DR. A. S. ANAND, J.

1. This appeal under Section 116-A of the Representation of the People Act, 195 1 (hereinafter referred to as the), by two electors is directed against the judgment and order of a learned Single Judge of the Nagpur Bench of the High Court of Judicature at Bombay dismissing the election petition. The returned candidate has also filed cross-objections challenging those findings which have gone against him. Both shall be disposed of by this common judgment

2. The appellants filed an election petition under Section 80 of thechallenging the election of Respondent 1, Dattaji Raghobaji Meghe, the returned candidate from 23 Nagpur Parliamentary Constituency in the elections held for the Xth Lok Sabha and also sought a declaration to the effect that Respondent 2 Shri Banwarilal Bhagwandas Purohit be declared as the duly-elected candidate from the said Constituency after setting aside the election of the returned candidate. The challenge to the election of Respondent 1 was mainly based on the allegations of commission of various corrupt practices by him and/or his election agent detailed in the petition

3. Appellant 1 was at the relevant time the Vice-President of Bharatiya Janata Party (Nagpur City), Nagpur while Appellant 2 was a worker of the Bharatiya Janata Party. Respondent 2, Shri Banwarilal Bhagwandas Purohit, the defeated candidate had been sponsored as a candidate by the Bharatiya Janata Party while Respondent 1 Datta Raghobaji Meghe, the returned candidate, had been sponsored by Congress (I). Besides Respondents 1 and 2, the other candidates, who had contested the election and had not withdrawn their candidature from the contest, numbering more than forty-two were also joined as respondents to the election petition

4. The main case of the appellants projected before the High Court and canvassed before us against the returned candidate was that the expenditure incurred or authorised by Respondent 1 or his election agent was much more than what had been disclosed by him in the return of expenditure lodged under Section 78 of thewith the District Election Officer and that huge expenditure incurred by him in connection with his election had been supressed. It was further alleged that though the expenditure incurred in connection with the election of Respondent 1 was shown to have been incurred by the political party, some other sympathetic associations, organisations, individuals, friends and well-wishers, the said expenditure in fact had been incurred and/or authorised by Respondent 1 and/or his election agent and the amount spent by those organisations had been provided out of the funds made available by Respondent 1 to those parties for making the payment and their names were given only to conceal the truth of the transactions so as to escape from the mischief of Section 123(6) of the. It was pleaded that some of the organisations under whose names the advertisements had appeared, were in fact non-existent and that the individuals who were shown ostensibly to have incurred some expenditure for furtherance of the prospects of the election of Respondent 1, had actually no funds of their own to spend and Respondent 1 had placed his own funds in their hands to meet the expenditure. According to the appellants, the expenditure incurred by Respondent 1 was far in excess of the limit prescribed by Section 77 of theread with Rule 90 of the Conduct of Election Rules, 1961 (hereinafter the Rules) and the return of election expenditure did not reflect the correct state of affairs. Since Respondent 1 had exceeded the prescribed limit of expenses, he was guilty of committing the corrupt practice under Section 123(6) of theand his election was, therefore, liable to be declared void and Respondent 1 also disqualified for committing the corrupt practice

5. Respondent 1 before filing his written statement raised a preliminary objection, through Ex. 16 and Ex. 17, to the effect that the allegations made in the petition were vague and that material facts and particulars had not been supplied and as such the vague pleadings were liable to be struck off and the election petition rejected under Section 81(3) read with Section 86 of the. On 29-10-1991, however, Ex. 16 was rejected while application Ex. 17 was allowed to the extent that the allegations made in the petition regarding the commission of corrupt practice under Section 123(2) and (3-A) were found to be vague and non-specific and the pleadings in that connection were directed to be struck off. Against the order of rejection of the preliminary objection raised in Ex. 16, Respondent 1 preferred a special leave petition being SLP (C) No. 19165-66 of 1991 in this Court which was dismissed on 20-12-1991 by the following order

"The special leave petition is dismissed. However, this order will not prevent him from raising objections, which are available to him according to law, when the evidence is made on the relevant allegations." *

6. Subsequently, an application, Ex. 27, filed by the appellants for leave to amend the election petition for correcting certain inadvertent "errors, omissions and slips" was allowed on 28-11-1991 and the necessary corrections were carried out in the election petition. Again an application Ex. 47/A filed by the appellants seeking further amendment of the verification clause of the petition was allowed by the Court on 18-1-1992, after an earlier application, Ex. 44, filed by the appellants seeking amendment of the election petition had been allowed on 18-12-1991

7. A detailed written statement was thereafter filed by Respondent 1 in which the charges levelled against him in the election petition were vehemently denied. Respondent 1, in respect of certain items of expenditure, took a specific stand that the expenditure on those items as detailed by the appellants in the election petition, were incurred by Nagpur City District Congress Committee and Nagpur Gramin Congress Committee and not by him. Similarly, in respect of some other items of expenditure, Respondent 1 took the plea that the expenditure in respect of those items was incurred by certain organisations, associations, individuals, friends and well-wishers, without any authority or consent of Respondent 1 or his election agent and completely on their own volitions. In the written statement, the names of some of the organisations and individuals as well as the associations of persons and the political party who had incurred the expenditure were furnished by Respondent 1. It was maintained by Respondent 1 that he had not incurred any expenditure besides the one reflected in the return of election expense and had not committed any corrupt practice. After the amendments were carried out by the appellants, the returned candidate, Respondent 1 filed yet another application Ex. 50 seeking striking out of some other "vague and non-specific" pleadings but the same was rejected, though the prayer of Respondent 1 to amend the written statement made through application Ex. 49 was allowed on 9-1-1992

8. From the pleadings of the parties, the following issues were framed on 21-1-199

(1) Do the petitioners prove that the were electors in the election held for the Tenth Lok Sabha from 23, Nagpur Parliamentary Constituency

(2) (a) Do the petitioners prove that a meeting was held in the office of the Maharashtra State Handloom Corporation on 17-5-1991 during the Tenth Lok Sabha Election from 23, Nagpur Parliamentary Constituency

(b) Do the petitioners further prove that the said meeting was addressed by Respondent 1

(c) Do the petitioners prove that in the said meeting, Respondent 1 had declared that labour charges for handloom weavers would be increased by 0.35 paise per sq. m. from June 1991

(d) Do the petitioners prove that the said declaration of increase in the labour charges was made by Respondent 1 to hold out promise of gratification for inducing the weavers numbering 1, 50, 000 to vote for Respondent 1

(e) Do the petitioners prove that the said declaration made by Respondent 1 amounts to commission of corrupt practice within the meaning of Section 123(1) (A) i.e. bribery

(f) Do the petitioners further prove that the said declaration made by Respondent 1 also amounts to undue influence constituting commission of corrupt practice under Section 123(2) and further amounts to direct or indirect interference or attempt to interfere with the free exercise of electoral rights of the handloom weavers who were electors in the said election

(3) Do the petitioners prove that Respondent 1 has not maintained correct and proper accounts as is required to be maintained under Section 77 and has incurred expenses in excess of the limit prescribed thereunder and thereby committed corrupt practice under Section 123(6) of the(4) Do the petitioners prove that Respondent 1 incurred more expenditure than what is disclosed by him in the return of expenditure annexed as Annexure 7 to the petition, on the following items as alleged in paras 2, 4 to 2.10 of the petition, on account of the -

(i) payments made to Shri Devi Sharda Mangal Karyalaya, Nagpur, by way of office rent

(ii) payments made to M/s Vishwa Bharti Typing Institute, Nagpur

(iii) payments made to M/s Prince Travels, Nagpur, for hiring autorickshaws and taxis

(iv) payments made to M/s Pramod Automobiles, Nagpur

(v) payments made to M/s Raj Automobiles, Nagpur

(5) (a) Do the petitioners prove that Respondent 1 has authorised and/or incurred expenditure on the undermentioned items which has not been disclosed in the return of expenditure annexed as Annexure 7 to the petition as alleged in paras mentioned in the petition described against each item hereunder

(b) (i) Do the petitioners prove that printing cards at Annexure 9 indicate that the came have been published by Nagpur City District Congress Committee, Nagpur, but the expenditure incurred on printing and distribution of about 15 lakh voter cards has been made by Respondent 1 to the extent of Rs. 2, 25, 000. Do the petitioners further prove that Respondent 1 has got printed those cards at Shakti Offset Works, Nagpur and the said firm received a total amount of Rs. 2, 25, 000 from Respondent 1

(ii) Do the petitioners prove that Respondent 1 got printed 3, 25, 000 posters of different sizes though those posters show that they were issued by President, Nagpur District Congress Committee and the entire expenditure of these posters to the tune of Rs 3, 40, 250 was made by Respondent 1

(iii) Do the petitioners prove that Respondent 1 published his candidature by large size cut-outs at places mentioned in Annexure 11 alleged to be prepared by persons whose names are given in Annexure 10 Do the petitioners further prove that cost of these cut-outs comes out to Rs 2, 83, 000 as given in Annexure 11 and was incurred by Respondent 1 by paying the same to persons mentioned in Annexure 10(iv) Do the petitioners prove that Respondent 1 advertised his candidature by wall paintings at different locations at Annexure 12 costing about Rs. 88, 500 Do the petitioners further prove that these wall paintings work was got executed by Respondent 1 through painters and incurred expenditure of it by payment of charges of painters

(v) Do the petitioners prove that about 12, 40, 830 letters such as those at Annexures 13 and 14 were got prepared by Respondent 1 and were sent to voters and almost all the voters received these letters Do the petitioners further prove that although on this letter, it appears that the same is being sent at the instance of Sarva Dharma Sambhav Samajik Sangathna, the expenditure required in fact was incurred by Respondent 1 to the extent of Rs 12, 40, 830

(vi) Do the petitioners prove that advertisement in newspapers at Annexure A at Sl. Nos. A-2, A-5, A-7, A-8, A-10, A-14 to A-19, A-22 to A-27, A-28(b), A-30(a) (first part) A-30(b) (second part); Annexure B at Sl. Nos. B-4 to B-9, B-11 to B-14, B-17 and B-18, Annexure C at Sl. Nos. C-1, C-2, C-4, C-5, C-10, C-12, C-14 to C-18, C-23 and C-24. Annexure D at Sl. Nos. D-1, D-2, D-3, D-5, D-7, D-8, D-11, D-13, and D-15; Annexure E at S : Nos. E-1, E-2, E-9 and E-10; Annexure F at Sl. Nos. F-1, F-2, F-3, F-6, F-10, F-14 and F-16; Annexure G at Sl. Nos. G-1, G-2 and G-3; Annexure H at Sl. Nos. H-17 to H-14, H-17 and H-8 were published by Respondent 1 himself in connection with the election and he himself incurred the expenditure

(vii) Do the petitioners prove that the advertisements appearing in newspapers at -

Annexure A : at Sl. Nos. A-6, A-9, A-11 to A-13, A-20, A-21, A-27(a), A-28, A-30(b) (first part) and A-31(b);

Annexure B : at Sl. Nos. B-1, B-2, B-3, B-10, B-15, B-16 and B-19Annexure : at Sl. Nos. C-3, C-6 to C-9, C-11, C-13, C-19 to C-22

Annexure D : at Sl. Nos. D-6, D-9, D-10, D-12 and D-14

Annexure E : at Sl. Nos. E-3 to E-8;

Annexure F : at Sl. Nos. F-3, F-5, F-7 to F-9, F-11 to F-13 and F-15;

Annexure : at Sl. Nos. G-4 to G-8;

are published in connection with election by - Respondent 1 and the expenditure of which is incurred by Respondent 1 himself though in the said advertisement the names of publishers are shown as persons other than Respondent 1 as given in Annexures

(6) (a) Do the petitioners prove that Respondent 1 had employed M/s Yugdharma Consultant and Commercial Services, Nagpur to publicise his candidature and incurred expenditure as per the details shown in Annexure 17 and 18 and alleged in para 2.13 of the petition

(b) Do the petitioners prove that besides the above agency, Respondent 1 had employed two other agencies, namely, Orange City Advertising and Prasad Publicity for publishing his candidature by advertisements issued in the newspapers and thereby authorised and incurred expenditure as per details shown in Annexures 18-A, 18-B and 18-C and alleged in paras 2.23-A to 2.23-D of the petition

(c) Do the petitioners prove that election agent of Respondent 1 incurred total expenditure to the tune of Rs. 39, 500 on 14-6-1991 and 17-6-1991 for publication of advertisement in connection with the election

(7) Does the petitioners prove that Respondent 47 did not properly scrutinise the nomination of Respondent 3 and he was allowed to represent himself as such, although a wireless message dated 26-4-1991 to the contrary was received by the Returning Officer prior to the acceptance of the nomination papers from the Chief Electoral Officer of Maharashtra

(8) Do the petitioners prove that by allowing Respondent 3 to represent himself as the official candidate of RPI(K), the result of the election of Respondent 1 has been materiality affected(9) Are the petitioners entitled to have inspection of the ballot papers on the basis of the allegations made in paras 3.1 to 3.11 of the petition and the allegations made in paras 1 to 13 of Ex. 28

(10) Do the petitioners prove that the election of Respondent 1 to the Tenth Lok Sabha from 23, Nagpur Parliamentary Constituency is void on account of the commission of corrupt practices under Section 123(1-A) and Section 123(2) and Section 123(6) of the

(11) Do the petitioners prove that Respondent 2 has secured majority of valid votes to entitle him to be declared as duly elected from 23, Nagpur Parliamentary Constituency to the Tenth Lok Sabha

(12) Do the petitioners prove that but for the votes obtained by Respondent 1 by alleged corrupt practices, Respondent 2 would have obtained majority of valid votes to entitle him to be declared duly elected

(13) Whether Respondent 2 can be declared as duly elected to the Tenth Lok Sabha from 23, Nagpur Parliamentary Constituency, Nagpur

(14) What order

9. After the evidence of some of the witnesses was recorded on behalf of the appellants, Election Petitioner 1 filed an application, Ex. 701 on 27-5-1992, once again for amending the election petition in the light of the evidence recorded. Respondent 1 filed his objections to the said application through Ex. 834 on 15-6-1992. The learned Single Judge, allowed the application permitting the election petitioner to amend the election petition once again and being of the view that no new issue was required to be framed on the basis of the proposed amendments directed that Respondent 1 could apply for recalling any of the petitioners witnesses for further cross-examination. On 17-6-1992, Respondent 1 filed an application Ex. 835 for leave to amend the written statement which was also allowed. We shall advert to the proceedings concerning various amendments in the latter part of this judgment

10. The learned Single Judge after conclusion of the evidence and after hearing learned counsel for the parties held that the appellants (election petitioners) had proved that Respondent 1 had not maintained a correct and proper account of the election expenditure as is required to be maintained under Section 77 of the. It was also found that Respondent 1 had not shown in his return an expenditure to the extent of Rs. 58, 220 apart from the expenditure shown by him in the return of election expenditure but since the addition of the said amount, to the amount of expenditure shown by Respondent 1 in his return of election expenses, did not exceed the permissible limit of Rs 1, 50, 000, the returned candidate, Respondent 1, did not commit any corrupt practice as envisaged by Section 123(6) and dismissed the election petition but without any order as to costs in favour of Respondent 1

11. Since, in this appeal learned counsel for the appellants Dr. Ghatate has confined his case to Issues 3, 4(v), 5(b) (i) (ii) (v) (vi) (vii); Issue 6(a) (b) (c); and partly Issue 10, we are, as such, relieved of the necessity of dealing with the other issues. We confirm the findings of the High Court in respect of those issues of which correctness has not been disputed before us

12. The right to elect and the right to be elected are statutory rights. These rights do not inhere in a citizen as such and in order to exercise the right certain formalities as provided by the and the Rules made thereunder are required to be strictly complied with. The statutory requirements of election law are to be strictly observed because the election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law. The Act is a complete code in itself for challenging an election and an election must be challenged only in the manner provided for by the. In Jyoti Basu v Debi Ghosal this Court observe : (SCC pp. 696-97, para 8)

"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a strait-jacket." *

13. Though the election of a successful candidate is not to be interfered with lightly and the verdict of the electorate upset, this Court has emphasised in more than one case that one of the essentials of the election law is to safeguard the purity of the election process and to see that people do not get elected by flagrant breaches of the law or by committing corrupt practices. It must be remembered that an election petition is not a matter in which the only persons interested are the candidates who fought the election against each other. The public is also substantially interested in it and it is so because election is an essential part of a democratic process. It is equally well settled by this Court and necessary to bear in mind that a charge of corrupt practice is in the nature of a quasi-criminal charge, as its consequence is not only to render the election of the returned candidate void but in some cases even to impose upon him a disqualification for contesting even the next election. The evidence led in support of the corrupt practice must therefore, not only be cogent and definite but if the election petitioner has to succeed, he must establish definitely and to the satisfaction of the court the charge of corrupt practice which he levels against the returned candidate. The onus lies heavily on the election petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate. In the case of an election petition, based on allegations of commission of corrupt practice, the standard of proof is generally speaking that of criminal trial, which requires strict proof of the charge beyond a reasonable doubt and the burden of proof is on the petitioner and that burden does not shift. (See with advantage : Nihal Singh v. Rao Birendra Singh; Om Prabha Jain v. Charan Dass, Daulat Ram Chauhan v. Anand Sharma and Quamarul Islam v. S. K. Kanta)

14. By this proposition, however, we should not be understood to mean or imply that the returned candidate is absolved from his liability to bring forth evidence on the record to rebut the case of the petitioner and to particularly prove such facts which are within his special knowledge (Section 106 Evidence Act). Though, the nature of allegations in cases alleging corrupt practices are quasi-criminal and the burden is heavy on him who assails an election but unlike in a criminal trial, where an accused has the liberty to keep silent, during the trial of an election petition the returned candidate has to place before the court his version and to satisfy the court that he had not committed the corrupt practice as alleged in the petition and wherever necessary by adducing evidence besides giving his sworn testimony denying the allegations. However, this stage reaches if and when the election petitioner leads cogent and reliable evidence to prove the charges levelled against the returned candidate as only then can it be said that the former has discharged his burden. That necessarily means that if the election petitioner fails to adduce such evidence which may persuade the court to draw a presumption in his favour, the returned candidate wilt not be required to discharge his burden by adducing evidence in rebuttal. While on this point it will be also pertinent to mention that the election petitioner has to establish the charge by proof beyond reasonable doubt and not merely by preponderance of probabilities as in civil action. In Surinder Singh v. Hardial Singh this Court held it is very well settled and (SCC p. 104, para 23) "uniformally accepted that charges of corrupt practices are to be equated with criminal charges and proof thereof would be not preponderance of probabilities, as in civil action, but proof beyond reasonable doubt" and if after balancing the evidence adduced there still remains little doubt in proving the charge its benefit must go to the returned candidate. Various tests have been laid down by the High Courts and by this Court to determine the extent of proof required to establish a corrupt practice. The most well-accepted test however is that the charge must be established fully to the satisfaction of the Court. While insisting upon the standard of strict proof beyond a reasonable doubt, the courts are not required to extend or stretch the doctrine to such an extreme extent as to make it well nigh impossible to prove any allegation of corrupt practice and as was said in Harcharan Singh v. Sajjan Singh "such an approach would defeat and frustrate the very laudable and sacrosanct object of the in maintaining purity of the electoral process"

15. We are in respectful agreement with the above view. Sometimes direct evidence about the commission of corrupt practice may not be forthcoming or available and in that case, the charge may be proved by producing circumstantial evidence but the courts, in such cases insist, that each of the circumstances must be proved individually and all the circumstances put together must point unerringly only to the hypothesis of the commission of the corrupt practice by the returned candidate and must not be capable of any other hypothesis consistent with the innocence of the returned candidate. (Se : Quamarul Islam v. S. K. Kanta; Indira Nehru Gandhi v. Raj Narain; Ch. Razik Ram v. Ch. Jaswant Singh Chouhan.)

16. The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, however strong, cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since, pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action

17. Section 83 of theprovides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the corrupt practice that he alleges including as full a statement as possible of the name of the parties alleged to have committed such corrupt practices and the date and place of the commission of each of such corrupt practice. This section has been held to be mandatory and requires first a concise statement of material facts and then the full particulars of the alleged corrupt practice, so as to present a full picture of the cause of action

18. A petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise. (Se : Samant N. Balkrishna v. George Fernandez.)

19. The jurisdiction to try an election petition has been vested in the High Courts. Election petitions are generally speaking tried by experienced Judges of the High Courts. Those learned Judges have the benefit of observing the witnesses when they give evidence. Therefore, the appreciation of evidence by the High Court is entitled to great weight. Generally speaking this Court accepts the findings of fact arrived at by the High Court after appreciation of evidence. (See Sheosadan Singh v. Mohan Lal Gautam.) Being the Court of First Appeal, however, this Court has no inhibition in reversing such a finding, of fact or law, which has been recorded on a misreading or wrong appreciation of the evidence or the law, but ordinarily and generally speaking this Court does not, as it ought not to, interfere with the findings of fact recorded by the learned trial Judge of the High Court, unless there are compelling reasons to do so. It is in the light of the above-settled principles, that we shall consider the materials on the record and the findings of the High Court in respect of which challenge has been made before us

20. As already noticed, the appellants confined their challenge to the findings in respect of some of the issues only which relate to the commission of corrupt practice of incurring or authorising expenditure in excess of the prescribed limits within the meaning of Section 123(6) of the. It would, therefore, be appropriate to consider the parameters of the alleged corrupt practice before we examine the findings and the arguments in respect of the relevant issues

21. Section 77 of theprovides 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 days inclusive. Explanation 1 which was introduced by the Amendment Act of 1974 declares that any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purposes of sub-section (1) of Section 77. Sub-section (2) of Section 77 provides that the account of election expenses shall contain such particulars as may be prescribed and sub-section (3) lays down that the total of the said expenditure shall not exceed such amount as may be prescribed. Vide Section 78 of thethe account of election expenses is required to be lodged with District Election Officer by every candidate at an election within thirty days from the date of election of the returned candidate. The maximum amount of election expenditure which may be incurred by the candidates for the parliamentary and assembly constituencies has been prescribed in Rule 90 of the Conduct of Election Rules, 1961. Insofar as the parliamentary elections are concerned, the said limit is Rs 1, 50, 000. Under Section 123(6) of the Act, the incurring or authorising of expenditure in contravention of Section 77 of theamounts to commission of a corrupt practice. However, every contravention of Section 77 of thedoes not fall within the mischief of Section 123(6) of the. Neither the violation of sub-section (1) of Section 77 nor the violation of sub-section (2) of Section 77 amounts to the commission of the corrupt practice under Section 123(6) of the. However, Section 77(3) mandates that the total of the expenditure in connection with the election shall not exceed the prescribed limit and therefore the provisions of Section 123(6) of theare related only to Section 77(3) of the. If a candidate incurs or authorises expenditure in excess of the prescribed limits, he commits the corrupt practice under Section 123(6) of theand his election is liable to be set aside and he also incurs the disqualification of being debarred from contesting the next election. From a plain reading of Sections 123(6) and 77 including Explanation 1 to Section 77 of the Act, it is therefore clear that in order to be a corrupt practice, the excessive expenditure must be incurred or authorised by the candidate or his election agent. An expenditure incurred by a third person, which is not authorised by the candidate or his election agent is not a corrupt practice. In Magraj Patodia v. R. K. Birla, after referring to a catena of authorities even before the inclusion of Explanation 1 to Section 77 of theby the Amendment Act 58 of 1974, it was emphasised that to prove the corrupt practice of incurring or authorising expenditure beyond the prescribed limit, it is not sufficient for the petitioner to merely prove that the expenditure beyond the prescribed limit had been incurred in connection with the election of the returned candidate, but he must go further and prove that the excess expenditure was authorised or incurred with the consent of the returned candidate or his election agent. In Indira Gandhi v. Raj Naraine this Court reaffirmed the above view and taking note of the Amendment Act 58 of 1974, opined that voluntary expenditure incurred by friends, relations or sympathisers of the candidate or the candidates political party are not required to be included in the candidates return of expenses, unless the expenses were incurred in the circumstances from which it could be positively inferred that the successful candidate had undertaken that he would reimburse the party or the person who incurred the expense. It is not enough to prove that some advantage accrued to the returned candidate or even that the expenditure was incurred for the benefit of the returned candidate or that it was within the knowledge of the returned candidate and he did not prevent it, to clothe the returned candidate with the liability of committing the alleged corrupt practice. Noticing that during an election, the sponsoring or supporting political parties as well as friends, sympathisers and well-wishers do sometimes incur expenditure not only without the consent of the candidate concerned but even without his knowledge this Court opined that the successful candidate cannot be clothed with all such expenses to suffer the disqualification

22. In P. Nalla Thampy Terah (Dr.) v. Union of India a Constitution Bench of this Court examined the validity of Explanation 1 to Section 77(1) of the(introduced in 1974) and Chandrachud, C.J. (as he then was) while upholding its constitutionality, observe : (SCC p. 201, para 14)

"In any democratic system of Government, political parties occupy a distinct and unique place. They are looked upon as guardian angels by their members though, occasionally, they fail to discharge the benign role of guardian, leave alone the angelic part of it. It is through them that the generality of people attempt to voice or ventilate their grievances. Considering, also, the power which they wield in the administration of Governmental affairs, a special conferment of benefits on them in the matter of modalities governing the election process cannot be regarded as unreasonable or arbitrary." *

23. The Constitution Bench thus emphatically laid down that unless the expenditure is in fact incurred or authorised by the candidate or his election agent, he cannot be saddled with that expenditure. Of course a candidate cannot be permitted to place his own funds in the power or possession of a political party, an association, or some other persons or individuals for being spent on his behalf and then plead for the protection under Explanation 1 to Section 77 of the. Where the election petitioner successfully establishes that the funds were provided by the returned candidate, it would be immaterial as to who actually made the payments, which ought to have been included in the return of election expense. It is not "whose hand it is that spends the money". The essence of the matter is "whose money it is" that has been spent. In order that Explanation 1 to Section 77 of themay apply, therefore, it must be proved that the source of the expenditure incurred was not out of the money of the candidate or his election agent

24. Respondent 1 lodged the account of his election expenses with the District Election Officer on 12-7-1991, supported by 45 vouchers disclosing the total expenditure of Rs. 72, 421.85. The appellants in the election petition pleaded that Respondent 1 had not kept a true and correct account of the expenditure incurred and/or authorised by him or by his election agent in relation to the elections held on 12-6-1991 and had exceeded the prescribed limit and thereby committed the con-upt practice under Section 123(6) of the. The appellants alleged that a huge amount of expenditure incurred in connection with the election of Respondent 1 was falsely shown to have been incurred by the political party and other associations, persons or individuals, though in fact the expenditure had been incurred and/or authorised by Respondent 1 himself or by his election agent. It was asserted that Respondent 1 had placed his own funds in the power and possession of the political party, organisations and individuals for being spent in connection with his election in order to circumvent the law and escape from the consequence of incurring and authorising expenditure beyond the prescribed limits. It was alleged that Respondent 1 had incurred an expenditure for the purpose of his election during the period 25-4-1991 to 16-6-1991 to the tune of Rs. 38, 30, 375.50, as against the permissible limit of Rs 1, 50, 000.00. The statement showing the expenditure allegedly incurred and authorised by Respondent 1 was given in para 2.24 of the election petition. At the trial, however, Items 2, 8, 9 and 14 out of that statement were not pressed. The High Court, however, in para 200 of the judgment found that besides the expenditure disclosed in the return of expenses filed by Respondent 1, he had also incurred the following expenses, which had been supressedRs. 17, 900.00 for the amount paid to Raj Automobiles;

Rs. 1320.00 for the advertisement in the Tarun

Bharat dated 28-4-1991

Rs. 7000.00 for the advertisement in Tarun Bharat

-Election Special

Rs. 9100.00 for the advertisement in Lokmat dated

12-5-1991 (Sharad Pawar Mitra

Mandal)

Rs. 22, 900.00 in view of the findings recorded on

Issue 5(b)(vi) and (vii)

Total : Rs. 58, 220.00

and adding the amount of expenditure suppressed i.e. Rs. 58, 220.00 to the declared expenses, the High Court found that the return of expenditure filed by Respondent 1 should have been for a sum of Rs 1, 30, 641.85. However, since even that amount fell short of the permissible expenditure of Rs. 1, 50, 000.00, it was found that Respondent 1 had not committed the corrupt practice within the meaning of Section 123(6) of the. Whereas the appellants have challenged the findings of the High Court on some of the issues, as already noticed, the returned candidate, Respondent 1, has also filed cross-objections challenging the finding of the High Court in respect of the addition of Rs. 58, 220.00

Issue 4(v)

25. Though Issue 4 concerns five items, it is only Item (v) which has been pressed before us by the learned counsel for the appellants. The findings of the High Court on Items (i) to (iv) of Issue 4, which have been decided against the appellants have not been challenged before us and therefore, we confirm the findings of the High Court regarding those items. So far as Item (v) is concerned, it relates to the payments made by Respondent 1 to M/s Raj Automobiles for purchase of fuel etc

26. According to the appellants, Respondent 1 in his return of expenditure submitted to the District Election Officer had, under Items 31 to 34, shown the expenditure incurred by him on account of purchases of petrol etc. from M/s Raj Automobiles, Civil Lines, Nagpur under Bills Nos. 401 to 404 for the period 1-5-1991 to 12-6-1991 but had failed to include the cost of 1180 litres of petrol also allegedly purchased by the returned candidate from Raj Automobiles over and above the quantity of petrol shown to have been purchased by Respondent 1 under Bills Nos. 401, 402 and 403, as disclosed in the return of expenses filed by him for the period 1-5-1991 to 12-6-1991. The appellants specifically pleaded that petrol which had been shown to have been purchased by Respondent 1 was for three vehicle : (i) MH-31-G-1722; (ii) MH-02-2200; and (iii) 7069 but the cost of purchase of 1180 litres of petrol had been suppressed. In his written statement, Respondent 1, admitted that under Items 31 to 34 in his return of expenditure, he had shown the expenditure incurred by him on account of the purchase of petrol from M/s Raj Automobiles during 1-5-1991 to 12-6-1991 but denied that Raj Automobiles, Civil Lines, Nagpur had sold 1180 litres of petrol over and above the quantity of petrol shown to have been purchased by him under Bills Nos. 401, 402, 403 filed along with the statement of account. It was pleaded that the allegation was vague and based on speculation and that no particulars had been given of the basis on which it was alleged that he had purchased 1180 litres of petrol at the cost of Rs 17, 900 in addition to what had been disclosed by him

27. The appellants examined PW 36, Shankar Rao Gadge, who was working as an Accountant with Raj Automobiles at the relevant time. He deposed that a credit account had been started for Respondent 1 at the instance of Mrs. Shalini Bai Meghe (wife of Respondent 1 and proprietor of Raj Automobiles) and credit slip books had been issued to Respondent 1. That whenever petrol or oil was purchased by or for Respondent 1, a copy of the credit slip used to be given to M/s Raj Automobiles and its counterfoil was retained by the customer. The original credit slips were later on returned to the first respondent along with the bill. The witness after referring to the record deposed that fuel had been supplied to Respondent 1 for car nos. MH-31-17 2, MH-02-2200, MK-1/1022 besides Vehicles Nos. 1422 and 7069 during 1-5-1991 to 16-6-1991. He also proved a cash memo dated 16-6-1991 for Bill No. 2503 (Ex. 681) for sale of 10 litres of petrol sold to Respondent 1. The witness admitted that Receipt No. 843 dated 12-7-1991 (Ex. 680) was in respect of Bills Nos. 401 to 405 for the consolidated amount of Rs. 12, 152.40 and went on to say that the payments had been made by a cheque by Respondent 1. According to the witness, except the petrol which was sold under the cash memo Ex. 680 all other petrol and oil sold to Datta Meghe was worth Rs 12, 152.40 p. All these transactions are carried over and entered in their accounts."We did not sell either oil or petrol besides these to Datta Meghe" was the categorical statement made by PW 36 Gadge

28. The appellants also examined Shri Prakash Baidya PW 53. This witness earlier used to be a partner in M/s Raj Automobiles till 1991 whereafter he ceased to have any concern with Raj Automobiles. During the parliamentary elections, he was the General Secretary of the East Nagpur Assembly Constituency for B. 1P the party to which both the appellants as well as Respondent 2 belonged and was in-charge of that area. He deposed that it is necessary to put one litre of oil if the consumption of petrol is 100 to 125 litres and that in one litre of oil, the run of the vehicle would be about 1000 kms. on an average consumption at the rate of 10 kms. per litre of petrol. During the cross-examination, he admitted that he had deposed about the ratio of consumption of petrol and oil from his experience and not from any book and also conceded that if an engine is old it would consume more oil as well as more petrol and that the oil-petrol ratio varies according to the horsepower of the engine and its model and that if the chamber of the vehicle leaks, the consumption of oil would be more because of leakage and not on account of the consumption. He admitted that he is not an automobile engineer

29. Respondent 1, the returned candidate in his statement admitted that his wife owns Raj Automobiles and that petrol and oil were bought by him on credit from Raj Automobiles, except for one cash transaction on 16-6-1992 for Rs 147.40 (Ex. 681). He went on to add that he did not buy petrol from any other petrol station except Raj Automobiles during the election period and that the credit slips which used to be issued to Raj Automobiles were received back by him with the bill from Raj Automobiles and after the bills were paid, the credit slips were destroyed. During his cross-examination, he stated that he had three diesel and four petrol cars with him for his election and that he had hired some motor-cars and autorickshaw on May 19, 20 and 21 and June 8, 9, 10, 1991 through Prince Travels. He disclosed the names of the parties from whom he had procured those vehicles and asserted that besides Car No. 7069 which he had procured from Nagar Yuvak Sanstha, he used the cars of the workers who used to come and see him. According to him Vehicle No. 7069 is NE and the model was 3/4 years old

30. For coming to the conclusion that the returned candidate had purchased more fuel than the one shown by him in his return of expenditure, the High Court relied upon the petrol-oil ratio as deposed to by PW Baidya. It was found that the amount of oil admittedly purchased by the returned candidate as per Bill No. 404 when considered in the light of the total fuel purchased would show that, much more fuel would have been purchased to consume the quantity of oil purchased as per Bill No. 404. It was found by the High Court on the basis of the calculations made that the returned candidate had suppressed an expenditure to the tune of Rs 18, 277.60 but since the appellants had asserted that there had been suppression of the use of 1180 litres of petrol worth Rs. 17, 900 only, therefore only that much of expenditure could be added to the disclosed expenses of the returned candidate. The High Court while entering into the calculations did not base itself on the oil-petrol ratio but multiplied the consumption of petrol for one of the cars (MH-31G-1727), which was admittedly used by Respondent 1 by 3 and drew an inference that for the other 3 cars also, the same amount of petrol would have been consumed and thus found that the returned candidate would have purchased more petrol worth at least Rs 18, 277.60

31. In the election petition a specific allegation had been made to the effect that the returned candidate had purchased 1180 litres of petrol in addition to what had been disclosed by him from Raj Automobiles. In the verification of the election petition, the appellants had disclosed the source of information with regard to the contents of para 2.10 as based on the information received from Shri Baidya PW. In the affidavit filed in support of the allegations of the said corrupt practice, the source of information was also disclosed to be Shri Baidya PW. However, PW 53 Shri Prakash Baidya, in his deposition in court did not state that he had conveyed any information to the election petitioners about the alleged excess purchase of 1180 litres of petrol by Respondent 1 from M/s. Raj Automobiles apart from the quantity of fuel purchased by him as disclosed in the return of election expenditure. In his statement, he only speculated about the excess purchase of petrol on the basis of oil-petrol ratio, based on his experience even though admittedly he is not an expert, not even an automobile engineer. In the election petition nothing was said about the petrol-oil ratio as the basis from which the appellants had inferred that 1180 litres of petrol had been purchased by the returned candidate in addition to the quantity of fuel shown to have been purchased by him from Raj Automobiles. Except for giving same figure of 1180 litres of petrol alleged to have been purchased by Respondent 1, the appellants did not give any other facts or particulars in the election petition for alleging purchase of 1180 litres of excess petrol and left the matter totally vague. Even in his own statement, Appellant 1 did not disclose the basis for arriving at the figure of 1180. An attempt was apparently made to get sustenance from the testimony of Baidya PW 53, admittedly a partyman of the appellants and Respondent 2, to support the allegations made in the petition on the basis of oil-petrol ratio. Even in that behalf we find that no evidence was led by the appellants to show as to what were the models of the vehicles which were used by the returned candidate and the extent to which all those vehicles had been used during the elections. The returned candidate, R1W1 was not even asked a single question regarding the extent of the use of the different vehicles to determine the mileage-run in respect of each one of those vehicles. No explanation was even sought from him regarding the oil-petrol ratio or as to why so much of oil had been purchased for so little fuel. In this connection, it is also relevant to note that PW 33 Shri Vijav Rathi, the Accountant of Raj Automobiles, had been summoned by the appellants along with the record presumably to prove the excess sale of 1180 litres of petrol, apart from the fuel shown in Bills Nos. 401, 402, 403 and 404 but the record was never got exhibited and there is, thus, force in the submission of Mr. Manohar, learned counsel for the returned candidate that a presumption should be drawn against the appellants to the effect that the summoned record being inconvenient was not got exhibited by the appellants. The observation of the High Court, under the circumstances, to the effect that Raj Automobiles had suppressed the record does not appear to be well founded as the summoned record had been brought by PW 33 to the court but the party chose not to get the same exhibited and no fault can be found with Raj Automobiles

32. The High Court, as already noticed, found the suppression of Rs. 18, 277.60 on the calculation based on the quantity of petrol purchased for Vehicle No. MH-31-G-1722. The total petrol purchased for that vehicle was shown as 470 litres and the amount of oil purchased for that vehicle was shown to be 22 litres. Obviously, the ratio of oil-petrol as deposed to by Shri Baidya PW 53, does not appear to have any relation to the petrol-oil ratio for the said vehicle. On the basis of the ratio as deposed to by PW 53, more than 50 litres of oil should have been consumed for this vehicle. The High Court, as already observed, calculated the cost of 470 litres of petrol as Rs. 6927.80 and then multiplied it by 3 and arrived at the figure of Rs. 20, 783.40 and deducting an amount of Rs. 2505.80 which had been shown to be cost of the petrol used for the two other vehicles used by the returned candidate, determined the suppression at Rs. 18, 277.60, but since the election petitioners had alleged suppression of the use of 1180 litres of petrol worth Rs. 17, 900 only, the High Court fastened the liability on the first respondent not for the amount of Rs. 18, 277.60 but Rs. 17, 900 only

33. In our opinion, the approach of the High Court was wrong and it fell into a complete error in making these calculations which are not even based on guesswork but are totally conjectural in nature. The type of exercise done by the High Court had neither any factual foundation in the election petition nor even in the evidence. The High Court made out a new case - neither the one pleaded by the election petitioners nor the one pleaded by the returned candidate. It was not a permissible course for the High Court to adopt while dealing with the allegation of commission of a corrupt practice in an election petition. Since, no evidence wasted by the election petitioner about the alleged purchase of excess of 1180 litres of petrol, the High Court ought to have found the issue against the appellants. The finding of the High Court is, not only conjectural but is based on surmises and not on any evidence. Except PW 1 who made a vague statement to the effect that he had seen the vehicles pleaded in the election petition, on the roads throughout during the elections, without indicating when, where and which vehicle, no other evidence was produced to show the extent to which the other vehicles in question had been used during the election by Respondent 1 or his election agent or by any other person with the consent of Respondent 1 or his election agent. The election petitioner could have examined witnesses from different segments of the constituency to depose, if they had seen the returned candidate or his election agent in that area in any particular vehicle and the number of occasions when the returned candidate had been so seen in different localities in the same or different vehicles to show the extent of run of those vehicles by bringing out the total distance likely to have been covered. No such evidence was led, though the production of such evidence was not an utter impossibility. That Vehicle No. 1722 (which was made the basis for calculation of total run by the High Court) was more extensively used, than the other vehicles is a reasonable possibility which cannot be ignored. It was incumbent upon the appellants to prove the sale of 1180 litres of petrol in favour of Respondent 1 by Raj Automobiles as alleged by them in the election petition, by leading cogent and satisfactory evidence and they miserably failed to prove the said charge, let alone beyond a reasonable doubt. Even the mathematical calculation made by the High Court also appears to be incorrect but we need not detain ourselves to point out the same because of the infirmities pointed out by us in the approach of the High Court. The finding of the High Court on Issue 4(v), therefore, cannot be sustained and we set aside that finding and hold that the appellants have failed to prove Issue 4(v) and consequently the addition of Rs 17, 900.00 in the return of expenditure of Respondent 1 was not justified and the said amount shall have to be excluded. The cross-objection to that extent succeeds and is allowedIssue 5(b) (i) and (ii)

34. The allegations of the election petitioners which led to the framing of Issue 5(b) (1) and (ii) are contained in paragraphs 2.11 to 2.14 of the election petition and concern the issuance of voter cards to 12, 43, 382 voters in the constituency by the returned candidate after getting the same printed at a cost of Rs 2, 25, 000 from Shakti Offset Works, appealing to the electorate to vote for the returned candidate. Besides, Respondent 1 is also alleged to have got printed posters of different sizes, namely, one lakh posters of 20" x 30"; one lakh fifty thousand posters of 18" x 23" and seventy-five thousand posters of 15" x 20". propagating his candidature and these posters of different sizes, on an average of about 300 posters were exhibited at each of the 1250 polling booths in the constituency. It was alleged that in all 3, 25, 000 posters were got printed by the returned candidate between 25-4-1991 and 21-5-1991 after incurring an expense of Rs 3, 40, 250.00 for the printing of the said posters and the first respondent did not include in the return of his election expenses either the amount of Rs 2, 25, 000 being the cost of the voter cards or Rs. 3, 40, 250 being the cost of the posters. In the written statement, while admitting that the appeal made in the voter cards was to cast votes in favour of the first respondent and that the posters were also published for the furtherance of the prospects of the election of the first respondent, the returned candidate denied to have incurred any expenditure at all on printing and distribution of either the voter cards or the posters. According to the first respondent, he learnt about the printing of about four lakh voter cards by the Nagpur City District Congress Committee at its own expense and also came to know that some posters had been got printed and published by Nagpur City District Congress Committee while some more posters had been supplied by Congress (1) through its sub-organisations, at various.