribed amount, In our opinion there is nothing in either of judgments of the Orissa High Court which militates against the view we have taken and which has also been taken by the High Courts whose decisions we have referred to above.
15. On this construction of Section 123(6) and Section 77 of the Act we hold that even assuming that the appellant had omitted to include the expenditure incurred by him for the wall paintings and for the telegram he would not be guilty of any corrupt practice under Section 123(6). There can be no doubt whatever that the addition of the said items of expenditure would not result in the maximum limit of expenditure being exceeded. As the election of the appellant has been set aside solely on the ground that he was guilty of a corrupt practice under Section 123(6) of the Act and as we have held that he was not so guilty this appeal is allowed and the order of the Election Tribunal setting aside the appellant's election is hereby set aside and the election petition filed by the respondent is dismissed with costs before the Election Tribunal. No order as to costs here.