Jagamohan Reddy, J.

1. The first respondent Govind Ramji Shende was declared elected as a member of the Maharashtra Legislative Assembly from Bhandara general constitutency on March 11, 1972. Fifteen persons had filed their nomination papers, before the last date for filing the nomination on February 8, 1972. These nomination papers were duly scrutinised on February 9, 1972 and accepted as valid. By the date fixed for withdrawal on February 11, 1972, eleven persons who had filed their nominations withdrew their candidature leaving only four persons to contest the election. Of these the first respondent contested the election as an independent candidate, the second respondent Tirpude, contested on Congress (R) ticket, the third respondent contested as a Republican Party (Khobragade Group) and the fourth respondent as a Republican Party (Gaikwad Group) candidates. These candidates polled respectively 41,511 : 24, 224 : 3,585 and 564 votes. As we have said earlier, the first respondent was declared elected as he had polled the highest number of votes and with a substantial majority of 17,287 votes.

2. Four electors from the constituency, of whom the first petitioner Baburao Bagaji Karemore was one, filed a joint petition challenging the election of the first respondent on various grounds of corrupt practices under Section 100 read with sub-section s(1), (2), (3), (3A), (4), (5), and (6) of Section 123 and for contravention of the provisions of Section 127A of the Representation of the People Act, 1951 - hereinafter called `the Act. It was alleged in the petition that the first respondent did not keep separate and correct account of all the expenditure incurred and authorised in connection with his election between the date of the publication of the notification of holding the election and the date of the declaration of the results thereof. Nor were these accounts kept in accordance with the provisions of S.77 of the Act read with Rule 86 of the Conduct of Election Rules - hereinafter called `the Rules - by not showing distinctly the date on which the expenditure was incurred or authorised, the nature of the expenditure, the amount of the expenditure, i.e. the amount paid and the amouunt outstanding, the date of payment, the names and addresses of payees, the serial number of bills and the names and addresses of the persons to whom outstanding are payable. It is also alleged that the first respondent has not obtained a voucher for every item of expenditure and the vouchers are not arranged serially in chronological order according to the date of payment as prescribed by Section 77 of the Act and the Rules framed thereunder. Although the outside limit of the expenditure which a candidate at an election to the Legislative Assembly was Rs.12,000/- the first respondent suppressed many items of expenditure which were in excess of that amount such an expenditure on items relating to petrol vehicle, printing, painting, loudspeaker and generator, hire charges of cycles, badges, serving of food and refreshment, processions and public meetings, bands, construction of booths, payment made to workers, office establishment etc. Apart from these suppressions, it is also alleged that M.T. Dalal R. W.1, and Shivshankar Ninave R.W. 10 who were active agents of the first respondent were carrying on systematic propaganda on his behalf and they were also incurring expenditure with the consent of the first respondent as well as his election agent Bhole and were authorised to incur expenditure on behalf of the first respondent. Apart from these two persons it was also alleged that Kharabe and Waghaye, father in law and maternal uncle respectively of the first respondent and Ramji Gaidhane who were actually carrying on a systematic election campaign and propaganda on behalf of the first respondent also incurred expenses on various items with the consent and authority of the first respondent and his election agent Bhole, which expenses were not shown in the return of election expenditure submitted by the first respondent. Several other instances were also given by the petitioners and it was alleged that if all these items of expenditure were included in the return of expenditure, the limit of Rs.12,000/- would exceed.

3. Secondly, it was alleged by the petitioners that in an election meeting held at Shahid Maidan of Bhandara on February 18, 1972 on behalf of the first respondent. Jambuwantrao Dhote, who belonged to the Maha Vidarbha Sangharsh Samiti and was actively supporting the candidature of the first respondent made a false statement of fact which he himself as well as the first should believed to be false or did not believe it to be true in relation to the personal character and conduct of respondent No.2 Tirpude as well as petitioners No. 1 Karemore. The said Jambuwantrao Dhote is alleged to have made a statement in his speech in that meeting that the respondent No.2 (Tirpude) secured the withdrawal of the petitioner No.1 (Karemore) by giving him a bribe of Rs.60,000/-. It was also alleged that these false statements were made by Dhote in the presence of the first respondent and with his consent and that the first respondent was present in the meeting when Dhote delivered the speech and also spoke subsequently in the same meeting. According to the petitioners, the first respondent got the said statement published in the Bhandara Times, a weekly, in its issue date February 23, 1972, which newspaper was for all practical purposes acting as his agent. At any rate, the statement was published with the consent of the first respondent and his election agent.

4. It was again alleged that the first respondent also got printed or caused to be printed election pamphlets and posters in which appeal to the voters on the grounds of caste and community was made. In this connection it was averred that the electors were asked to refrain from voting in favour of respondent No.2 (Tirpude) and other candidates on the ground of their race, caste and community and were asked to vote for himself on the ground of his race, csast and community with a view to further the prospects of his election and to prejudicially affect the election of other contesting candidates. The petitioners gave instances to show how this propaganda was carried on by issuing pamphlets by making it appear to the voters by statements of facts which were false and which the first respondent or the maker either believed to be false or did not believe to be true.

5. The first respondent denied that he made any statement in relation to the personal character or conduct of the second respondent. Tirpude, nor did his election agent or his workers with his consent or that of his election agent make any such statements, nor could it be said that any of those statements were reasonable calculated to prejudice the prospects of Tirpudes election. While admitting that Bhole P.W. 40 was his election agent, he denied that he himself or his election agent Bhole or any other person with his consent or that of his election agent committed any of the corrupt practices alleged in the petition, or that the alleged corrupt practices had materially affected the result of the election. It was also averred that the expenditure shown by him in the return of expenses was correct and the return was in accordance with law and the Rules framed in that behalf; that there was no contravention of the provisions of S.77 of the Act read with R.86 of the Rules and denied that he incurred expenditure much more than Rs.12,000/- as alleged in the petition. It was also denied that M. T. Dalal R.W.1 and Shivshankar Ninave R.W. 10 were his active agents and were carrying out systematic propaganda on his behalf or were incurring expenditure with his consent as well as of his election agent B.H. Bhole. All these allegations with respect to the part said to have been played by M.T. Dalal also known as Bhau Dalal and Shivshankar Ninave were denied. The first respondent, however, admitted that Bhau Dalal was only authorised to purchase petrol and all the expenses incurred by him had been shown in the return of expenses but denied that Kharabe, Parashram Waghaya and Ramji Gaidhane were actively carrying on a systematic election campaign and propaganda on his behalf or that they incurred expenditure on various items with his consent and authority or with the consent of his election agent Bhole. It was submitted that if these persons did incure any expenses it was on their own account and as friends or relatives, but he had not consented to their incurring the same nor did he authorise them to incur such expenses. In so far as the use of cycles, bands, loudspeakers, petromax and jeeps was concerned he denied that all of them were hired by him or his election agent or with his consent or with the consent of his election agent. Similarly the various other items of expenditure, besides these shown by him in the return of expenses, were also denied as having been incurred during his election propaganda either by him or his election agent or by any person with the consent of his election agent. All other allegations in respect of providing free conveyance for carrying the voters to polling booths or of having asked the voters to refrain from voting in favouur of Tirpude respondent No.2, or the other candidates on the ground of caste and community or in having asked the voters to vote for himself on the ground of his race, caste and community, or of having promoted or attempting to promote feelings of class or religious hatred or of having printed and distributed the several pamphlets mentioned in paras 35 to 38 of the petition was denied. Nor was any of the alleged acts indulged in to further the prospects of his election and to prejudically affect the election of the other contesting candidates. The averment that he and his election agent made allegations against the personal character or conduct of Tirpude respondent No.2 were, also likewise denied.

6. The first respondent further denied knowledge of the public meeting held on February 18, 1972, at Bhandara where Jambuwantrao Dhote is alleged to have made a speech. He denied that any statement relating to the personal character and conduct of Tirpude (second respondent) as well as Karemore (first petitioner) was made either by Jambuwantrao Dhote or by him or that those statements were made knowing them to be false or not believing them to be true. He denied all knowledge about Jambuwantrao Dhote having made any statement assailing the conduct and character of the rival candidate Tirpude. He denied that he was present at the said meeting wherein Dhote is alleged to have delivered the speech or that he spoke in the said meeting. He also denied that the Bhandara Times, a Weekly published at Bhandara was making a propaganda on his behalf or that the said Weekly was acting as his agent. Accordingly he denied committing any corrupt practice within the meaning of S.123 (1), (2), (3), (3A), (4), (5), and (6) of the Act.

7. Shende also denied that he got printed or caused to be printed election pamphlets and posters contrary to the provisions S.127-A of the Act, nor did he make any appeal on the ground of cast and community and exploited the communal sentiments or appealed to the voters to refrain from voting for the other candidates belonging to the scheduled caste.

8. At this stage we may point out that though the third respondent filed his written statement practically admitting all the allegations in the petition against the first respondent subsequently he filed an application that he be permitted to withdraw the power of his counsel A.M. Deshmukh through whom the written statement was filed and also to withdraw his written statement A.M. Deshmukh was permitted to withdraw his power from the case, but the third respondent was not permitted to withdraw his written statement. Thereafter the third respondent did not take any part in the proceedings Respondent No.4 neither appeared nor filed his written statement. Consequently the trial proceeded ex parte against both respondents Nos. 3 and 4 Respondent No.2 though represented did not file his written statement.

9. On these pleadings as many as 31 Issues were framed by the High Court, of which Issue No.1 related to a preliminary objection that the petition was liable to be rejected for nonjoinder of all the persons who had filed their nomination papers for the election. The High Court decided this issue against the first respondent, but all other issues were held not proved by the petitioners and consequently the petition was dismissed with costs of the first respondent together with the counsels fee of Rs.14,400/-. As the first respondent was represented by more than two counsels, and as there were 36 effective hearings counsels fees where the first respondent was represented by more than two counsels was assessed at Rs.400/- per effective hearing, and where only one counsel represented him it was assessed at Rs.250/- per effective hearing. Respondent No.2 was not awarded any costs as he was held to be colluding with the petitioners who in fact were espousing his cause. Respondents Nos. 3 and 4 were also not awarded any costs as they were ex parte. The petitioners were directed to bear their own costs.

10. In this appeal the learned Advocate for the appellants at the very outset indicated that the appellants are restricting their case to the three heads of corrut practices, namely :

1. Under Section 123 (4) of the Act for publication of false statements of fact in relation to personal character or conduct of the candidate or in relation to the candidature or its withdrawal.

2. Under Section 123 (6) for incurring or authorising expenditure in contravention of S.77 of the Act.

3. Under Section 123 (3) for making an appeal on the ground of caste or community by printing pubishing and distributing pamphlets Exts. 42 and 43.

11. Issues under the first head are as follows :

23 (a) - Did the respondent no. 1 make statements of facts in relation to personal character or conduct of the contesting candidate N. K. Tirpude by himself, by his election agent or his workers and agents with his consent and that of his election agent

(b) - Where these statements false and were believed by the respondent no. 1 or his workers to be false and not believed to be true

(c) - Were these statements reasonably circulated to prejudice the prospects of the election of Tirpude

12. The finding of the High Court on all these Issues was in the negative.

26. (a) - Did Jambuwantrao Dhote address an election meeting on 18-2-1972 at Shahid Maidan, Bhandara

(b) - Did he in that meeting make a statement of fact in relation to the personal character and conduct of Tirpude and Karemore

(c) - Was such statement false to the knowledge of the maker as well as the respondent no.1

(d) - Did Dhote in his speech make a statement that Tirpude secured the withdrawal of Karemore by giving him a bribe of Rs.60,000/- and was this a false statement

(e) - Was his statement made in the presence of the respondent no.1 with his consent

(f) - Was the statement published in the Bhandara Times purported to have been made by Dhote, published with the consent of the respondent no.1 and his election agent

(g) - Was the Bhandara Times acting as the agent of the respondent no.1

13. The High Court though it held on issue No.6 (a) that such a meeting was held at Bhandara found in respect of issue 26 (b) to (g) that they were not proved.

14. Issues under the second head are as follows :

2. - Did the respondent no.1 or his election agent B. H. Bhole and other persons with the consent of the respondent no.1 Shende and his election agent commit acts enumerated hereunder.

(a) (i) Incurring or authorising of expenditure in contravention of S.77 of the Representation of the People Act

(ii) Not keeping the account as per provisions of Section 77 read with Rule 86 of the Conduct of Election Rules

(iii) Not arranging serially in chronological order the vouchers according to the date of payment as prescribed by Section 77 and the Rules framed thereunder.

(d) - Did the respondent No.1 take out a procession on 1-3-72 accompanied by loudspeaker, band, tube lights, petromax etc. and incur expenditure therefor through himself or his election agents and were not accounted for in the return

15. The finding of the High Court on issue 2 (a) (i) to (iii) was in the negative and that issue 2 (d) was that expenses for the possession date March 1, 1972 have been accounted for in the return.

3. Did the respondent no.1 take cycles on hire as under :

(d) 15 cycles for 20 days at the rate of 1.50 per day from Fakruddin Patel of Choota Bazar, Bhandara

16. The High Court found this issue not proved.

4 (b) - Did the workers of the respondent no.1 take their meals at the cost of the respondent no.1 at Kirti Boarding and Lodging Hotel, Bhandara

(c) - Did the respondnet no.1 incure an expenditure of about Rupees 2,000/- on the meals and refreshment of these workers

(d) - Did the respondent no.1 incur an expenditure at the Kirti Hotel of Rs.630/- between 10-2-72 to 18-2-72 Rs.715 between 19-2-72 to 29-2-72 Rs.650.55 between 1-3-72 to 6-3-72

(e) - Was this amount paid by the respondent no.1 through Sheoshankar Ninave

(f) - Was this expenditure incurred by Ninave with the consent and authorisation of the returned candidate Shende or his election agent

17. The finding of the High Court on all these issues was in the negative.

5 (a) - Did the respondent no.1 hire jeeps, Ambassador cars, taxies, tempos and tractors for the purposes of canvassing in the constituency bearing nos. (1) MPC-9029-Jeep, (2) MRG-98-Taxi, (3) MHG-191-Taxi, (4) MRG-216-Car, (5) MHN-4391-Car, (6) BYJ - 5107 - Car, (7) MHG-3105-Truck, (8) MHG-3683-Tractor, (9) MHX-5080-Tractor, (10) MHG-2902-Tempo and (11) MHG-143-Taxi

(b) - Were the above vehicles taken on hire by the respondent no.1 and used by him and his workers and his election agent for the purpose of election propaganda

(c) - Did the workers of the respondent no.1 use those vehicles with his consent or of his election agent

18. The finding on issue 5 (a) was that only Taxi No. MHG-191 was hired but not by the respondent no.1: finding on issue 5(b) was that Taxi No.MHG-191 was used by the workers of the respondent no.1 for the purpose of election propaganda and the finding on issue 5 (c) was in the negative.

7 (d) - Did the respondent no. 1 incur an expenditure of Rs.8,000/- for the purchase of petrol and diesel oil for cars, jeeps, taxies, trucks and tractors from various petrol pumps such as Gurjar Brothers Petrol Pump, Bhandara, Petrol Pump of Sale and Purchase Society at Tumsar and from Kulwal and Sons of Tumsar for the purpose of the several vehicles used by him for an election propaganda and

(e) - Was this expenditure incurred by him or his workers with his consent or with the consent of his election agent

(f) - Did the respondent no.1 purchase petrol and diesel oil through M.T. Dalal, Kharabe, Ninave and Saxena

(g) - Were the charges for the purchase of this petrol and diesel actually incurred by the respondent no.1 through his workers

(h) - Did the respondent no.1 take camouflage receipts in the name of Jana Sangh and Congress (O) parties to conceal the ture nature of the transactions, though the expenditure was incurred and authorised by him

19. The finding on issue 7(d) was that petrol, oil, etc. worth Rupees 2-992-95 was purchased from Gurjar Brothers in addition to the amount shown in the return of expenses; the finding of 7(e), (f) and (g) was in the affirmative as regards the total amount of Rs.3,970-35; the finding on 7(h) was in the negative.

11 (a) - Did the respondent no.1 incur expenditure of more than Rupees 6,000/- for the pay of 10 drivers and for the meals, tea and refreshments for the workers at Panchsheel Lodge, Bhandara, Baba Rup Lodge, Bada Bazar, Bhandara and Kirti Hotel, Bhandara

(b) - Was this expenditure incurred by the respondent no.1 personally as well as by his election agent and other workers with the consent of the respondent no.1 or his election agent at various places throughout the constituency including Mohadi, Warthi, Bhandara Shahpur and Kardi

20. The finding on issue 11 (a) is that it is not proved except to the extent of Rs.230-60 and on (b) that it does not arise except for Rs.230-60.

14 (d) - Did the respondent no.1 get prepared printed posters in various sizes and get printed badges in 3 varieties of about 10,000 in number

(e) - Did the respondent no.1 incur an expenditure of Rs.800/- for preparing stencils for wall paintings and for painting the walls through paid workers at different places like Bhandra, Mohadi, Eklari, Warthi, Shahpur, Dhargaon, Dardha, Karadhi, Mundri, etc.

21. The finding of the High Court on issue 14 (d) is that respondent no.1 got printed from Laxmi Litho Works 5500 posters in two sizes and 2500 badges but the expenses have been accounted for on issue 14 (e) the finding is that respondent no.1 incurred expenditure of Rs.765/- on printing of posters and badges which are accounted for; and on issue 14 (f) the finding is that besides what has been stated in the return, respondent no.1 did not incur any more expenditure.

15 (a) - Did the respondent no. 1 get more than two lakhs of copies of pamphlets and incur thereon an amount of Rs.1,000/-

(b) - Did the respondent no.1 get printed and published the pamphlets such as (1) Lok Shikshan Karita Mat Patrika, (2) Naya Yuvkanche Awahan, (3) Namra Nivedan, (4) Chhatra Chhatraya, Nava Yuvak Bhaiyo Aur Bahno Jahir Pauigam, (5) Chala, Cyclela vote apan Devoo (6) Namra Nivedan, (7) Jambuwantrao Dhote Yanche Jhir Bhashan, (8) Jan Jagriti Parcha, (9) N. K. Tirpude Khalil Prashna Che Uttar dya, (10) Teli Matdar Bandhu Bhagini Na Awahan (11) Kunbi Matdar Bandhu Bhagini Na Awahan, (12) Khote Kadhi Bolnar Nahi

22. The finding of the High Court on 15(a) is that respondent no.1 got printed only the pamphlets at serial Nos. 1, 3, 6 and 7 and incurred expenditure thereon as shown in the return, and on (b) is that respondent no.1 got printed and published only the pamphlets at S.Nos. 1, 3, 6 and 7.

16 (b) - Did the respondent no. 1 not show in his return all expenses aforesaid or any part of it and thereby contravened the provisions of Section 77 of the Representation of the People Act and committed a corrupt practice within the meaning of S.123 (6) of the Act

23. The finding is that respondent no.1 did not show the amount of Rs.2,992-95 but that does not amount to a corrupt practice within the meaning of S.123 (6) of the Act.

24. The net result of these findings was that though the first respondent has shown in his election return a sum of Rs.7,749-11 as election expenses a further sum of Rs.9,992-85 was added by the High Court as amount spent on petrol but not included in the return. If this sum was added to the amount of expenses as has been found by the High Court to have been incurred by the first respondent came to Rs.10,741-96 which was still within Rs.12,000/- permissible under the law to be incurred.

25. The issues under the third head are as follows:

19(a) - Did the respondent no.1 issue a pamphlet which was printed at Bharat Seva Chhapkhana at Bhandara and published by S.G. Balpande, Eklari, which is signed by N. S. Motghare of Mohadi, Sakharam Narayansingh Dipte and S.G. Balpande, Aklari

(b) - Was this pamphlet published with the consent of the respondent no.1 or his election agent

(c) - Was it widely distributed throughout the constituency by the respondent no. 1 his election agent, or his workers and agents with the consent of the respondent no. 1 and his election agent

26. On these issues the finding of the High Court was in the negative.

21 (a) - Did the respondent No.1 get pamphlet printed and published from the Bharat Seva Chhapkhana, Bhandara published in the name of Tukaram Rakhlu, Shende and signed by Tukaram Rakhlu Shende, Mandvi, making an appeal to the voters of the Kunbi community

(b) - Was this pamphlet published by the respondent no.1 or his election agent or Tukaram Rakhlu Shende with the consent of the respondent no.1 or his election agent

(c) - Did this pamhlet amount to an appeal to the voters on the basis of cast and was it meant to create hatred between the cast the community or class and soliciting votes in the name of caste and community

(d) - Does this amount to corrupt practice within the meaning of Section 123 of the Act

27. The finding on issue 21 (c) was in the affirmative and that on (a), (b) and (d) was in the negative. In other words though the pamphlet specified in issue 21 (a) amounted to an appeal to the voters on the basis of caste and meant to create hatred between the cast and community or class and soliciting votes in the name of caste and community. It was not printed and published by the first respondent or his election agent or Tukaram Rakhlu Shende with the consent of the first respondent or his election agent.

28. We will take the last head under issues 19 and 21 first. These relate to two pamphlets Exts. 42 and 43, in which a communal appeal to the electors to vote for the first respondent was made. Exhibit 42 is a pamphlet which makes an appeal to the Kunbi voters while Ext. 43 makes an appeal to the Teli voters. The appeals in these exhibits are as follows : Exhibit 42 :

"TO KUNBI VOTER BROTHERS

SISTERS

APPEAL

Voter Brothers-Sisters, there are in all nine constituencies in Bhandara district; and out of them in Bhandara, Tumsar, Adyal and Pauni constituencies, these are only 70,000 Kunbi voters. While deciding the candidate in this area, the Congress has not taken notice of the strength of the Kunbi community and Congress leader Shri Tirpude of this district has purposely left aside the Kunbi community. This means there is no place of honour in this area to Kunbi community.

Therefore Kunbi voters

(1) Be united and defeat Congress candidate Shri Tirpude to achieve its place.

(2) Community leader Shri Govind (Dada) Shende be elected by overwhelming majority.

On Cycle symbol (Symbol of Cycle) after affixing stamp, elect Dada Shende

Yours humbly

(Vinit)

Tukaram Rakhalu Shende, Mandvi,Taluq, District Bhandara.

Publisher. Tukaram Rakhalu Shande,

Printer: Bharat Seva Chhapakhana,Bhandara"

Exhibit 43 :

"TO TELI VOTER BROTHERS

SISTERS

APPEAL

There are nine constituencies in this Bhandara district. Out of them, in Bhandara, Adyal, Tumsar constituencies, there are about 60,000 Teli voters. In this election, Congress has not taken any notice of the active workers of the Teli community in this constituency, and in the name of Teli community, an outsider rich lady is set up from Pauni constituency. likewise by denying a ticket granted to Shri Karemore, the feelings of the Teli community are hurt.

Behind this misdeed of them, it is obvious that there is a hand of Shri N. K. Tirpude, a Congress candidate from Bhandara constituency.

For this misdeed of theirs, Teli community should teach him a lesson in this election.

It is requested that the voter brothers, sisters from Teli community should put mark on the Cycle symbol of Govind (Dada) Shende and elect him by overhwhelming majority.

Yours humbly,

(Vinit)

M. S. Motghare, Mohadi, Sakharam Narayanji Dipate, Mohadi, S. G. Balpande, Ekalari

Publisher S. G. Balpande, Ekalari

Printer : Bharat Seva Chhapkhana,Bhandara

If these pamphlets are proved to have been issued by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote on the ground of his religion, caste, race, community or language or they are used as an appeal to religious symbols for furtherance of the prospects of the election of that candidate which prejudicially affects the election of any candidate, then he will be guilty of a corrupt practice within the meaning of subsection (3) of Section 123 of the Act. There is no doubt that Exts. 42 and 43 make a communal appeal to Kunbi and Teli voters to vote for respondent No.1. Not only do they have that effect, but they also impute to the rival candidate Tirpude respondent No.2 a bias against those voters. The only question, therefore, is whether it is proved that these pamphlets have been printed, published and distributed by the first respondent or his election agent or by any other person with the consent of the first respondent or his election agent. The High Court while holding that the pamphlets amounted to making a communal appeal, found that they were neither got printed, published or distributed by or on behalf of the first respondent nor by his election agent or by his workers with his consent or the consent of his election agent, and as such there was no corrupt practice committed within the meaning of sub-s (3) of S.123 of the Act.

29. This finding has been attacked by the learned Advocate for the appellants on the ground that the appreciation of evidence by the learned Judge of the High Court is not warranted. It is needless for us to reiterate what has over a long course been observed in numerous decisions that a finding arrived at on an appreciation of conflicting testimony by a Trial Judge who had the opportunity of observing the demeanour of witnesses while giving evidence should not be lightly interfered with merely because an appellate court which had not the advantage of seeing and hearing the witnesses can take a different view. Before a finding of fact by a Trial Court can be set aside it must be established that the Trial Judges findings were clearly unsound perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. This is not to say that a Trial Judge can be treated as infalliable in determining which side is indulging the falsehoods or exaggerations and consequently it does not preclude an appellate court from examining and appreciating the evidence in order to ascertain whether the finding arrived at by the Trial Judge is warranted. If that is not warranted, it can, on its view of the evidence, arrive at a conclusion which is different from that arrived at by the Trial Court. This aspect was discussed in detail in Laxminarayan v. Returning Officer, C.A. No.1014 of 1972, D/- 28-9-1973 - (reported in AIR 1974 SC 66 [LQ/SC/1973/294] ) to which we were parties.

30. We have already set out in brief what the appellants allegations and the respondents answer to those allegations were. What has now to be ascertained is, firstly, whether the pamphlets Exts. 42 and 43 have been proved to have been printed by Bharat Seva Chhapkhana, Bhandara and in respect Ext. 42 published by Tukaram Rakhalu Shende and in respect of Ext. 43 by S.G. Balpande, Ekalari; Secondly if they are proved to have been so printed and published whether the first respondent or his election agent or Balpande or Tukaram Rakhalu Shende got them printed and published with the consent of the first respondent or his election agent and thirdly that these pamphlets were printed, published and distributed during the election before the date of polling. In proof of these allegations the appellants sought to establish (1) by direct evidence of witnesses who were pesent at a meeting in Saxenas house in which respondent No.1, Bhole P. W. 40 and others were present, where it was decided to appeal to the Teli and Kunbi voters; (2) by evidence of the printer who printed them; (3) by the pamphlets being taken delivery of on behalf of the first respondent; and (4) after taking delivery from the printer of copies of pamphlets, giving them in the election office of the first respondent.

(After discussion of evidence of witnesses on the first item, His Lordship proceeded.)

In our view, the evidence of this witness was rightly disbelieved by the High Court Nor is it established from a reading of that evidence that a meeting as spoken to by P. W. 40 took place on February 12, 1972, or that the manuscripts of the impugned pamphlets, Exts. 42 and 43, were either discussed or it was decided to have them printed.

38. The next question is whether Exts. 42 and 43 were printed in the Bharat Seva Chhapakhana and if so, when were they printed. Jagdish Kumar Gupta, P. W. 35, asserts that Exts. 42 and 43 were printed at his Press, but the case of the first respondent is that they were not printed at his Press, and in any case they were printed subsequently after the election results were declared and for supporting the election petition. The learned Judge disbelieved the evidence of P. W. 35 on various grounds namely, house of Rambhat, Secretary of the Congress, it was unlikely that this Press would have been chosen; that the order book Ext. 125 is only, a bill book; that Shende and Ninawe were not asked to produce original bills; that there is no signature of the person placing the order, and therefore, an adverse inference can be drawn to hold that there was a separate order book and it was suppressed. The leanred Judge also commented on the fact that the order was not taken in the name of the first respondent Shende that there were no account books produced or maintained; that no acknowledgement of the delivery of the printed material was taken or produced nor do the manuscripts Exts. 42A and 43A bear the signature of the publishers. There was also no declaration filed by P. W. 35, the printer, as required by sub-s. (2) of Section 127-A of the Act and that the conduct of the witness while giving copies of Exts. 42 and 43 in the election office was unnatural, and it was also noticed that P. W. 35 was a polling agent of Tirpude respondent No.2, who was a Congress candidate.

39. The several reasons given by the learned Judge were assailed by the appellants Advocate and it was pointed out that Bhau Dalal knew the printer well; that his house was across the road; that Bharat Seva Chhapakhana was an obscure Press and that the owner Gupta P.W.35 could be persuaded to print them without much ado; that P. W. 35 does not have a separate order book at least for the last 2 or 3 years but only a bill book; that the comment that he has not produced his account books, but which fact has not been suggested to him. It is also contended that the reason why the order was not taken in Shendes name was because the witness was asked to take the order in a different name. In support of other matters upon which reliance was placed, namely, that he did not maintain accounts; that no accounts were produced; that acknoweldgement of delivery of printed material was taken; that Exts. 42 and 43 did not bear the signature of the publisher, it is submitted that no questions were asked. So far as non-filing of the declaration is concerned, the learned Advocated says that other printing presses like Bhandara and Sharda Printing Presses did not file declarations for all the pamphlets printed, as it clear from the evidence of P. W. 28 Sharda Hardikar and P. W. 16 Jagdish Kumar. While it is not denied that P. W. 35 was a polling agent of respondent No.2 it is submitted that he became the polling agent at a very late stage which fact at the most will necessitate close scrutiny of the evidence, but his by itself does not warrant his evidence being rejected.

40. It appears to us that when an election of a successful candidate is challenged, particularly on ground of corrupt practice, it is not unknown that attempts are made to manufacture or bring into being subsequent to the declaration of the result, documents or other material, which could be used for unseating a successful candidate. At any rate, when any impugned document is hotly contested on that ground and it is the case of the respondent that it was brought into existence subsequently, the onus on the petitioner who challenges the election on that ground is all the more heavy. It can be safely assumed that candidates who take part in election are expected to know that any communal appeal to the voters will affect the result of his election, or expose him or any election agent, or any other person on his behalf who indulges in such communal appeals so a charge of a corrupt practice. The fact that P.W. 35 was the election agent of the second respondent would have deterred either the first respondent or any one acting on his behalf from entrusting such an agent with the work of printing pamphlets which ex facie make communal appeal to the voters to vote for him, unless it is assumed that they were reckless and oblivious to the consequences. In any case, what must be ascertained is whether in fact they were entrusted with the work at the time when it is alleged that they were so entrusted.

41. In order to substantiate the averment that the evidence of P.W. 35 is trustworthy, it is contended that he had filed Exts. 42 and 43 with the election office even before the date of polling and that the Collector and District Magistrate as also his Deputy Ramteke P. W. 18 had seen these pamphlets two or three days before the date of the polling. The evidence of these witnesses, it is contended, corroborates the evidence of P.W. 35 that he printed those pamphlets before the date of the polling and had filed copies thereof at the election office. Apart from the fact that these pamphlets were printed by P. W. 35, it has also to be established that they were printed at the instance of the first respondent or his agent or some other person with his consent, and were published and distributed before March 5, 1972 the date of poll.

42. It may be noticed that under sub-s. (2) of S.127 a person is prohibited from printing or causing to print any election pamphlet or poster, (a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and (b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document where it is printed in the capital of the State to the Chief Electoral Officer, or to the District Magistrate of the District in which it is printed. Under sub-s. (4) any person who contravenes any of the provisions of sub-s. (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. Even resuming that a candidate who gets the pamphlets printed contrary to the above provision, the printer at any rate being unconcerned with the result of the election, will not expose himself to criminal prosecution or punishment of imprisonment by contravening the provisions. It is not denied that any such declaration as required under sub-s. (2) of S.127 was obtained or filed by P.W. 35 in the election office.

43-48. (After discussion of evidence on this aspect, His Lordship proceeded.)

49. It is for the appellants to prove that these documents were in fact filed in the election office before the date of polling and the surest way they could have done so is to have called for the Inward Register, which is admitted to have been maintained, in which according to all the witnesses P. W. 38, P.W. 18 and 1 R.W. 13 every document received in the office is entered and numbered. The onus is certainly not on the first respondent when he had denied that these documents were ever in existence before the date of election or were filed in the election, office. Even the publisher Balpande, signatories M. S. Motghare and Sakharam Narayanji Dipate in respect of Ext. 43, and Tukaram Rakhalu Shende in respect of Ext. 42, were summoned by the petitioners but were not examined. Balpande is said to be a witness in the complaint (Ext. 93) filed by the first petitioner Karemore against the printer and editor of Bhandara Times in respect of the publication of Dhotes speech. All the above persons who were not examined are Congressmen or Congress workers (See the evidence of Karemore P. W. 39, Dayaram Banthe 1 R. W. 2 and Gaidhane 1 R.W. 14). The alleged signatory of Ext. 43 was also a signatory of Ext. 119 supporting a Congress candidate Vithal Prasad Dube in 1972 election (See Dayaram Banthe 1 R.W.2). The omission to produce any of the above witnesses to prove Exts. 42 and 43 is significant particularly when they belong to the party of respondent No.2 who benefits from the election being set aside.

50. Evidence has also been adduced to show that the offending pamphlets were distributed at Warthi on February 17, 1972 (see Narayan Fuley P.W.14, Prandas Wasnik P.W.19 and Lambe P.W.23) at Mundri on February 22, 1972 (see Narayan Yelne P.W.29 and Tuzre P.W. 30) at Bhandara on February 23, 1972 (see Ramteke P.W. 34 and Kesho Hedau P.W.37) and at Mohadi on February 18, 1972 (see Patre P.W.13 and Lalit Mishra P.W.25). The learned Trial Judge has disbelieved these witnesses and has given reasons therefor. But the learned Advocate for the appellants has assailed those reasons and has submitted his detailed comments. In considering the evidence of these witnesses, particularly in an election matter, the interest which these witnesses have in and the support they give to any particular political party are relevant factors to be taken into consideration for determining their bias for speaking in favour of one party or against the other. Apart from this there are other factors such as their knowledge of the contents of the pamphlets, whether they preserved those pamphlets, what action they took whom they had informed if they had considered such pamphlets to be offensive, and whether they are chance witnesses or had an opportunity of knowing about the incident about which they are deposing. There may also be some witnesses who may claim to have supported the successful candidate, but after the election have changed their loyalty and have appeared as witnesses for the petitioners. This is also a circumstance to be taken into consideration. We have gone through each of the reasons given by the learned Judge and the comments submitted by the learned Advocate for the appellants for not accepting those reasons, but we find ourselves unable to reject the appreciation of the learned Judge for not accepting of the learned Judge for not accepting the evidence of these witness. We would have examined the reasons in the light of the comments submitted by the learned Advocate in detail, but we have not done so because of our anxiety to keep the length of this judgment within appreciable limits. If we may take one ground which uniformly has been admitted by most of these witnesses, it is that they have neither preserved the pamphlets nor do they even remember the contents of those pamphlets (see Fuley P.W. 14, Yelne P.W.29, Tizare P.W. 30 to name a few). Even Ramteke P.W. 34 District Deputy Election Officer is not able to remember the caption of any of the pamphlets though as we have seen earlier he claimed to remember that those pamphlets were seen by him before the date of the polling. Keshao Hedau P.W. 37 is a member of the Congress Party who worked for respondent No.2 P.W. 13 likewise is a staunch Congress worker P.W. 25 does not say that he himself received or had occasion to see the pamphlets which are said to have been distributed. Though each of these circumstances may be insufficient to throw doubt on their veracity, but juncts juvant.

51. On a perusal of the evidence as a whole and having considered the meticulous contentions advanced by both the parties, we cannot say that the finding of the learned Trial Judge that Exts. 42 and 43 were not printed, or published or distributed before the date of polling, is not warranted. We think, on the evidence, this finding is clearly sustainable.

52. The second head relates to corrupt practice under sub-s. (6) of S.123 of the Act for incurring or authorizing expenditure in contravention of S.77. This section forbids a candidate at an election to expend more than the amount prescribed which under R.90 of the Rules relating to Assembly Constituencies in the State of Maharashtra is Rs.12,000/-.The first respondent has returned as expenditure of Rs.7,749-11 out of which Rs.6,371-61 have been paid and Rs.1,377-50 are shown as outstanding. It is also alleged that the first respondent has committed a breach of S.77 read with Rule 86 of the Rules framed under the Act for not showing certain items of expenditure in the return filed with the District Election Officer as required by Section 78 of the Act. The learned Trial Judge was of the view that it has not been shown how there was non-compliance with S.77 read with Rule 86 and also that no arguments were advanced on that point. Section 77 of the Act requires 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 authorized 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. It also provides under sub-ss. (2) and (3) 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. Rule 86 of the Rules prescribes that the account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the particulars specified therein and that vouchers shall be obtained for every item of expenditure are lodged along with the account of election expenses.

53. The contention of the appellants is that the first respondent though he has admitted that he had kept an account in the Note-Book from which he prepared the return of election expenses did not file that Note-Book, nor has he shown that he had maintained the accounts in accordance with the law. It is submitted that under Section 78 of the Act, the first respondent should have lodged with the District Election Officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under Section 77, and since the first respondent has not shown that the account filed by him was a true copy of the account kept by him he has committed default of the provisions of Section 77 and 78 of the Act. Even assuming that this point had been argued, we do not think that there is any substance in the contention urged by the learned Advocate for the appellants that the return filed by the first respondent was not a true copy of the account kept by him.The obligation is to keep separate accounts and to file a true copy of that account along with the vouchers, but there is no requirement for him to file the account book, unless the authenticity of the true copy of that account is challenged.

54. There is validity in the submission of the learned Advocate for the first respondent that no notice was given by the appellants to produce the account book, nor has the authenticity or veracity of the true copy of the account filed by the first respondent been challenged in any way. Even item of expenditure that has been shown in the return has been supported by the original voucher which was not challenged. Nor has anything been brought to our notice to show that there is any averment in the pleadings that the accounts filed were not a true copy of the accounts maintained. In our view, the requirements of Ss. 77 and 78 have been complied with.

55. The next granted of challenge is that the amount shown in the return is not a correct amount and that there are amounts which had been incurred in respect of several items that have not been shown in the return. There is no dispute that the items of expenditure shown in the election return amounting to Rupees 7,749-11 are not correct. What is sought to be proved is that the expenditure in respect of several other items other than those shown in the return has to be added. It may be mentioned that a successful candidate at an election is entitled to deduct Rs.250/- deposited so that actually the amount returned has to be reduced by that amount, which will come to Rs.7,499-11.

56. The learned Trial Judge has added a sum of Rs.2,992-95 in respect of two items of expenditure incurred towards petrol as evidenced by Exts. 86 and 87. The amount of Rs.952-85 is in respect of chits issued by Saxena on behalf of Congress-O and the amount of Rs.1,984-30 is in respect of chits issued on behalf of Bharatiya Jana Sangh. These two amounts total upto Rs.2,947-15 and though the High Court has added Rs.2,992-95 the former figure seems to be the more accurate one. According to the petrol dealer Gurjar 1 P. W. 21 the accounts of Bharatiya Jana Sangh and the Congress-O were separate as is evidenced from Ext. 87-D - Cash and Khata entries pertaining to Bharatiya Jana Sangh and Congress-O. This witness categorically denies that there is any account with him in the name of Govindrao Shende, Sheoshankar Ninawe, Kharabe, Bhaskar Ninawe, Saxena or Bhaskar Hardikar. He also says that Bhau Dalal had come to him to open an account in his name telling him that for all the purchases made in his account, he or Govindrao Shende would be liable. He said Saxena had also come to him to open an account for Sanghathan Congress (Congress-O) and stated that he would be responsible for the purchases made in the account of the Sanghathan Congress and that Bhasker Ninawe had come to open an account for the Bharatiya Jana Sangh and stated that he would be liable for the purchases made in the account of the Bhartiya Jana Sangh, P. W. 21 also says that he submitted the bills to Saxena and Bhasker Ninawe separately and received the amounts from them. In any case the learned Judge was wrong in including the expenditure of Rs.145/- on petrol between March 11 to March 14, 1972, which is after the date of polling. Ninawe 1 R.W. 7 admits that he is the President of the Bharatiya District Jana Sangh Party and that 39 requisition slips which were collectively marked as Ext. 86 were admitted to have been signed by him. He says that these requisition slips were given to the Gurjar Petrol Pump at the time the petrol was put in the cars; that he paid Rs.1,000/- to Gurjar for the period supplied to him under these requisitions; that about Rs.800/- or Rs.900/- out of the total bill had remained unpaid; that the amount of Rs.1,000/- had been paid by the Jana Sangh Party; and that the liability for the amount remaining due was also of the Jana Sangh Party.

57. We have ourselves seen the chits in Exts. 86 and 87 and have no manner of doubt that those chits were given on behalf of the Bharatiya Jana Sangh and Congress-O Parties, whose names also have been written on those chits by the persons signing them at the Petrol Pump. In these circumstances, there is no justification for adding Rs.2,922-95 to the amount of Rs.7,499-11 as found by the High Court. In view of this evidence, the learned Advocate for the first respondent challenges the finding of the High Court that the amount of Rs.2,992-95 was incurred on his behalf and should not have been added to his return of election expenses. In our view, the first respondent is entitled to challenge this finding of the High Court for supporting the conclusion that no corrupt practice has been committed in respect of this head.

58-66. (After dealing with other items not shown in the account, His Lordship concluded on this aspect of the case as follows.)

67. There are two other items - one of Rs.695/- in respect of Sakhare and the other of Rs.129/- said to have been incurred on account of Shende. Even if the contentions of the learned Advocate in respect of these amounts are accepted, namely, Rs.1,939/- incurred by Bhau Dalal for which no account was given, Rs.100/- paid towards the salary of Hari, Rs.695/- in respect of Sakhare, Rs.192-40 or say Rs.192/- in respect of petrol, Rs.600/- regarding hire charges of Taxi No. MHG-191 hired by the father-in-law of the first respondent, and Rs.129/- incurred for Shende, the several items will amount to Rs.3,655/-. If these amounts totalling Rs.3,655/- are added to the election expenses already shown, which after deducting Rs.250/- would come to Rs.7,498-89 or say Rs.7,499/-, the total amount of expenditure incurred would be Rs.11,154/-.Even on this reckoning, the election expenses are well within the limit of Rs.12,000/- and consequently the appelalnts charge against the first respondent for committing corrupt practice under sub-s. (6) of S.123 of the Act is not established.

68. Under the first head of corrupt practice as we have been earlier, the allegation is that at the public meeting held on February 18, 1972 at Shaheed Maidan, Bhandara, Jambuwantrao Dhote, a protagonist of Maha Vidarbha Sangharash Samiti which has as its object the formation of a separate State of Vidarbha made a false statement that the second respondent Tirpude paid a bribe of Rs.60,000/- to the first appellant Karemore to withdraw from the context. This statement, it was further alleged, was made in the presence of the first respondent Shende who, it is said, also spoke in the same meeting from which his consent to the false statement made by Dhote is sought to be inferred. The second allegation in this regard is that the report of Dhotes speech was published in the Bhandara Times of February 22, 1972, which publication, it was averred was with the consent of Shende inasmuch as the Bhandara Times was acting as his agent.

69. The case of the appellants is that the meeting at Shaheed Maidan was arranged by the first respondent who had approached Dhote to visit his constituency for supporting his candidature and had got printed a notice of the aforesaid meeting to be addressed by Dhote. In paragraph 41 of the petition the appellants stated that the above statement was "believed to be false" by the maker as well as Shende and nobody could have believed it to be true. The first respondent of course denied that the above statement was ever made or that it was made in his presence or with his consent. Nor did he have any knowledge that any statement was published on February 23, 1972 in the Bhandara Times with his consent or with the consent of his election agent, or that the Bhandara Times was making propaganda on his behalf or that it was acting as his agent. In support of the allegations the appellants examined Haridas Khobragade P.W.22, Sharadchandra Lambe P.W.23, Viswanath Shangarpawar P.W.24, Saxena P.W. 27, Lalit Kumar Mishra P.W. 25, Balwant Bhole P.W.40, Sharad Hardikar P.W.28 and Baburao Karemore P.W. 39. Of these P.Ws. 29, 24, 27 and 40 are Advocates, while P.W.23 is the Headmaster, P.W.25 is a Journalist, P.W.28, the Printer, Publisher and owner of the Bhandara Times and P.W. 39 the first appellant. The documentary evidence in support of these issues are Ext. 69 dated February 16, 1972 which is the notice dated February 16, 1972 announcing that Dhote will address a meeting on February 18, 1972, at Bhandara in support of the first respondent; Ext. 108 of the same date which is a declaration of Ext. 69 made under S.127A; Ext. 157 dated February 14, 1972 is the application for permission to hold the aforesaid meeting addressed to the President, Municipal Council Bhandara; Ext. 101 dated February 23, 1972 issue of the Bhandara Times; Ext. 18 dated February 26, 1972 which is a part of the notice given to Dhote by the first appellant Karemore regarding the alleged statmeent said to have been made in the public meeting and published in the Bhandara Times; Ext. 100 dated February 26, 1972 the notice issued to Sharad Hardikar P.W. 28 the owner, printer, publisher of the Bhandara Times; Ext. 103 dated March 2, 1972 the reply of Sharad Hardikar P.W. 28 to the notice Ext. 100 admitting that what was reported as spoken by Dhote was part of the speech of Dhote; and Ext. 143 dated February 21, 1972 is the issue of Lok Wani reporting the speech of Dhote.

70. The learned Trial Judge after noticing that the affidavit filed by the appellants in support of the various allegations did not disclose the sources of information expressed the view that in the absence of such a disclosure which would take the opposite party by surprise those allegations and the affidavit in support thereof would be viewed with some suspicion. It was also pointed out that even after an objection was raised by the first respondent that the petitioners should supply further and better particulars, they remained silent with respect to this matter which would raise an inference amongst others that at the time of drafting the petition, the petitioners were not informed by any one who was present at the meeting of February 18, 1972 about the statement alleged to have been made by Jambuwantrao Dhote in the said meeting. While there is no dispute that Jambuwantrao Dhote addressed a meeting at Bhandara on February 18, 1972, the only question is whether he made the objectionable statement in that meeting that Tirpude paid Rs.60,000/- to Karemore for inducing the latter to withdraw his candidature from the election. The learned Trial Judge, after a review of the evidence and after considering the various contradictions, improbabilities and the interestedness of the witnesses held that they were not present at the meeting and, therefore, they could have no knowledge of what was spoken by Dhote or by Shende at the meeting, because if they had been present at that meeting they would have certainly informed the petitioners and the second respondent Tirpude of what happened at the meeting; if they had informed them then the petitioners would have mentioned their names in the affidavit or in the subsequent further and better particulars. It was further held that even if the first respondent was present at the meeting held at Bhandara on February 18, 1972 and spoke at the meeting as alleged, there is nothing to show what part of the speech was consented to by the first respondent. There is also no evidence that the statement in the Bhandara Times was published with the consent of the first respondent or that the Bhandara Times was the agent of the first respondent. The Trial Court, therefore, held that the allegations under this head were not established.

71. Lengthy arguments were addressed before us to show that the appreciation of the evidence as well as the conclusions arrived at by the learned Trial Judge were unwarranted. There is, according to the learned Advocate for the appellants, sufficient evidence to hold that these allegations were proved.

72. Before we refer to the comments and criticism challenging the findings of the High Court,it is necessary to set out the approach which this Court will have to adopt in examining the evidence in the case. While, as we have said earlier, it is open to this Court to reappraise the evidence and consider the propriety, correctness or legality of the findings recorded by the Trial Court, ordinarily it will be slow to disturb the findings of fact recorded by the High Court, unless there are cogent reasons to do so. In examining the question whether the allegations about the commission of corrupt practices by a returned candidate, the Court has to keep in view that the allegations of corrupt practices are of a quasi-criminal nature, the proof whereof has a double consequence of not only setting aside the election of the returned candidate, but also imposing subsequent disqualification debarring him from becoming a candidate at any election for a period of six years. Inasmuch as the charge is a service one and is of a quasi-criminal nature, the onus of proving the essential ingredients prescribed by sub-s. (4) of Section 123 is on the person who alleges them. He has to show that the impugned statement has been published by the candidate or his election agent or by any person with the consent of the candidate or his election agent. He has further to show that the impugned statement is a statement of fact which is false; that the maker of the statement whether he is the candidate or his election agent or any other person either believed that the said statement was false or did not believe it to be true, and that the statement is in relation to the personal character and conduct of the complainant candidate or his candidature which statement was reasonably calculated to prejudice the prospects of the candidates election.

73. There is no doubt that the alleged statement, if proved to have been made, is an imputation against the character or conduct of the petitioner Karemore and Tirpude. What has, therefore, to be established by the appellants is (i) that the statement was made at the meeting held at Bhandara on February 18, 1972 by Jambuwantrao Dhote; (ii) that the statement was false; and (iii) that Shende consented to the making of that false statement. If all these ingredients are established, it has further to be proved that Dhote and Shende while consenting to it, believed the statement to be false or did not believe it to be true. We will now examine the evidence keeping in view the approach which this Court adopts in such matters, particularly having regard to the fact that where the electorate has chosen their andidate at an election, their choice ought not to be lightly upset, unless there are very cogent and compelling reasons.

74-83. (After discussion of oral evidence on this point His Lordship proceeded.)

84. Reading the evidence of the above mentioned witnesses as a whole and considering the circumstances which weighed with the learned Trial Judge for disbelieving them, we cannot say the conclusion arrived at by him is not warranted.

85. There is, however, the circumstances of the publication of the report of the speech of Jambuwantrao Dhote in the Bhandara Times in which the offending statement appears to have been printed on February 23, 1972. From this fact, it is sought to be contended on behalf of the appellants, that the statements of the witnesses are corroborated. We do not think that the mere publication of a report in the Bhandara Times is by itself sufficient to corroborate the testimony of these witnesses.It is quite possible, as was the case of the first respondent, that the Bhandara Times being inimical to Tirpude may have published the impugned statement of Dhote without its being uttered by Dhote to affect the chances of Tirpude at the election. The fact that the Lok Vani which was supporting Tirpude did not mention it, nor has the reporter who was present at the meeting reported it, nor was action taken earlier to the publication of the report in the Bhandara Times to challenge that statement, nor was any notice given to Jambuwantrao Dhote in respect of that statement, nor did any of these witnesses, having heard the said objectionable statement at the meeting on February 18, 1972 mention it to Tirpude or to the petitioners, create considerable doubt in ones mind as to whether such a statement was made. No doubt neither the Lok Vani nor the Bhandara Times referred to Shende having spoken at that meeting. The excuse which P. W. 24 who was actively canvassing for Tirpude gave for not mentioning it either to Panditrao of Lok Vani or Hedau who was in charge of the election campaign on behalf of the second respondent Tirpude that Dhote had made the objectionable statement would also indicate that none of these witnesses was present at the meeting or if present did not hear any such offending statement being made by Dhote. In fact P. W. 24 has not specifically averred that Dhote made any such statement at the meeting when he drafted the notice on behalf of Karemore against the printer, publisher and the owner of the Bhandara Times in respect of the report published therein. We have already referred in that connection what the complaint alleged, from which it cannot be said that the learned Trial Judge drew an unwarranted inference that what was complained of was not that Dhote had made the speech, but that the Bhandara Times published a statement which was not made by Dhote. We are inclined to agree with the learned Trial Judge that it is not proved that Dhote made the offending statement on February 18, 1972, at Bhandara.

86. Even assuming that such an offending statement was made and that Shende, as spoken to by the witnesses on behalf of the appellants, said at the end that they had heard from Dhote what he had to say and that they should vote for him, that statement does not establish that Shende had consented to what Dhote said about Karemore and Tirpude nor is there anything to prove that Shende believed the statement to be false or did not believe it to be true. It is not disputed that the first appellant Karemore was given the ticket by the Congress-R, that he had actually filed his nomination paper but suddenly withdrew from the contest before the date fixed for withdrawal of nomination papers and Tirpude second respondent was nominated on behalf of the Congress-R who filed his nomination papers for the election. In these circumstances there must have been a considerable agitation in the public mind and the story may have been current which was expressed by Dhote or Shende. This assumption finds support from the evidence of the first appellant, Baburao Karemore P. W. 39, who admittedly did propaganda work for Tirpude. He says that though he did not apply for a ticket and though the Maharashtra Provincial Congress Committee recommended Tirpude he read in the newspapers on February 2, 1972 that he was given the ticket. A meeting was then held at Tumsar and it was decided that Tirpude should be given the ticket. He and Ramnarayan Mor then went to Bombay while some others went to Delhi. At Bombay they saw the Chief Minister and Patil the P.C.C. President but they total them to go to Delhi. At Delhi they met Sarva Shri Uma Shankar Dixit, Chavan and Fakhruddin Ali Ahmed and every one told them that they could do nothing because Tirpude did not apply for a ticket. The witness says that he returned on the night of February 4, 1972 after he gave a letter to Mor addressed to the Congress President and the Prime Minister requesting them to give the ticket to tirpude. On February 7, 1972, he filed the nomination papers. That very evening he heard on the radio that Tirpude was given the ticket and Tirpude filed his nomination papers on February 8, 1972. Then the witness withdrew his nomination on February 11, 1972. He denied that Tirpude paid Rs.60,000/- to him for withdrawing his candidature, but nonetheless admitted that the persons in the constituency were making allegations against him to this effect. He says "When I used to go canvassing in the constituency, people used to say in my face that I had taken Rs.60,000/- and that I had become a Mahar or that I must have been very happy in getting the amount of Rupees 60,000/- or that I sold myself to a Mahar. I belong to Teli community. Such kind of propaganda had started from 19th to 20th." The witness then says that he came across the report in the Bhandara Times on February 23, 1972. After that he gave notice to Dhote, Sharad Hardikar and Balwant Khisti, Editor through Zinjarde. From this statement in examination-in-chief it is obvious that though the members of the Congress Election Committee said that Tirpude was not given the ticket because he had not applied for it, nonetheless he wishes us to believe that he got the ticket without making an application for it. Secondly, he confines the charges made against him by persons in the constituency between February 19 and 20, 1972 to give credibility to the allegation that this was after the speech was made by Dhote on February 18, 1972. In cross examination, however, he made certain admissions which are significant. He said that the expenses for the election petition were being met by others and that he had paid only Rs.500/- towards the expenses. He says he does not know whether petitioners 2 to 4 had made any contribution, that he named certain persons whom he had consulted, but he denies that he had consulted Tirpude before filing the election petition. He says that he had filed his nomination as an independent candidate in 1967 election and admits that there might have been rumours, which according to him were false rumours, that he had withdrawn his candidature at that time by accepting money from Manohar Bhai Patel. He also says that it is always difficult to get a Congress ticket for the Assembly elections, but it was true that he was given the ticket without asking for it. He says that getting the Congress ticket is a coveted thing. Then he admits that Tirpude was a better and competent candidate, but he was confident that if he had contested the Assembly election he would have got elected. But in spite of his prospects he surrendered the ticket in favour of Tirpude. Then he makes a further admission that after he surrendered the ticket in favour of Tirpude his supporters did say to him that he had foolishly surrendered the ticket which he had got and had given it to a Mahar and thereby he had spited the Teli community (Telyanche Nak Kaple). These persons started saying this to him after it was known in the town that in his place the ticket was given to Tirpude i.e. from February 8, 1972. This gives the lie direct to his assertion that the allegations against him for surrendering the ticket were being made between February 19 and 20, 1972, when in fact they were made even from February 8, 1972 i.e. from the date Tirpude filed his nomination. the fact that he admits that he surrendered the ticket in favour of Tirpude, gives the impression that it must have gained currency in the constituency that it was done on receiving some consideration. If such was the case, then Dhote and Shende, if he can be said to have consented, may have believed the statement to be true or at any rate may not have believed it to be false, particularly having regard to his past reputation. The extraordinary circumstances in which this was done at the nick of time might have inclined them to that behalf. As Dhote was not examined, we do not have his version in that regard. In any view of the matter, we hold that the appellants have not established the corrupt practice under this head by any credible evidence.

87. Lastly, the quantum of costs awarded by the High Court has been challenged on the ground that the costs were not the costs incurred by the first respondent.We have dealt with this aspect in Laxminarayans case, to which we have referred earlier, where we have held that the word "incurred" occurs both in Ss. 96 and 119 of the Act and means what is "actually spent".In that case, as in this case, the petition was, dismissed by the High Court under clause (a) of Section 98.Accordingly, it was incumbent on the High Court to award costs to the first respondent which costs he is entitled to if he could show that he has incurred them. Admittedly, there is no proof of payment of any fee to counsel by the first respondent. As such he will not be entitled to the amount of Rs.400/- per diem awarded by the High Court. He will, however, be entitled to any other costs which are shown to have been incurred by him. The learned Advocate for the first respondent submits that his client should be given an opportunity to produce receipts of payment of fees because at the time when the case was decided the costs were being awarded according to the Rules of the High Court. In our view, these Rules did not preclude his client from filing any fee certificate, if he had paid the amount and obtained it. We cannot, therefore, allow him to do so now.

88. In the result, the appeal is dismissed, except with respect to counsels fee awarded to the first respondent in which respect the appeal is partly allowed. The first respondent will be entitled to such costs as have been incurred by him in this Court as well as in the High Court.

89. Appeal dismissed.