T.M. Chandrasekhar Vs. L.R. Shivaramegowda - Court Judgment

Excerpt:

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	'title_for_layout' => 'T M Chandrasekhar Vs L R Shivaramegowda - Citation 382398 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '382398',
			'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
			'appealno' => 'E.P. No. 15 of 1990',
			'appellant' => 'T.M. Chandrasekhar',
			'authreffered' => '',
			'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
			'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'B. Rudragowda, Adv.',
			'counseldef' => 'S. Pramila, Adv. for R-1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1991-09-27',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Hiremath, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Hiremath, J.</p><p style="text-align: justify;">1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p style="text-align: justify;">2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p style="text-align: justify;">3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p style="text-align: justify;">4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p style="text-align: justify;">(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p style="text-align: justify;">(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p style="text-align: justify;">(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p style="text-align: justify;">(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p style="text-align: justify;">(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p style="text-align: justify;">(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p style="text-align: justify;">(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p style="text-align: justify;">Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p style="text-align: justify;">As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p style="text-align: justify;">(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p style="text-align: justify;">(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p style="text-align: justify;">6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p style="text-align: justify;">7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p style="text-align: justify;">8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p style="text-align: justify;">9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p style="text-align: justify;">10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p style="text-align: justify;">11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p style="text-align: justify;">12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p style="text-align: justify;">13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p style="text-align: justify;">14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p style="text-align: justify;">16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p style="text-align: justify;">17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p style="text-align: justify;">(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p style="text-align: justify;">(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p style="text-align: justify;">(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p style="text-align: justify;">(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p style="text-align: justify;">(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p style="text-align: justify;">(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p style="text-align: justify;">(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p style="text-align: justify;">(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p style="text-align: justify;">My findings are:</p><p style="text-align: justify;">(1) Issue No. 1: No. </p><p style="text-align: justify;">(2) Issue No. 2: No. </p><p style="text-align: justify;">(3) issue No. 3; No,</p><p style="text-align: justify;">(4) Issue No. 4; No. </p><p style="text-align: justify;">(5) Issue No. 5: No,</p><p style="text-align: justify;">(6) Issue No. 6: No,</p><p style="text-align: justify;">(7) Issue No. 7 : Yes.</p><p style="text-align: justify;">(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p style="text-align: justify;">and for the following:</p><p style="text-align: justify;">REASONS</p><p style="text-align: justify;">18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p style="text-align: justify;">(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p style="text-align: justify;">(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p style="text-align: justify;">(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p style="text-align: justify;">(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p style="text-align: justify;">(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p style="text-align: justify;">(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p style="text-align: justify;">In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p style="text-align: justify;">ISSUE No. 1:</p><p style="text-align: justify;">19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p style="text-align: justify;">20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p style="text-align: justify;">21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p style="text-align: justify;">ISSUE No. 2:</p><p style="text-align: justify;">22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p style="text-align: justify;">ISSUE No. 3:</p><p style="text-align: justify;">23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p style="text-align: justify;">ISSUE NO. 4:</p><p style="text-align: justify;">24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p style="text-align: justify;">'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p style="text-align: justify;">Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p style="text-align: justify;">Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p style="text-align: justify;">ISSUE NO. 5:</p><p style="text-align: justify;">25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p style="text-align: justify;">'Yours faithfully </p><p style="text-align: justify;">L.R.Shivaramegowda'</p><p style="text-align: justify;">(Kannada) </p><p style="text-align: justify;">At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p style="text-align: justify;">(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p style="text-align: justify;">(2) He would strive with the. Government for the all sided development of the taluk.</p><p style="text-align: justify;">(3) He would make honest efforts towards securing employment to the unemployed.</p><p style="text-align: justify;">(4) He would secure increased facilities from Banks to the economically backward.</p><p style="text-align: justify;">(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p style="text-align: justify;">(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p style="text-align: justify;">(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p style="text-align: justify;">(8) Would give priority for the protection of the minorities and Dalits.</p><p style="text-align: justify;">Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p style="text-align: justify;">26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p style="text-align: justify;">27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p style="text-align: justify;">28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p style="text-align: justify;">29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p style="text-align: justify;">30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p style="text-align: justify;">31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p style="text-align: justify;">(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p style="text-align: justify;">33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p style="text-align: justify;">34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p style="text-align: justify;">35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p style="text-align: justify;">36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p style="text-align: justify;">37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p style="text-align: justify;">38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p style="text-align: justify;">39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p style="text-align: justify;">40. ISSUE NO. 6</p><p style="text-align: justify;">This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p style="text-align: justify;">' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p style="text-align: justify;">It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p style="text-align: justify;">'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p style="text-align: justify;">Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p style="text-align: justify;">Kuruba Janangada Jagruta Vedike </p><p style="text-align: justify;">Nagamangala Taluk.' </p><p style="text-align: justify;">This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p style="text-align: justify;">41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p style="text-align: justify;">42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p style="text-align: justify;">'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p style="text-align: justify;">This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p style="text-align: justify;">43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p style="text-align: justify;">'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p style="text-align: justify;">PW-26 Srinivasaiah deposed, -</p><p style="text-align: justify;">'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p style="text-align: justify;">There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p style="text-align: justify;">44. ISSUE NOS. 7 & 8:</p><p style="text-align: justify;">Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p style="text-align: justify;">45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p style="text-align: justify;">46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p style="text-align: justify;">47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p style="text-align: justify;">48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p style="text-align: justify;">49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p style="text-align: justify;">50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p style="text-align: justify;">51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p style="text-align: justify;">52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p style="text-align: justify;">53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p style="text-align: justify;">54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p style="text-align: justify;">55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p style="text-align: justify;">56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p style="text-align: justify;">57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p style="text-align: justify;">58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p style="text-align: justify;">59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p style="text-align: justify;">60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p style="text-align: justify;">'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(2) The account shall contain such particulars, as may be prescribed.</p><p style="text-align: justify;">(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p style="text-align: justify;">(Explanations to this Section are not necessary to be referred to here)</p><p style="text-align: justify;">It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p style="text-align: justify;">'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p style="text-align: justify;">It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p style="text-align: justify;">61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p style="text-align: justify;">'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p style="text-align: justify;">Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p style="text-align: justify;">62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p style="text-align: justify;">'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p style="text-align: justify;">In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p style="text-align: justify;">63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p style="text-align: justify;">'100. Grounds for declaring election to be void :-</p><p style="text-align: justify;">(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p style="text-align: justify;">the High Court shall declare the election of the returned candidate to be void.'</p><p style="text-align: justify;">It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p style="text-align: justify;">64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p style="text-align: justify;">'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p style="text-align: justify;">One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p style="text-align: justify;">65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p style="text-align: justify;">'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p style="text-align: justify;">Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p style="text-align: justify;">'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p style="text-align: justify;">Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p style="text-align: justify;">66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p style="text-align: justify;">67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p style="text-align: justify;">68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p style="text-align: justify;">69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p style="text-align: justify;">70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p style="text-align: justify;">71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p style="text-align: justify;">' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p style="text-align: justify;">(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p style="text-align: justify;">(b) has no good reason or justification for the failure,</p><p style="text-align: justify;"> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p style="text-align: justify;">Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p style="text-align: justify;">72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p style="text-align: justify;">'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p style="text-align: justify;">(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(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,-</p><p style="text-align: justify;">(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p style="text-align: justify;">(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p style="text-align: justify;"> (3) For the purpose of this section,-</p><p style="text-align: justify;">(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p style="text-align: justify;">(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p style="text-align: justify;"> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p style="text-align: justify;">Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p style="text-align: justify;">73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p style="text-align: justify;">74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p style="text-align: justify;">'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p style="text-align: justify;">In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p style="text-align: justify;">' 86. Particulars of account of election expenses.-</p><p style="text-align: justify;">(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p style="text-align: justify;">(a) the date on which the expenditure was incurred or authorized;</p><p style="text-align: justify;">(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p style="text-align: justify;">(c) the amount of the expenditure-</p><p style="text-align: justify;"> (i) the amount paid;</p><p style="text-align: justify;"> (ii) the amount outstanding;</p><p style="text-align: justify;">(d) the date of payment;</p><p style="text-align: justify;">(e) the name and address of the payee;</p><p style="text-align: justify;">(f) the serial number of vouchers, in case of amount paid;</p><p style="text-align: justify;">(g) the serial number of bills, if any, in case of amount outstanding;</p><p style="text-align: justify;">(h) the name and address of the person to whom the amount outstanding is payable.</p><p style="text-align: justify;"> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p style="text-align: justify;">(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p style="text-align: justify;">(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p style="text-align: justify;">It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p style="text-align: justify;">75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p style="text-align: justify;">76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1992KAR444; 1991(3)KarLJ308',
			'ratiodecidendi' => '',
			'respondent' => 'L.R. Shivaramegowda',
			'sub' => 'Election',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 't-m-chandrasekhar-vs-l-r-shivaramegowda',
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		(int) 0 => '382398',
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$title_for_layout = 'T M Chandrasekhar Vs L R Shivaramegowda - Citation 382398 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382398',
		'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
		'appealno' => 'E.P. No. 15 of 1990',
		'appellant' => 'T.M. Chandrasekhar',
		'authreffered' => '',
		'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
		'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'B. Rudragowda, Adv.',
		'counseldef' => 'S. Pramila, Adv. for R-1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1991-09-27',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Hiremath, J.',
		'judgement' => 'ORDER<p>Hiremath, J.</p><p>1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p>2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p>3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p>4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a>Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p>(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p>(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p>(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p>(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p>(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p>(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p>(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p>Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p>As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p>(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p>(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p>5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p>6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p>7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p>8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p>9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p>10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p>11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p>12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p>13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p>14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p>15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p>16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p>17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p>(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p>(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p>(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p>(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p>(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p>(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p>(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p>(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p>My findings are:</p><p>(1) Issue No. 1: No. </p><p>(2) Issue No. 2: No. </p><p>(3) issue No. 3; No,</p><p>(4) Issue No. 4; No. </p><p>(5) Issue No. 5: No,</p><p>(6) Issue No. 6: No,</p><p>(7) Issue No. 7 : Yes.</p><p>(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p>and for the following:</p><p>REASONS</p><p>18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p>(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p>(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p>(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p>(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p>(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p>(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p>In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p>ISSUE No. 1:</p><p>19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p>20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p>21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p>ISSUE No. 2:</p><p>22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p>ISSUE No. 3:</p><p>23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p>ISSUE NO. 4:</p><p>24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p>'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p>Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p>Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p>ISSUE NO. 5:</p><p>25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p>'Yours faithfully </p><p>L.R.Shivaramegowda'</p><p>(Kannada) </p><p>At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p>(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p>(2) He would strive with the. Government for the all sided development of the taluk.</p><p>(3) He would make honest efforts towards securing employment to the unemployed.</p><p>(4) He would secure increased facilities from Banks to the economically backward.</p><p>(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p>(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p>(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p>(8) Would give priority for the protection of the minorities and Dalits.</p><p>Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p>26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p>27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p>28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p>29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p>30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p>31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p>(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p>33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p>34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p>35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p>36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p>37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p>38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p>39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p>40. ISSUE NO. 6</p><p>This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p>' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p>It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p>'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p>Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p>Kuruba Janangada Jagruta Vedike </p><p>Nagamangala Taluk.' </p><p>This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p>41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p>42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p>'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p>This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p>43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p>'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p>PW-26 Srinivasaiah deposed, -</p><p>'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p>There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p>44. ISSUE NOS. 7 & 8:</p><p>Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p>45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p>46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p>47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p>48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p>49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p>50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p>51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p>52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p>53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p>54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p>55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p>56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p>57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p>58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p>59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p>60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p>'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p>**** **** ****</p><p>(2) The account shall contain such particulars, as may be prescribed.</p><p>(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p>(Explanations to this Section are not necessary to be referred to here)</p><p>It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p>'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p>It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p>61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p>'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p>Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p>62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p>'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a>Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p>In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p>63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p>'100. Grounds for declaring election to be void :-</p><p>(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p>**** **** ****</p><p>(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p>**** **** ****</p><p>(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p>the High Court shall declare the election of the returned candidate to be void.'</p><p>It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p>64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p>'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p>One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p>65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p>'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p>Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p>'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p>Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p>66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p>67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p>68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p>69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p>70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p>71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p>' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p>(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p>(b) has no good reason or justification for the failure,</p><p> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p>Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p>72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p>'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p>(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p>(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</p><p>(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,-</p><p>(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p>(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p> (3) For the purpose of this section,-</p><p>(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p>(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p>Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p>73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p>74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p>'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p>In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p>' 86. Particulars of account of election expenses.-</p><p>(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p>(a) the date on which the expenditure was incurred or authorized;</p><p>(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p>(c) the amount of the expenditure-</p><p> (i) the amount paid;</p><p> (ii) the amount outstanding;</p><p>(d) the date of payment;</p><p>(e) the name and address of the payee;</p><p>(f) the serial number of vouchers, in case of amount paid;</p><p>(g) the serial number of bills, if any, in case of amount outstanding;</p><p>(h) the name and address of the person to whom the amount outstanding is payable.</p><p> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p>(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p>(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p>It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p>75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p>76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p></p><p>',
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			'id' => '382398',
			'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
			'appealno' => 'E.P. No. 15 of 1990',
			'appellant' => 'T.M. Chandrasekhar',
			'authreffered' => '',
			'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
			'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'B. Rudragowda, Adv.',
			'counseldef' => 'S. Pramila, Adv. for R-1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1991-09-27',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Hiremath, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Hiremath, J.</p><p style="text-align: justify;">1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p style="text-align: justify;">2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p style="text-align: justify;">3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p style="text-align: justify;">4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p style="text-align: justify;">(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p style="text-align: justify;">(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p style="text-align: justify;">(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p style="text-align: justify;">(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p style="text-align: justify;">(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p style="text-align: justify;">(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p style="text-align: justify;">(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p style="text-align: justify;">Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p style="text-align: justify;">As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p style="text-align: justify;">(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p style="text-align: justify;">(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p style="text-align: justify;">6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p style="text-align: justify;">7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p style="text-align: justify;">8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p style="text-align: justify;">9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p style="text-align: justify;">10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p style="text-align: justify;">11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p style="text-align: justify;">12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p style="text-align: justify;">13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p style="text-align: justify;">14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p style="text-align: justify;">16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p style="text-align: justify;">17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p style="text-align: justify;">(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p style="text-align: justify;">(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p style="text-align: justify;">(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p style="text-align: justify;">(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p style="text-align: justify;">(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p style="text-align: justify;">(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p style="text-align: justify;">(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p style="text-align: justify;">(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p style="text-align: justify;">My findings are:</p><p style="text-align: justify;">(1) Issue No. 1: No. </p><p style="text-align: justify;">(2) Issue No. 2: No. </p><p style="text-align: justify;">(3) issue No. 3; No,</p><p style="text-align: justify;">(4) Issue No. 4; No. </p><p style="text-align: justify;">(5) Issue No. 5: No,</p><p style="text-align: justify;">(6) Issue No. 6: No,</p><p style="text-align: justify;">(7) Issue No. 7 : Yes.</p><p style="text-align: justify;">(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p style="text-align: justify;">and for the following:</p><p style="text-align: justify;">REASONS</p><p style="text-align: justify;">18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p style="text-align: justify;">(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p style="text-align: justify;">(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p style="text-align: justify;">(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p style="text-align: justify;">(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p style="text-align: justify;">(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p style="text-align: justify;">(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p style="text-align: justify;">In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p style="text-align: justify;">ISSUE No. 1:</p><p style="text-align: justify;">19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p style="text-align: justify;">20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p style="text-align: justify;">21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p style="text-align: justify;">ISSUE No. 2:</p><p style="text-align: justify;">22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p style="text-align: justify;">ISSUE No. 3:</p><p style="text-align: justify;">23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p style="text-align: justify;">ISSUE NO. 4:</p><p style="text-align: justify;">24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p style="text-align: justify;">'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p style="text-align: justify;">Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p style="text-align: justify;">Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p style="text-align: justify;">ISSUE NO. 5:</p><p style="text-align: justify;">25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p style="text-align: justify;">'Yours faithfully </p><p style="text-align: justify;">L.R.Shivaramegowda'</p><p style="text-align: justify;">(Kannada) </p><p style="text-align: justify;">At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p style="text-align: justify;">(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p style="text-align: justify;">(2) He would strive with the. Government for the all sided development of the taluk.</p><p style="text-align: justify;">(3) He would make honest efforts towards securing employment to the unemployed.</p><p style="text-align: justify;">(4) He would secure increased facilities from Banks to the economically backward.</p><p style="text-align: justify;">(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p style="text-align: justify;">(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p style="text-align: justify;">(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p style="text-align: justify;">(8) Would give priority for the protection of the minorities and Dalits.</p><p style="text-align: justify;">Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p style="text-align: justify;">26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p style="text-align: justify;">27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p style="text-align: justify;">28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p style="text-align: justify;">29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p style="text-align: justify;">30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p style="text-align: justify;">31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p style="text-align: justify;">(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p style="text-align: justify;">33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p style="text-align: justify;">34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p style="text-align: justify;">35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p style="text-align: justify;">36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p style="text-align: justify;">37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p style="text-align: justify;">38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p style="text-align: justify;">39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p style="text-align: justify;">40. ISSUE NO. 6</p><p style="text-align: justify;">This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p style="text-align: justify;">' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p style="text-align: justify;">It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p style="text-align: justify;">'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p style="text-align: justify;">Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p style="text-align: justify;">Kuruba Janangada Jagruta Vedike </p><p style="text-align: justify;">Nagamangala Taluk.' </p><p style="text-align: justify;">This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p style="text-align: justify;">41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p style="text-align: justify;">42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p style="text-align: justify;">'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p style="text-align: justify;">This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p style="text-align: justify;">43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p style="text-align: justify;">'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p style="text-align: justify;">PW-26 Srinivasaiah deposed, -</p><p style="text-align: justify;">'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p style="text-align: justify;">There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p style="text-align: justify;">44. ISSUE NOS. 7 & 8:</p><p style="text-align: justify;">Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p style="text-align: justify;">45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p style="text-align: justify;">46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p style="text-align: justify;">47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p style="text-align: justify;">48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p style="text-align: justify;">49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p style="text-align: justify;">50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p style="text-align: justify;">51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p style="text-align: justify;">52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p style="text-align: justify;">53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p style="text-align: justify;">54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p style="text-align: justify;">55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p style="text-align: justify;">56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p style="text-align: justify;">57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p style="text-align: justify;">58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p style="text-align: justify;">59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p style="text-align: justify;">60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p style="text-align: justify;">'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(2) The account shall contain such particulars, as may be prescribed.</p><p style="text-align: justify;">(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p style="text-align: justify;">(Explanations to this Section are not necessary to be referred to here)</p><p style="text-align: justify;">It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p style="text-align: justify;">'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p style="text-align: justify;">It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p style="text-align: justify;">61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p style="text-align: justify;">'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p style="text-align: justify;">Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p style="text-align: justify;">62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p style="text-align: justify;">'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p style="text-align: justify;">In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p style="text-align: justify;">63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p style="text-align: justify;">'100. Grounds for declaring election to be void :-</p><p style="text-align: justify;">(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p style="text-align: justify;">the High Court shall declare the election of the returned candidate to be void.'</p><p style="text-align: justify;">It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p style="text-align: justify;">64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p style="text-align: justify;">'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p style="text-align: justify;">One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p style="text-align: justify;">65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p style="text-align: justify;">'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p style="text-align: justify;">Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p style="text-align: justify;">'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p style="text-align: justify;">Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p style="text-align: justify;">66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p style="text-align: justify;">67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p style="text-align: justify;">68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p style="text-align: justify;">69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p style="text-align: justify;">70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p style="text-align: justify;">71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p style="text-align: justify;">' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p style="text-align: justify;">(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p style="text-align: justify;">(b) has no good reason or justification for the failure,</p><p style="text-align: justify;"> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p style="text-align: justify;">Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p style="text-align: justify;">72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p style="text-align: justify;">'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p style="text-align: justify;">(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(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,-</p><p style="text-align: justify;">(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p style="text-align: justify;">(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p style="text-align: justify;"> (3) For the purpose of this section,-</p><p style="text-align: justify;">(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p style="text-align: justify;">(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p style="text-align: justify;"> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p style="text-align: justify;">Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p style="text-align: justify;">73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p style="text-align: justify;">74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p style="text-align: justify;">'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p style="text-align: justify;">In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p style="text-align: justify;">' 86. Particulars of account of election expenses.-</p><p style="text-align: justify;">(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p style="text-align: justify;">(a) the date on which the expenditure was incurred or authorized;</p><p style="text-align: justify;">(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p style="text-align: justify;">(c) the amount of the expenditure-</p><p style="text-align: justify;"> (i) the amount paid;</p><p style="text-align: justify;"> (ii) the amount outstanding;</p><p style="text-align: justify;">(d) the date of payment;</p><p style="text-align: justify;">(e) the name and address of the payee;</p><p style="text-align: justify;">(f) the serial number of vouchers, in case of amount paid;</p><p style="text-align: justify;">(g) the serial number of bills, if any, in case of amount outstanding;</p><p style="text-align: justify;">(h) the name and address of the person to whom the amount outstanding is payable.</p><p style="text-align: justify;"> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p style="text-align: justify;">(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p style="text-align: justify;">(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p style="text-align: justify;">It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p style="text-align: justify;">75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p style="text-align: justify;">76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1992KAR444; 1991(3)KarLJ308',
			'ratiodecidendi' => '',
			'respondent' => 'L.R. Shivaramegowda',
			'sub' => 'Election',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 't-m-chandrasekhar-vs-l-r-shivaramegowda',
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		(int) 0 => '382398',
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$title_for_layout = 'T M Chandrasekhar Vs L R Shivaramegowda - Citation 382398 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382398',
		'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
		'appealno' => 'E.P. No. 15 of 1990',
		'appellant' => 'T.M. Chandrasekhar',
		'authreffered' => '',
		'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
		'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'B. Rudragowda, Adv.',
		'counseldef' => 'S. Pramila, Adv. for R-1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1991-09-27',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Hiremath, J.',
		'judgement' => 'ORDER<p>Hiremath, J.</p><p>1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p>2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p>3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p>4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a>Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p>(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p>(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p>(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p>(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p>(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p>(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p>(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p>Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p>As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p>(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p>(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p>5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p>6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p>7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p>8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p>9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p>10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p>11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p>12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p>13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p>14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p>15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p>16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p>17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p>(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p>(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p>(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p>(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p>(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p>(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p>(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p>(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p>My findings are:</p><p>(1) Issue No. 1: No. </p><p>(2) Issue No. 2: No. </p><p>(3) issue No. 3; No,</p><p>(4) Issue No. 4; No. </p><p>(5) Issue No. 5: No,</p><p>(6) Issue No. 6: No,</p><p>(7) Issue No. 7 : Yes.</p><p>(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p>and for the following:</p><p>REASONS</p><p>18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p>(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p>(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p>(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p>(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p>(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p>(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p>In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p>ISSUE No. 1:</p><p>19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p>20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p>21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p>ISSUE No. 2:</p><p>22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p>ISSUE No. 3:</p><p>23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p>ISSUE NO. 4:</p><p>24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p>'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p>Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p>Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p>ISSUE NO. 5:</p><p>25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p>'Yours faithfully </p><p>L.R.Shivaramegowda'</p><p>(Kannada) </p><p>At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p>(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p>(2) He would strive with the. Government for the all sided development of the taluk.</p><p>(3) He would make honest efforts towards securing employment to the unemployed.</p><p>(4) He would secure increased facilities from Banks to the economically backward.</p><p>(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p>(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p>(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p>(8) Would give priority for the protection of the minorities and Dalits.</p><p>Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p>26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p>27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p>28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p>29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p>30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p>31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p>(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p>33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p>34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p>35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p>36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p>37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p>38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p>39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p>40. ISSUE NO. 6</p><p>This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p>' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p>It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p>'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p>Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p>Kuruba Janangada Jagruta Vedike </p><p>Nagamangala Taluk.' </p><p>This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p>41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p>42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p>'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p>This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p>43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p>'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p>PW-26 Srinivasaiah deposed, -</p><p>'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p>There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p>44. ISSUE NOS. 7 & 8:</p><p>Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p>45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p>46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p>47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p>48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p>49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p>50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p>51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p>52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p>53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p>54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p>55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p>56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p>57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p>58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p>59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p>60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p>'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p>**** **** ****</p><p>(2) The account shall contain such particulars, as may be prescribed.</p><p>(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p>(Explanations to this Section are not necessary to be referred to here)</p><p>It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p>'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p>It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p>61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p>'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p>Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p>62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p>'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a>Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p>In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p>63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p>'100. Grounds for declaring election to be void :-</p><p>(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p>**** **** ****</p><p>(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p>**** **** ****</p><p>(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p>the High Court shall declare the election of the returned candidate to be void.'</p><p>It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p>64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p>'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p>One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p>65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p>'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p>Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p>'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p>Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p>66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p>67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p>68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p>69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p>70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p>71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p>' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p>(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p>(b) has no good reason or justification for the failure,</p><p> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p>Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p>72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p>'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p>(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p>(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</p><p>(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,-</p><p>(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p>(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p> (3) For the purpose of this section,-</p><p>(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p>(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p>Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p>73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p>74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p>'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p>In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p>' 86. Particulars of account of election expenses.-</p><p>(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p>(a) the date on which the expenditure was incurred or authorized;</p><p>(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p>(c) the amount of the expenditure-</p><p> (i) the amount paid;</p><p> (ii) the amount outstanding;</p><p>(d) the date of payment;</p><p>(e) the name and address of the payee;</p><p>(f) the serial number of vouchers, in case of amount paid;</p><p>(g) the serial number of bills, if any, in case of amount outstanding;</p><p>(h) the name and address of the person to whom the amount outstanding is payable.</p><p> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p>(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p>(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p>It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p>75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p>76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p></p><p>',
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representation of the people act, 1951 (central act no. 43 of 1951) - sections 77 (1) to (3), 100, 123 & 127a : conduct of election rules, 1961 - part viii : rules 86 & 90 - conspectus of provisions: object & duty of court -maintenance of accounts of expenditure not drab formality, but vital fabric of election process - burden of proof of pamphlets promoting candidate not same as of offending pamphlets - inference against person not producing support for his version - consent 'crux' of promoting publication; consent implied or inferred from acts and conduct, facts & circumstances non-furnishing of true and proper accounts distinct breach of sub-sections (1) & (2) of section 77 attracting section 100 - tribunal not to ignore dishonest conduct and wilful suppression of.....

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	'title_for_layout' => 'T M Chandrasekhar Vs L R Shivaramegowda - Citation 382398 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '382398',
			'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
			'appealno' => 'E.P. No. 15 of 1990',
			'appellant' => 'T.M. Chandrasekhar',
			'authreffered' => '',
			'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
			'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'B. Rudragowda, Adv.',
			'counseldef' => 'S. Pramila, Adv. for R-1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1991-09-27',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Hiremath, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Hiremath, J.</p><p style="text-align: justify;">1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p style="text-align: justify;">2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p style="text-align: justify;">3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p style="text-align: justify;">4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p style="text-align: justify;">(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p style="text-align: justify;">(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p style="text-align: justify;">(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p style="text-align: justify;">(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p style="text-align: justify;">(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p style="text-align: justify;">(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p style="text-align: justify;">(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p style="text-align: justify;">Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p style="text-align: justify;">As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p style="text-align: justify;">(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p style="text-align: justify;">(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p style="text-align: justify;">6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p style="text-align: justify;">7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p style="text-align: justify;">8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p style="text-align: justify;">9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p style="text-align: justify;">10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p style="text-align: justify;">11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p style="text-align: justify;">12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p style="text-align: justify;">13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p style="text-align: justify;">14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p style="text-align: justify;">16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p style="text-align: justify;">17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p style="text-align: justify;">(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p style="text-align: justify;">(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p style="text-align: justify;">(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p style="text-align: justify;">(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p style="text-align: justify;">(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p style="text-align: justify;">(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p style="text-align: justify;">(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p style="text-align: justify;">(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p style="text-align: justify;">My findings are:</p><p style="text-align: justify;">(1) Issue No. 1: No. </p><p style="text-align: justify;">(2) Issue No. 2: No. </p><p style="text-align: justify;">(3) issue No. 3; No,</p><p style="text-align: justify;">(4) Issue No. 4; No. </p><p style="text-align: justify;">(5) Issue No. 5: No,</p><p style="text-align: justify;">(6) Issue No. 6: No,</p><p style="text-align: justify;">(7) Issue No. 7 : Yes.</p><p style="text-align: justify;">(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p style="text-align: justify;">and for the following:</p><p style="text-align: justify;">REASONS</p><p style="text-align: justify;">18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p style="text-align: justify;">(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p style="text-align: justify;">(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p style="text-align: justify;">(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p style="text-align: justify;">(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p style="text-align: justify;">(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p style="text-align: justify;">(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p style="text-align: justify;">In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p style="text-align: justify;">ISSUE No. 1:</p><p style="text-align: justify;">19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p style="text-align: justify;">20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p style="text-align: justify;">21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p style="text-align: justify;">ISSUE No. 2:</p><p style="text-align: justify;">22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p style="text-align: justify;">ISSUE No. 3:</p><p style="text-align: justify;">23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p style="text-align: justify;">ISSUE NO. 4:</p><p style="text-align: justify;">24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p style="text-align: justify;">'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p style="text-align: justify;">Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p style="text-align: justify;">Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p style="text-align: justify;">ISSUE NO. 5:</p><p style="text-align: justify;">25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p style="text-align: justify;">'Yours faithfully </p><p style="text-align: justify;">L.R.Shivaramegowda'</p><p style="text-align: justify;">(Kannada) </p><p style="text-align: justify;">At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p style="text-align: justify;">(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p style="text-align: justify;">(2) He would strive with the. Government for the all sided development of the taluk.</p><p style="text-align: justify;">(3) He would make honest efforts towards securing employment to the unemployed.</p><p style="text-align: justify;">(4) He would secure increased facilities from Banks to the economically backward.</p><p style="text-align: justify;">(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p style="text-align: justify;">(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p style="text-align: justify;">(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p style="text-align: justify;">(8) Would give priority for the protection of the minorities and Dalits.</p><p style="text-align: justify;">Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p style="text-align: justify;">26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p style="text-align: justify;">27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p style="text-align: justify;">28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p style="text-align: justify;">29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p style="text-align: justify;">30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p style="text-align: justify;">31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p style="text-align: justify;">(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p style="text-align: justify;">33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p style="text-align: justify;">34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p style="text-align: justify;">35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p style="text-align: justify;">36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p style="text-align: justify;">37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p style="text-align: justify;">38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p style="text-align: justify;">39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p style="text-align: justify;">40. ISSUE NO. 6</p><p style="text-align: justify;">This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p style="text-align: justify;">' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p style="text-align: justify;">It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p style="text-align: justify;">'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p style="text-align: justify;">Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p style="text-align: justify;">Kuruba Janangada Jagruta Vedike </p><p style="text-align: justify;">Nagamangala Taluk.' </p><p style="text-align: justify;">This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p style="text-align: justify;">41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p style="text-align: justify;">42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p style="text-align: justify;">'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p style="text-align: justify;">This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p style="text-align: justify;">43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p style="text-align: justify;">'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p style="text-align: justify;">PW-26 Srinivasaiah deposed, -</p><p style="text-align: justify;">'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p style="text-align: justify;">There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p style="text-align: justify;">44. ISSUE NOS. 7 & 8:</p><p style="text-align: justify;">Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p style="text-align: justify;">45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p style="text-align: justify;">46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p style="text-align: justify;">47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p style="text-align: justify;">48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p style="text-align: justify;">49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p style="text-align: justify;">50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p style="text-align: justify;">51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p style="text-align: justify;">52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p style="text-align: justify;">53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p style="text-align: justify;">54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p style="text-align: justify;">55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p style="text-align: justify;">56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p style="text-align: justify;">57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p style="text-align: justify;">58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p style="text-align: justify;">59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p style="text-align: justify;">60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p style="text-align: justify;">'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(2) The account shall contain such particulars, as may be prescribed.</p><p style="text-align: justify;">(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p style="text-align: justify;">(Explanations to this Section are not necessary to be referred to here)</p><p style="text-align: justify;">It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p style="text-align: justify;">'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p style="text-align: justify;">It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p style="text-align: justify;">61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p style="text-align: justify;">'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p style="text-align: justify;">Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p style="text-align: justify;">62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p style="text-align: justify;">'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p style="text-align: justify;">In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p style="text-align: justify;">63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p style="text-align: justify;">'100. Grounds for declaring election to be void :-</p><p style="text-align: justify;">(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p style="text-align: justify;">the High Court shall declare the election of the returned candidate to be void.'</p><p style="text-align: justify;">It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p style="text-align: justify;">64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p style="text-align: justify;">'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p style="text-align: justify;">One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p style="text-align: justify;">65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p style="text-align: justify;">'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p style="text-align: justify;">Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p style="text-align: justify;">'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p style="text-align: justify;">Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p style="text-align: justify;">66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p style="text-align: justify;">67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p style="text-align: justify;">68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p style="text-align: justify;">69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p style="text-align: justify;">70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p style="text-align: justify;">71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p style="text-align: justify;">' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p style="text-align: justify;">(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p style="text-align: justify;">(b) has no good reason or justification for the failure,</p><p style="text-align: justify;"> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p style="text-align: justify;">Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p style="text-align: justify;">72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p style="text-align: justify;">'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p style="text-align: justify;">(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(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,-</p><p style="text-align: justify;">(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p style="text-align: justify;">(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p style="text-align: justify;"> (3) For the purpose of this section,-</p><p style="text-align: justify;">(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p style="text-align: justify;">(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p style="text-align: justify;"> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p style="text-align: justify;">Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p style="text-align: justify;">73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p style="text-align: justify;">74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p style="text-align: justify;">'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p style="text-align: justify;">In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p style="text-align: justify;">' 86. Particulars of account of election expenses.-</p><p style="text-align: justify;">(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p style="text-align: justify;">(a) the date on which the expenditure was incurred or authorized;</p><p style="text-align: justify;">(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p style="text-align: justify;">(c) the amount of the expenditure-</p><p style="text-align: justify;"> (i) the amount paid;</p><p style="text-align: justify;"> (ii) the amount outstanding;</p><p style="text-align: justify;">(d) the date of payment;</p><p style="text-align: justify;">(e) the name and address of the payee;</p><p style="text-align: justify;">(f) the serial number of vouchers, in case of amount paid;</p><p style="text-align: justify;">(g) the serial number of bills, if any, in case of amount outstanding;</p><p style="text-align: justify;">(h) the name and address of the person to whom the amount outstanding is payable.</p><p style="text-align: justify;"> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p style="text-align: justify;">(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p style="text-align: justify;">(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p style="text-align: justify;">It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p style="text-align: justify;">75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p style="text-align: justify;">76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1992KAR444; 1991(3)KarLJ308',
			'ratiodecidendi' => '',
			'respondent' => 'L.R. Shivaramegowda',
			'sub' => 'Election',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 't-m-chandrasekhar-vs-l-r-shivaramegowda',
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		(int) 0 => '382398',
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$title_for_layout = 'T M Chandrasekhar Vs L R Shivaramegowda - Citation 382398 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382398',
		'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
		'appealno' => 'E.P. No. 15 of 1990',
		'appellant' => 'T.M. Chandrasekhar',
		'authreffered' => '',
		'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
		'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'B. Rudragowda, Adv.',
		'counseldef' => 'S. Pramila, Adv. for R-1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1991-09-27',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Hiremath, J.',
		'judgement' => 'ORDER<p>Hiremath, J.</p><p>1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p>2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p>3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p>4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a>Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p>(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p>(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p>(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p>(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p>(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p>(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p>(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p>Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p>As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p>(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p>(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p>5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p>6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p>7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p>8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p>9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p>10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p>11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p>12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p>13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p>14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p>15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p>16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p>17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p>(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p>(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p>(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p>(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p>(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p>(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p>(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p>(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p>My findings are:</p><p>(1) Issue No. 1: No. </p><p>(2) Issue No. 2: No. </p><p>(3) issue No. 3; No,</p><p>(4) Issue No. 4; No. </p><p>(5) Issue No. 5: No,</p><p>(6) Issue No. 6: No,</p><p>(7) Issue No. 7 : Yes.</p><p>(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p>and for the following:</p><p>REASONS</p><p>18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p>(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p>(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p>(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p>(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p>(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p>(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p>In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p>ISSUE No. 1:</p><p>19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p>20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p>21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p>ISSUE No. 2:</p><p>22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p>ISSUE No. 3:</p><p>23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p>ISSUE NO. 4:</p><p>24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p>'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p>Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p>Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p>ISSUE NO. 5:</p><p>25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p>'Yours faithfully </p><p>L.R.Shivaramegowda'</p><p>(Kannada) </p><p>At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p>(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p>(2) He would strive with the. Government for the all sided development of the taluk.</p><p>(3) He would make honest efforts towards securing employment to the unemployed.</p><p>(4) He would secure increased facilities from Banks to the economically backward.</p><p>(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p>(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p>(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p>(8) Would give priority for the protection of the minorities and Dalits.</p><p>Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p>26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p>27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p>28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p>29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p>30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p>31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p>(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p>33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p>34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p>35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p>36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p>37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p>38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p>39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p>40. ISSUE NO. 6</p><p>This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p>' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p>It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p>'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p>Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p>Kuruba Janangada Jagruta Vedike </p><p>Nagamangala Taluk.' </p><p>This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p>41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p>42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p>'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p>This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p>43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p>'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p>PW-26 Srinivasaiah deposed, -</p><p>'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p>There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p>44. ISSUE NOS. 7 & 8:</p><p>Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p>45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p>46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p>47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p>48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p>49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p>50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p>51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p>52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p>53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p>54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p>55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p>56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p>57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p>58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p>59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p>60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p>'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p>**** **** ****</p><p>(2) The account shall contain such particulars, as may be prescribed.</p><p>(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p>(Explanations to this Section are not necessary to be referred to here)</p><p>It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p>'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p>It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p>61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p>'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p>Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p>62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p>'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a>Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p>In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p>63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p>'100. Grounds for declaring election to be void :-</p><p>(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p>**** **** ****</p><p>(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p>**** **** ****</p><p>(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p>the High Court shall declare the election of the returned candidate to be void.'</p><p>It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p>64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p>'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p>One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p>65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p>'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p>Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p>'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p>Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p>66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p>67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p>68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p>69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p>70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p>71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p>' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p>(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p>(b) has no good reason or justification for the failure,</p><p> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p>Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p>72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p>'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p>(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p>(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</p><p>(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,-</p><p>(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p>(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p> (3) For the purpose of this section,-</p><p>(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p>(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p>Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p>73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p>74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p>'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p>In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p>' 86. Particulars of account of election expenses.-</p><p>(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p>(a) the date on which the expenditure was incurred or authorized;</p><p>(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p>(c) the amount of the expenditure-</p><p> (i) the amount paid;</p><p> (ii) the amount outstanding;</p><p>(d) the date of payment;</p><p>(e) the name and address of the payee;</p><p>(f) the serial number of vouchers, in case of amount paid;</p><p>(g) the serial number of bills, if any, in case of amount outstanding;</p><p>(h) the name and address of the person to whom the amount outstanding is payable.</p><p> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p>(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p>(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p>It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p>75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p>76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p></p><p>',
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			'id' => '382398',
			'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
			'appealno' => 'E.P. No. 15 of 1990',
			'appellant' => 'T.M. Chandrasekhar',
			'authreffered' => '',
			'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
			'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'B. Rudragowda, Adv.',
			'counseldef' => 'S. Pramila, Adv. for R-1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1991-09-27',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Hiremath, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Hiremath, J.</p><p style="text-align: justify;">1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p style="text-align: justify;">2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p style="text-align: justify;">3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p style="text-align: justify;">4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p style="text-align: justify;">(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p style="text-align: justify;">(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p style="text-align: justify;">(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p style="text-align: justify;">(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p style="text-align: justify;">(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p style="text-align: justify;">(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p style="text-align: justify;">(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p style="text-align: justify;">Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p style="text-align: justify;">As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p style="text-align: justify;">(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p style="text-align: justify;">(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p style="text-align: justify;">6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p style="text-align: justify;">7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p style="text-align: justify;">8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p style="text-align: justify;">9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p style="text-align: justify;">10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p style="text-align: justify;">11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p style="text-align: justify;">12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p style="text-align: justify;">13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p style="text-align: justify;">14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p style="text-align: justify;">15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p style="text-align: justify;">16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p style="text-align: justify;">17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p style="text-align: justify;">(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p style="text-align: justify;">(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p style="text-align: justify;">(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p style="text-align: justify;">(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p style="text-align: justify;">(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p style="text-align: justify;">(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p style="text-align: justify;">(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p style="text-align: justify;">(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p style="text-align: justify;">My findings are:</p><p style="text-align: justify;">(1) Issue No. 1: No. </p><p style="text-align: justify;">(2) Issue No. 2: No. </p><p style="text-align: justify;">(3) issue No. 3; No,</p><p style="text-align: justify;">(4) Issue No. 4; No. </p><p style="text-align: justify;">(5) Issue No. 5: No,</p><p style="text-align: justify;">(6) Issue No. 6: No,</p><p style="text-align: justify;">(7) Issue No. 7 : Yes.</p><p style="text-align: justify;">(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p style="text-align: justify;">and for the following:</p><p style="text-align: justify;">REASONS</p><p style="text-align: justify;">18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p style="text-align: justify;">(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p style="text-align: justify;">(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p style="text-align: justify;">(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p style="text-align: justify;">(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p style="text-align: justify;">(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p style="text-align: justify;">(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p style="text-align: justify;">In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p style="text-align: justify;">ISSUE No. 1:</p><p style="text-align: justify;">19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p style="text-align: justify;">20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p style="text-align: justify;">21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p style="text-align: justify;">ISSUE No. 2:</p><p style="text-align: justify;">22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p style="text-align: justify;">ISSUE No. 3:</p><p style="text-align: justify;">23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p style="text-align: justify;">ISSUE NO. 4:</p><p style="text-align: justify;">24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p style="text-align: justify;">'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p style="text-align: justify;">Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p style="text-align: justify;">Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p style="text-align: justify;">ISSUE NO. 5:</p><p style="text-align: justify;">25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p style="text-align: justify;">'Yours faithfully </p><p style="text-align: justify;">L.R.Shivaramegowda'</p><p style="text-align: justify;">(Kannada) </p><p style="text-align: justify;">At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p style="text-align: justify;">(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p style="text-align: justify;">(2) He would strive with the. Government for the all sided development of the taluk.</p><p style="text-align: justify;">(3) He would make honest efforts towards securing employment to the unemployed.</p><p style="text-align: justify;">(4) He would secure increased facilities from Banks to the economically backward.</p><p style="text-align: justify;">(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p style="text-align: justify;">(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p style="text-align: justify;">(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p style="text-align: justify;">(8) Would give priority for the protection of the minorities and Dalits.</p><p style="text-align: justify;">Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p style="text-align: justify;">26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p style="text-align: justify;">27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p style="text-align: justify;">28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p style="text-align: justify;">29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p style="text-align: justify;">30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p style="text-align: justify;">31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p style="text-align: justify;">(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p style="text-align: justify;">33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p style="text-align: justify;">34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p style="text-align: justify;">35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p style="text-align: justify;">36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p style="text-align: justify;">37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p style="text-align: justify;">38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p style="text-align: justify;">39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p style="text-align: justify;">40. ISSUE NO. 6</p><p style="text-align: justify;">This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p style="text-align: justify;">' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p style="text-align: justify;">It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p style="text-align: justify;">'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p style="text-align: justify;">Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p style="text-align: justify;">Kuruba Janangada Jagruta Vedike </p><p style="text-align: justify;">Nagamangala Taluk.' </p><p style="text-align: justify;">This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p style="text-align: justify;">41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p style="text-align: justify;">42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p style="text-align: justify;">'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p style="text-align: justify;">This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p style="text-align: justify;">43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p style="text-align: justify;">'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p style="text-align: justify;">PW-26 Srinivasaiah deposed, -</p><p style="text-align: justify;">'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p style="text-align: justify;">There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p style="text-align: justify;">44. ISSUE NOS. 7 & 8:</p><p style="text-align: justify;">Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p style="text-align: justify;">45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p style="text-align: justify;">46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p style="text-align: justify;">47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p style="text-align: justify;">48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p style="text-align: justify;">49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p style="text-align: justify;">50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p style="text-align: justify;">51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p style="text-align: justify;">52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p style="text-align: justify;">53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p style="text-align: justify;">54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p style="text-align: justify;">55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p style="text-align: justify;">56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p style="text-align: justify;">57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p style="text-align: justify;">58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p style="text-align: justify;">59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p style="text-align: justify;">60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p style="text-align: justify;">'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(2) The account shall contain such particulars, as may be prescribed.</p><p style="text-align: justify;">(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p style="text-align: justify;">(Explanations to this Section are not necessary to be referred to here)</p><p style="text-align: justify;">It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p style="text-align: justify;">'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p style="text-align: justify;">It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p style="text-align: justify;">61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p style="text-align: justify;">'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p style="text-align: justify;">Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p style="text-align: justify;">62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p style="text-align: justify;">'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p style="text-align: justify;">In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p style="text-align: justify;">63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p style="text-align: justify;">'100. Grounds for declaring election to be void :-</p><p style="text-align: justify;">(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p style="text-align: justify;">**** **** ****</p><p style="text-align: justify;">(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p style="text-align: justify;">the High Court shall declare the election of the returned candidate to be void.'</p><p style="text-align: justify;">It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p style="text-align: justify;">64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p style="text-align: justify;">'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p style="text-align: justify;">One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p style="text-align: justify;">65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p style="text-align: justify;">'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p style="text-align: justify;">Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p style="text-align: justify;">'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p style="text-align: justify;">Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p style="text-align: justify;">66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p style="text-align: justify;">67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p style="text-align: justify;">68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p style="text-align: justify;">69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p style="text-align: justify;">70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p style="text-align: justify;">71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p style="text-align: justify;">' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p style="text-align: justify;">(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p style="text-align: justify;">(b) has no good reason or justification for the failure,</p><p style="text-align: justify;"> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p style="text-align: justify;">Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p style="text-align: justify;">72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p style="text-align: justify;">'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p style="text-align: justify;">(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p style="text-align: justify;">(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</p><p style="text-align: justify;">(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,-</p><p style="text-align: justify;">(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p style="text-align: justify;">(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p style="text-align: justify;"> (3) For the purpose of this section,-</p><p style="text-align: justify;">(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p style="text-align: justify;">(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p style="text-align: justify;"> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p style="text-align: justify;">Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p style="text-align: justify;">73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p style="text-align: justify;">74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p style="text-align: justify;">'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p style="text-align: justify;">In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p style="text-align: justify;">' 86. Particulars of account of election expenses.-</p><p style="text-align: justify;">(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p style="text-align: justify;">(a) the date on which the expenditure was incurred or authorized;</p><p style="text-align: justify;">(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p style="text-align: justify;">(c) the amount of the expenditure-</p><p style="text-align: justify;"> (i) the amount paid;</p><p style="text-align: justify;"> (ii) the amount outstanding;</p><p style="text-align: justify;">(d) the date of payment;</p><p style="text-align: justify;">(e) the name and address of the payee;</p><p style="text-align: justify;">(f) the serial number of vouchers, in case of amount paid;</p><p style="text-align: justify;">(g) the serial number of bills, if any, in case of amount outstanding;</p><p style="text-align: justify;">(h) the name and address of the person to whom the amount outstanding is payable.</p><p style="text-align: justify;"> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p style="text-align: justify;">(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p style="text-align: justify;">(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p style="text-align: justify;">It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p style="text-align: justify;">75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p style="text-align: justify;">76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1992KAR444; 1991(3)KarLJ308',
			'ratiodecidendi' => '',
			'respondent' => 'L.R. Shivaramegowda',
			'sub' => 'Election',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 't-m-chandrasekhar-vs-l-r-shivaramegowda',
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		(int) 0 => '382398',
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$title_for_layout = 'T M Chandrasekhar Vs L R Shivaramegowda - Citation 382398 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382398',
		'acts' => '<a href="/act/50684/representation-of-the-people-act-1951-complete-act">Representation of the People Act, 1951</a> - Sections 8A, 10A, 77, 77 (1) to 77(3), 100, 123, 123(6), 127A and 127A(3); Conduct of Election Rules, 1961 - Rules 86 and 90',
		'appealno' => 'E.P. No. 15 of 1990',
		'appellant' => 'T.M. Chandrasekhar',
		'authreffered' => '',
		'casename' => 'T.M. Chandrasekhar Vs. L.R. Shivaramegowda',
		'casenote' => 'REPRESENTATION OF THE PEOPLE ACT, 1951 (Central Act No. 43 of 1951) - Sections 77 (1) to (3), 100, 123 &amp; 127A : CONDUCT OF ELECTION RULES, 1961 - Part VIII : Rules 86 &amp; 90 - Conspectus of provisions: object &amp; duty of Court -Maintenance of accounts of expenditure not drab formality, but vital fabric of election process - Burden of proof of pamphlets promoting candidate not same as of offending pamphlets - Inference against person not producing support for his version - Consent 'Crux' of promoting publication; consent implied or inferred from acts and conduct, facts &amp; circumstances Non-furnishing of true and proper accounts distinct breach of Sub-sections (1) &amp; (2) of Section 77 attracting Section 100 - Tribunal not to Ignore dishonest conduct and wilful suppression of expenditure to come within prescribed limit - Incurring of expenditure not accounted for amounts to corrupt practice - Mere irregularity In maintenance of accounts distinct from willful suppression of expenditure: hence non-compliance with Section 77, corrupt practice with consequence of Section 100 ensuing.;(i) The predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the backbone of democracy ... The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray ... It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of voters in the election process. Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Sections 77 (1) &amp; (2) and 100 of the Act.;(ii) The election of a returned candidate could be declared void under Section 100 (i)(b) of the Act if any corrupt practice has been Committeed or his election agent or by any other person with his consent or his election agent or by his non-compliance with provisions of the Act or any Rules made under the Act, Part VIII of the Conduct of Election Rules, 1961, relates to election expenses. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union Territory shall not exceed the limit prescribed for the States mentioned in Column I of the Table to these Rules.... There is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election. It is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they face an Election Petition.;(iii) Under Sub-section (1) of Section 77, every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3) ....Whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration.;(iv) While the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of the returned candidate. Depending solely on the burden of proof the returned candidate cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed... Inference can be drawn against a person who does not call the evidence which should be available in support of his version... what is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher.... The crux is to be found in the word 'consent'. If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if himself Committeed the act. To prove consent direct evidence is not always necessarily. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.;(v) Disqualification on the ground of corrupt practice proved under Section 123 (6) could be under Section 8A. Disqualification for failure to lodge account of election expenses could be under Section 10A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act. When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) &amp; (2) and Section 100 intends to embrace non-compliance with the provisions of the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-compliance with Sub-sections (1) and (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. If the argument that non-compliance with Sub-sections (1) and (2) are not attracted by Section 100 is accepted, then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3) ... Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. Simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true account It does not necessarily follow that the Election Tribunal Is not called upon to consider if the election could be voided for that reason under Section 100 of the Act. What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore, non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequences under Section 100 of the Act.;(vi) Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate ... The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature cannot be the same ... The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidate in election to maintain and safeguard Its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit. It is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate.;(vii) Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86. When Section 123(6) states that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77, it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practice...Where the returned candidate has not only not accounted for what he has spent towards printing of pamphlets, postage etc., but has totally denied to have even got printed the pamphlets, badges and advertisements, thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit... Mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. Therefore, there is no compliance with provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.... Maintenance of accounts of expenditure incurred or authorized should not be made a mockery or a drab formality but a vital fabric of the Election process. That indeed is the spirit behind Section 77 (1) and (2) and 100 of the Act. - KARNATAKA LAND REVENUE ACT, 1964.[K.A. No. 12/1964]. Section 79-A: [B.Sreenivasa Gowda, J] Prohibition for acquisition of land by certain persons - Reporting of illegal transactions by the officer concerned - Order for resumption of petitioners lands in favour of the Government Confirmed by the Appellate Tribunal - Held, If a person or a family or a joint family acquires an agricultural land in contravention of the provisions of Section 79-A of the Act, every Village Officer and every officer of the Revenue, Registration and Land Records Departments shall report the same to the prescribed authority as required under Section 82 of the Act. On such report of the matter, the prescribed authority shall after summary enquiry determine whether the transaction reported to/him under Section 82 or coming to/its notice in any other manner is in contravention or is unlawful or invalid and make a declaration accordingly. Any transactions so declared to be in contravention of the provisions of this Act be forfeited to and vest in the State Government. Further, According to Section 79-A(2)(ii), acquisition of agricultural land by a person or a family or a joint family having an average annual income of not less than Rs.2,00,000/- from sources other than agricultural land on any day during the period of five consecutive years preceding the day of acquisition amounts to acquisition of land in contravention of the provisions of Section 79-A of the Act. What is required to be considered by the authority in deciding as to whether acquisition of an agricultural land by a person or family or joint family having income of not less than Rs.2,00,000/- from the sources other than agricultural land during five consecutive years immediately prior to the acquisition of land. The Assistant Commissioner as well as Karnataka Appellate Tribunal have not considered the matter in the light of the provisions of Sections 79-A, 79-B, 80, 82 and 83 of the Act. Impugned order was set aside and matter remitted for fresh consideration. -  Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. 3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. (c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders. 6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. 7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. Puttegowda as well. He has the enviable record of good services done which paid him rich dividends in this election. The people no doubt think well of late Sri T. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. THAKUR MUNESHWAR NATH SINGH, [1985]1SCR1089 .(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. It is now on record that he contested on the symbol of 'Rising Sun'.He admitted that he put forth his best efforts to secure the Party Ticket but in vain. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. Even if pamphlets like Exs. P-35 is almost like an election manifesto. Though PW-18 speaks about the voters showing him pamphlets like Exs. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. (1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H. P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. 30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs. 31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex. P-35 to P-37 & P-39 and also got prepared badges like Ex. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Similarly he did not complain about Exs. P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. He runs a book-shop at Devalapura wherein he sells stationery articles as well. It was denied that because he was responsible for such pamphlets like Ex. He gives his own reasons as to why various witnesses like P. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex. P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. In the historic election being held on Friday 24-11-1989 the great leader of our community -a youth leader -the champion of poor Sriyuth T. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex. Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex. By his side was a printed pamphlet like Ex. In the cross-examination he stated that he lifted one pamphlet like Ex. does not speak about a large number of pamphlets like Ex. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made: P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex. P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. by Kuruba Janangada Jagruta Vedike like Ex. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex. P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress. That was like Ex. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. He has failed to prove that it was R-1 who did it. 46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. Vehicles used for bringing people for this function as well find place in this report. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. Therefore according to him for all practical purposes he is as good as a Congress (I) member. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex. SULTAN, [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex. P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. P-39 as well. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them. To interpret in that manner is to run counter to well established canons of interpretations. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'.Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: There is a strong presumption in favour of the correctness of such seals. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex. P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it. , well after the results of the election were declared. P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Disqualification for failure to lodge account of election expenses -If the Election Commission is satisfied that a person -(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. ' Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex. P-38, posters like Ex. P-45, model ballot papers like Exs. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'B. Rudragowda, Adv.',
		'counseldef' => 'S. Pramila, Adv. for R-1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1991-09-27',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Hiremath, J.',
		'judgement' => 'ORDER<p>Hiremath, J.</p><p>1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).</p><p>2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.</p><p>3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.</p><p>4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the <a>Representation of the People Act, 1951</a> ('the Act' for short hereafter) during this election. They are as follows:</p><p>(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.</p><p>(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.</p><p>(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.</p><p>(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.</p><p>(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.</p><p>(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.</p><p>(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.</p><p>Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,</p><p>As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.</p><p>(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).</p><p>(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.</p><p>5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.</p><p>6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.</p><p>7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.</p><p>8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.</p><p>9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.</p><p>10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.</p><p>11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.</p><p>12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.</p><p>13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.</p><p>14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.</p><p>15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.</p><p>16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.</p><p>17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-</p><p>(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?</p><p>(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?</p><p>(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?</p><p>(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?</p><p>(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?</p><p>(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?</p><p>(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?</p><p>(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?</p><p>My findings are:</p><p>(1) Issue No. 1: No. </p><p>(2) Issue No. 2: No. </p><p>(3) issue No. 3; No,</p><p>(4) Issue No. 4; No. </p><p>(5) Issue No. 5: No,</p><p>(6) Issue No. 6: No,</p><p>(7) Issue No. 7 : Yes.</p><p>(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.</p><p>and for the following:</p><p>REASONS</p><p>18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :</p><p>(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .</p><p>(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).</p><p>(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .</p><p>(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .</p><p>(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .</p><p>(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).</p><p>In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.</p><p>ISSUE No. 1:</p><p>19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.</p><p>20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.</p><p>21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.</p><p>ISSUE No. 2:</p><p>22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.</p><p>ISSUE No. 3:</p><p>23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.</p><p>ISSUE NO. 4:</p><p>24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:</p><p>'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:</p><p>Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'</p><p>Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.</p><p>ISSUE NO. 5:</p><p>25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:</p><p>'Yours faithfully </p><p>L.R.Shivaramegowda'</p><p>(Kannada) </p><p>At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:</p><p>(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.</p><p>(2) He would strive with the. Government for the all sided development of the taluk.</p><p>(3) He would make honest efforts towards securing employment to the unemployed.</p><p>(4) He would secure increased facilities from Banks to the economically backward.</p><p>(5) Would give first preference for establishing industries in Nagmangala taluk.</p><p>(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.</p><p>(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.</p><p>(8) Would give priority for the protection of the minorities and Dalits.</p><p>Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.</p><p>26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.</p><p>27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.</p><p>28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.</p><p>29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.</p><p>30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.</p><p>31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.</p><p>(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.</p><p>33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.</p><p>34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).</p><p>35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.</p><p>36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.</p><p>37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.</p><p>38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country. </p><p>39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.</p><p>40. ISSUE NO. 6</p><p>This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:</p><p>' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'</p><p>It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -</p><p>'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.</p><p>Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.</p><p>Kuruba Janangada Jagruta Vedike </p><p>Nagamangala Taluk.' </p><p>This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.</p><p>41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.</p><p>42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:</p><p>'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'</p><p>This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.</p><p>43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:</p><p>'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'</p><p>PW-26 Srinivasaiah deposed, -</p><p>'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'</p><p>There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.</p><p>44. ISSUE NOS. 7 & 8:</p><p>Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.</p><p>45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.</p><p>46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.</p><p>47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.</p><p>48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.</p><p>49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.</p><p>50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.</p><p>51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.</p><p>52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,</p><p>53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.</p><p>54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.</p><p>55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.</p><p>56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.</p><p>57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.</p><p>58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.</p><p>59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.</p><p>60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;</p><p>'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.</p><p>**** **** ****</p><p>(2) The account shall contain such particulars, as may be prescribed.</p><p>(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'</p><p>(Explanations to this Section are not necessary to be referred to here)</p><p>It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:</p><p>'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'</p><p>It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.</p><p>61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:</p><p>'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'</p><p>Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.</p><p>62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-</p><p>'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the <a>Representation of the People Act, 1951</a>, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'</p><p>In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,</p><p>63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;</p><p>'100. Grounds for declaring election to be void :-</p><p>(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion</p><p>**** **** ****</p><p>(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-</p><p>**** **** ****</p><p>(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,</p><p>the High Court shall declare the election of the returned candidate to be void.'</p><p>It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.</p><p>64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:</p><p>'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'</p><p>One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.</p><p>65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:</p><p>'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.</p><p>Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:</p><p>'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'</p><p>Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.</p><p>66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.</p><p>67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.</p><p>68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.</p><p>69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.</p><p>70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.</p><p>71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:</p><p>' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -</p><p>(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and</p><p>(b) has no good reason or justification for the failure,</p><p> the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'</p><p>Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.</p><p>72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:</p><p>'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.</p><p>(2) No person shall print or cause to be printed any election pamphlet or poster-</p><p>(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</p><p>(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,-</p><p>(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and</p><p>(ii) in any other case, to the district magistrate of the district in which it is printed.</p><p> (3) For the purpose of this section,-</p><p>(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and</p><p>(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.</p><p> (4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'</p><p>Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.</p><p>73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.</p><p>74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:</p><p>'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'</p><p>In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:</p><p>' 86. Particulars of account of election expenses.-</p><p>(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-</p><p>(a) the date on which the expenditure was incurred or authorized;</p><p>(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);</p><p>(c) the amount of the expenditure-</p><p> (i) the amount paid;</p><p> (ii) the amount outstanding;</p><p>(d) the date of payment;</p><p>(e) the name and address of the payee;</p><p>(f) the serial number of vouchers, in case of amount paid;</p><p>(g) the serial number of bills, if any, in case of amount outstanding;</p><p>(h) the name and address of the person to whom the amount outstanding is payable.</p><p> (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.</p><p>(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).</p><p>(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'</p><p>It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.</p><p>75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.</p><p>76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.<p></p><p>',
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orderhiremath, j.1. the petitioner in this election petition is the son of sri t.mariappa a freedom fighter, an ardent and zealous congressman and also one time home minister of the erstwhile government of mysore before reorganisation of states between 1947 and 1952. he hailed from beereswarapura in nagamangala taluk and a very popular political leader. even after reorganisation of states he contested from nagamangala constituency in the general elections of 1957, succeeded and was the finance minister in the mysore state government till 1962. in the later elections he did not contest due to ill-health and passed away in the year 1964. perhaps the petitioner did not think of entering into politics during the life time of his father. he however joined the congress party in the year 1967......

Judgment:
ORDER

Hiremath, J.

1. The petitioner in this Election Petition is the son of Sri T.Mariappa a freedom fighter, an ardent and zealous Congressman and also one time Home Minister of the erstwhile Government of Mysore before reorganisation of States between 1947 and 1952. He hailed from Beereswarapura in Nagamangala Taluk and a very popular political leader. Even after reorganisation of States he contested from Nagamangala constituency in the General Elections of 1957, succeeded and was the Finance Minister in the Mysore State Government till 1962. In the later elections he did not contest due to ill-health and passed away in the year 1964. Perhaps the petitioner did not think of entering into politics during the life time of his father. He however joined the Congress Party in the year 1967. He is a graduate in Engineering and took his education at Bangalore throughout. It appears he has been faithful to the Party ever since he joined it. For the first time he sought ticket in the year 1978 to contest the General Election in that year as a Congress party candidate. One H.T. Krishnappa was also a Congress candidate but the petitioner continued in the fray and canvassed for H.T. Krishnappa . The reason was that there was not enough time for him to withdraw from the contest. It may be stated here that he belongs to Kuruba community as this caste-tag has assumed considerable importance in the General Elections of the year 1989 to the Karnataka State Legislature from Nagamangala Assembly Constituency. What the parties call 'B' Form is issued in favour of an official Party candidate. Though Narasegowda was the Taluk Congress Committee President, V.N. Gowda, M.T. Nanjundappa and the 1st respondent as well as Srikantegowda had sought for Congress Party ticket and it was the petitioner who was given the 'B' Form and hence an official Party candidate. When he was issued 'B' Form rest of the candidates withdrew their nominations excepting the 1st respondent (R-1).

2. R-1 calls himself an industrialist since the days of his father. He hails from Lalankere in Nagamangala Taluk. His father was the Chairman of Sri Ramachandra Fibre & Curling Industry Private Limited which was established about 25 years ago and they were manufacturing curling rope and fibre from coconut husk. Even during the life time of his father R-1's participation in the industry was encouraged and he was its Managing Director. It is a Private Limited Company and after the death of his father R-1 himself became Chairman as well as the Managing Director. In 1980 he founded another factory under the name Srirama Coir Mechanised Defibring Factory, another concern under the name Srirama Coir Industry in partnership and he became its Managing Director. He also owns a Saw Mill at Bindiganavile about 10 Kms. from his village. He claims that nearly 800 workers have been employed in these undertakings and nearly 200 persons in the same constituency are their agents to purchase coconut husk for use in their factories. Though it appears his father did not contest in any of the General Elections he had considerable clout in the taluk and district politics. He was Taluk Board Member for six years, was Director of Taluk Agricultural Co-operative Marketing Committee for eight years, member of Primary Land Development Bank, Director of the District Co-operative Union, Director of District Central Co-operative Bank and also took active part in freedom movement. R-1 is a graduate in Arts (B.A.,) and excepting for one year he took his entire education in Nagamangala taluk. Even as a student leader he participated actively in College Unions. In public life he tasted the first success when he was elected member of the Taluk Agricultural Produce Marketing Committeed (TAPMC). He entered politics for the first time in the year 1980 and became the Taluk Congress Youth Committee member. Till 1989 he was an active member and office bearer in the State Youth Congress Committee. He is one of the trustees of the Trust established by the Adichunchanagiri Swamiji for the educational institutions. In 1987 he was elected to the Mandya District Zilla Parishad as a member. He continued to be so till 1989 General Elections. Even in the matter of selecting candidates to contest on behalf of the Congress Party for local authorities he had weighty voice. He was also an ardent and faithful member and worker of the Congress Party.

3. When the General Elections in question were announced in the year 1989 the District Congress Committee recommended his name to the State Congress High Command for his candidature from the Congress Party. 31.10.89 was the last date fixed for filing nominations. Even though the State High Command had also recommended his name to the Central High Command of the Congress Party at Delhi the Congress High Command, as usual, did not announce the list of its candidates in the State till the last date for filing nominations. Thus it was uncertain on whom exactly the High Command's favour might fall. Therefore he filed his nomination on 31.10.1989 as a Congress candidate. Likewise the petitioner had also filed his nomination along with others referred to above. 4.11.1989 was the last date for withdrawal of the nominations. R-1 is a Vokkaliga by caste. When the petitioner was declared by the High Command as the official candidate to contest the elections as the official Congress Party candidate R-1 felt that his legitimate claim was overlooked by the Party and continued in the fray as an independent candidate. R-2 was the Janata Party Candidate though he did not seriously contest. Voting took place on 24.11.1989. In addition to the petitioner and R-1 twelve other persons were in the field. In the result that were declared on 26.11.1989, R-1 was declared elected securing 48,654 votes. Next highest number of votes of 17,185 were polled by the petitioner (vide Ex. R-11). There were 14 candidates who were in the contest and H.T. Krishnappa the Janata Dal candidate polled third securing 13,576 votes. R-2 Puttegowda secured 4,214 votes and the others never crossed three digits. It is this election of R-1 that is now in challenge in this Election Petition.

4. Various corrupt practices, irregularities and illegal activities are alleged against R-1 and his election agents under Sub-sections (1) (A)(a), (3), (3A), (4) and (6) of Section 123 of the Representation of the People Act, 1951 ('the Act' for short hereafter) during this election. They are as follows:

(a) The Nagamangala Assembly Constituency during that election had 1,17,135 voters out of whom 58,000 were from Vokkaliga community, about 20,000 from Scheduled Caste, about 10,000 from Muslim community and about 12,000 from Kuruba Community. The remaining voters were from backward, Ganiga, Idiga or Besta castes but not in considerable numbers. The petitioner claims that at the beginning of the electioneering the wave was very much favourable to him as a Congress (I) candidate in his constituency as it was in other constituencies of the State due to failure of the Government formed by the Janata Dal giving efficient administration, in fight within the Janata Dal and split in the Janata Party, The instability in the administration had created aversion in the mind of the people of Karnataka towards other Parties. There was sufficient good-will in his favour on account of his late father's and his own popularity in the State. The 2nd respondent had supported the candidature of R-1 who had set him up to divide the votes of minor communities people. His participation substantially damaged the prospects of the petitioner. This by itself is a corrupt practice falling under Sub-section (1)(a) of Section 123 of the Act. It was one Rudregowda of Bindiganavile who had proposed the nomination of R- 2 and L.R. Basavegowda the elder brother of R-1 was the counting agent for R-2.

(b) R-1 induced Ramalingegowda a member of the Mandal Panchayat and a Congress worker to withdraw his support to the petitioner promising him ticket to contest the Zilla Parishad bye-election as a Congress (I) candidate when it fell vacant on account of the resignation of R-1 after he would be declared elected. The very Ramalingegowda had proposed the petitioner's name in .his nomination paper but he changed his stand due to inducement of casteism by R-1. Later R-1 appointed him as one of his counting agents.

(c) R-1 got pamphlets printed on three color paper resembling national flag representing to the world as though it was published by a body called Nanjundaswamy Mattu Mitraru of Devalapura and these pamphlets contained what he calls Pratigne of R-1 giving false assurances and promises like providing of bus facilities to every village, getting more and more loans from Banks to economically weaker section of the society etc. This Pratigne weighed heavily on the minds of gullible voters as R-1 promised more and more loan facilities from Banks and bus facilities. Nanjundaswamy is a sincere Congress (I) worker and told the petitioner that he had never lent his name for such publication. Thus fraud was committed on Nanjundaswamy with the sole purpose of confusing voters. R-1 also declared himself in such pamphlets that he continued as a Congress candidate.

(d) Another pamphlet purported to have been published by L.R. Shivaramegowda Abhimanigala Samiti at Nagamangala carried certain facts which were totally false. Such pamphlets were printed and published by R-1 himself deliberately to woo the voters. In fact there was no such Samiti at Nagamangala and facts printed in these pamphlets cannot be known by any other person. They made mention of the name of Sri Janardhan Poojary, the then Minister of State for Finance, Government of India and urged that he had conducted Sala Mela through which alone 8,500 persons were to get loan. The function in which the said Sri Poojary had participated was a part of the Government programme. So also Sri Bhajanlal the then Central Minister for Agriculture was brought by him to distribute Rs. 1000/- each to 3000 families of Nagamangala taluk as subsidy for coconut cultivation. He also made a false representation that it was he who had secured loans for 600 persons in the taluk under self-employment scheme. He also published pamphlets knowing fully well that he had nothing to do with the Government programmes and policy only to make the voters believe false facts with an eye over votes. Such pamphlets created confusion and brain-washed the voters. This is a corrupt practice under Section 123(4) of the Act.

(e) The 1st respondent had printed and published two pamphlets at Indivara Printers, Nagamangala and another one at Sri Chandramouleswara Printers & Auto Xerox, Nagamangala. They are in the form of appeal giving reasons for the information of the voters as to why he was contesting as a rebel candidate of the Congress Party. He was expelled from the Party on 10/15-11-1989 and inspite of his expulsion from the Congress Party he had published the pamphlets in the capacity of Vice President, Karnataka Pradesh Youth Congres-(I) Committee. He further declared that many top leaders had recommended only his name to the High Command for Party ticket and that he still enjoyed the blessings of the leaders.

(f) He falsely stated and represented that he was responsible for advancing loans to weaker section of the society getting subsidy of Rs. 1000/- from the Government and other benefits to the people. These representations made by him were deliberately done to induce the voters to think that the 1st respondent is solely responsible for all the programmes and policies carried out in the taluk. These publications were printed and published by the 1st respondent in the name of others. Four pamphlets were printed at Nagamangala and distributed through his followers apart from being sent through book-post. More than 50,000 pamphlets were so published. He had purchased postal stamps worth Rs. 2000/- on 18-11-1989 on a single day of denomination of 0.50 ps. from Nagamangala Post Office alone. 4000 of them were sent by book-post to various voters. It is further asserted that nearly one lakh copies were printed but the pamphlets did not disclose the number of copies printed and this itself is in contravention of the provisions of Section 127A of the Act. Contents of one of the advertisements so printed are false. The news paper carrying the advertisement in question was published two days prior to the polling day i.e., on 24-11-1989 though the news paper itself was dated 24-11 -1989. Advertisement in news paper inducing and promising the voters is in contravention of Sub-section (4) of Section 123 of the Act. It is also alleged that these publications are in contravention of Sub-sections (3) and (4) of Section 123 of the Act. The Nagamangala Mitra news weekly published from Nagamangala was published by a close friend of the 1st respondent. In fact the 1st respondent himself had released the news paper.

(g) R-1 got printed two types of pamphlets in Kannada. One of them was shown to have been printed by the Chalukya Printers, Bangalore-35 and the other one without the printer's name. They were published in the name of Kuruba Janangada Jagruta Vedike of Nagamangala Taluk, a non-existing organisation. The contents and style of expression in both of them were one and the same but for the headline caption and insertion or deletion of words relating to Muslims and Harijans in the contents of the pamphlets. They were published on 20th, 21st, 22nd, 23rd and 24th of November 1989 amongst the voters. On 22-11-1989 at about 1.40 p.m. when the petitioner was returning to Nagamangala town after election campaign in the neighbouring villages along with his Party workers, Nanjundaswamy of Devalapura met him near the bus-stand and showed to him a xerox copy of one of such pamphlets and told that they were being printed then at the 'Indivara Printers' at Nagamangala.

Having obtained a xerox copy of the pamphlet said to have been printed at Chalukya printers he rushed to the Police Station near bus-stand and filed written complaint to the Sub-Inspector of Police, Nagamangala. Immediately the Sub-Inspector searched the premises of the Indivara Printers situated at Santemaidana in Nagamangala town, seized the types composed matter and other material from the press and drew a mahazar before witnesses. Case was registered and F.I.R. was sent to the J.M.F.C. Court. Police have also registered a case under Section 125 of the Act read with Sections 295-A and 511 IPC and investigation taken up. It is also averred that the 1st respondent has got his appeals and pamphlets printed at the Indivara printers many a time. One. Babu son of E.V. Shantakumar of Nagamangala town had given this false matter at the Indivara Printers to print on behalf of the 1st respondent. The said Babu was the polling agent of R-1 and his father R-1's counting agent. Publication and distribution of such pamphlets by R-1 was to create or promote feeling of enmity or hatred between Kuruba community on one hand and Vokkaligas, Muslims and Harijans and other community people on the other for the furtherance of prospects of election of R-1 thus prejudicially affecting the prospects of the petitioner. Such pamphlets were distributed on war-footing all over the taluk when the election date was fast approaching,

As a result of me publication of such pamphlets the feelings of other community people were suddenly provoked and the petitioner found it difficult even to get polling agents to monitor the polling on 24-11-1989 against impersonation etc, Many polling stations went without his polling agents. This sudden and unexpected, incident brought about confusion in the rank and file of the taluk organisation and the entire propaganda of the petitioner came to a stand still. As a result R-1 polled more votes by impersonation by his followers. The motive for such publication was to create psychological thrust on the mind of Vokkaligas, Muslims, Harijans voters and to malign the reputation of the petitioner and of his father late Sri T. Mariappa. When these pamphlets appeared in the field the voters had no time to think and they had a great impact on the mind of the voters who wanted to vote for the Congress (I) candidate. This act of the petitioner amounts to corrupt practice under Section 123(3A) of the Act.

(i) Sri H.T. Krishnappa a former minister of the State Government and leader of Janata Dal Party was attacked and assaulted at Bellur and further chased upto Yediyur in Kunigal Taluk and this made the election atmosphere uncongenial to the petitioner. Sri Krishnappa had even made a Press statement in Kolalu news paper published from Mandya on 14-12-1989 and he confirmed the publication of pamphlets provoking caste hatred (by R-1).

(j) Lastly the accounts furnished by the 1st respondent to the District Election Officer on 21-12-1989 do not pertain to the election period. He had not given true and correct account of expenditure. He had not furnished details of expenditure from the date of nomination till date of election. He had also not furnished expenditure incurred on the printing of pamphlets, badges and advertisements published in news paper and other amounts paid by him to several printing presses including Indivara Printers, Chandramouleswara Printers and Auto Xerox as also Nagamangala Mitra news paper. He had hired more than 10 vehicles from 6-11-1989 to 24-11-1989 paying Rs. 500/- per day per vehicle as hire charges. Nagamangala Mitra news weekly was priced at 0-50 ps. per copy and the petitioner got printed and purchased 20,000 copies for distribution among the voters. The expenditure incurred on these items was not furnished in his statement of accounts as required under Section 77 of the Act and Rules 86 and 90 of the Conduct of Election Rules 1961 and also contravened Sub-section (6) of Section 123 of the Act.

5. On account of these various corrupt practices indulged in by R-1 he could manage to receive 25000 more votes than those polled by the petitioner. But for the corrupt practices indulged in by R-1 the petitioner could have secured more than 23,000 votes. Therefore the petitioner prayed for declaring void the election of R-1 and further prayed that he may be declared as having been duly elected to the State Legislative Assembly from Nagamangala constituency.

6. The 1st respondent ('the respondent' for short hereafter as he is the only contesting respondent) in his objections inter alia denied at the outset the achievements of the late father of the petitioner as well as the claim made by him regarding his popularity in the constituency. He denied that he proclaimed himself as a Congress Party candidate much against the directive of the Party High Command. In fact there was no such mandate or directive. Even he denies to have had been expelled from the Congress Party. An active member of a national party like the Congress (I) could not have been unceremoniously expelled without even a show cause notice and enquiry. The Press however reported about his expulsion though it was not a fact. The corrupt practices alleged against him are all false and concocted.

7. The petitioner has given deliberately a false caste analysis of the constituency ignoring the existence of other community people like Brahmins, Jains, Lingayats and others. The election experience in the Country as a whole reveals that caste has never played a significant part in the General Elections. Candidates of the communities whose members are not in majority were also returned from different constituencies in the State in previous elections. The petitioner according to him was throughout a losing horse. In 1985 General Elections he contested as a Congress candidate and lost to H.T. Krishnappa. He was never a man of the masses but a Bangalore who was showing his face in Nagamangala only at the time of elections and therefore it was difficult for him to oppose any candidate working with the local people and toiling day-in and day-out. Similar factors affected the election prospects of the 8th respondent K.N. Puttegowda as well. If the caste was a dominating factor, though an Advocate he could not have polled so low votes as 4214. Therefore according to him his is not a caste crippled constituency.

8. He denies that there was any wave or trend in favour of the Congress Party at the beginning. The peculiarity of this constituency has been that only talent and service rendered by a candidate were always at the forefront. He has the enviable record of good services done which paid him rich dividends in this election. The petitioner being a graduate in Engineering was more enamoured of the Bangalore life. The people no doubt think well of late Sri T. Mariappa and the petitioner wanted to cash on his reputation but in vain.

9. He strongly denies that Patel Javarappa R-2 was inducted by him giving him any false hopes. Though he is a Kuruba by caste he is much senior to the respondent by 20 years. He is closer to the petitioner than to the respondent. No promise was held out by him to R-2. He denies knowledge of Basavalingegowda, his elder brother and Rudregowda playing any part in promoting his candidature. In fact there was discord between him and Basavaiingegowda, R-2 never supported his candidature nor canvassed for him. It is also denied that R-2 worked' as his agent. The petitioner polled only 12,000 votes. Even if all that the petitioner alleged was true the influence of R-2 was only to the extent of 190 votes. He also denies that Rarnalingegowda was induced by him to withdraw his support to the petitioner. He and other ardent Congress workers solidly worked for the petitioner whereas the respondent had to canvass practically single handed without any men, money or vehicle. Rarnalingegowda however was only one of his counting agents and nothing more.

10. He was never aware of printing of any pamphlets as alleged by the petitioner. He denies to have given advertisements in the Nagamangala Mitra Weekly. The allegation that a pamphlet was printed on three color paper resembling National Flag said to have been printed and published by Nanjundaswamy Mattu Mitraru was only a news to him. He had not even seen such a pamphlet and only a copy of it was made available as an accompaniment to the election petition. He never printed it nor published nor authorized any one to do it. The averment that the pamphlet carried Pratigne could be inferred only from the document but he made no such Pratigne. He did not make false promises or assurances of bus facilities or loans to the voters. A single independent member of the Legislature could not think of altering the policy of the Government, Though some poor are eager to take loans their poverty does not come in the way of exercising their matured choice. The said Nanjundaswamy does not appear to have made any public statement about his involvement in these pamphlets. He has not committed any fraud on the voters.

11. Similarly he denies to have got printed and published pamphlets in the name of L.R. Shivaramegowda Abhimanigala Samiti. He has no information about the very existence of such a Samiti. The petitioner himself claims to know it. AH he knows is that' Sri Janardhana Poojary and Sri Bhajan Lal, Central Ministers, had visited the constituency sometime before and if at all they did anything it might go to the credit of Congress Party and even the discredit done by them also should be shared by the Congress Party. He emphatically denies that he got printed and published any pamphlets. He never took credit for the 'Loan-Melas' presided over by Sri Janardhana Poojary. Therefore all the allegations made against him in this behalf are false and untenable.

12. Printing of pamphlets at the Indivara Printers, Chandramouleswara Printers and Auto Xerox at Nagamangala are all false. The copies of such pamphlets annexed to the Petition are got up by the petitioner. He has never taken credit of being supported by the top Party- leaders. He never got printed any pamphlets crediting him with the bounty of getting subsidies and loans to weaker section of the society. Similarly printing and publishing of 50,000 pamphlets or purchasing Rs. 2000/- worth of stamps and posting of 4000 pamphlets to voters and other allegations attracting the provisions of Section 127A of the Act are denied. His connection with Nagamangala Mitra News Weekly is also strongly denied. The editor thereof has not in any way helped him in influencing the voters in his favour. He denies to have had any connection with the printing of pamphlets in the name of Kuruba Janangada Jagruta Vedike. He further denies that such pamphlets were distributed overnight thus resulting in affecting the election prospects of the petitioner. Even he had not seen such pamphlets during election. The inference that the petitioner has drawn that they were got printed and published by him is only his imagination. He had no volunteer, agent or worker by name Babu nor did he authorise him to give any matter for printing on his behalf. However one E.V. Shantakumar was one of his several agents. The allegation that these pamphlets created hatred among people of different communities becomes wholly untenable. He reiterates that there is very good communal harmony in this constituency and he did not do anything to disturb that precious treasure. The Congress (I) Party was not bankrupt of men and volunteers. Therefore the allegation that many of the polling stations had no polling agents of the petitioner is false. No instances of impersonation are given.

13. He denies any incident in which H.T. Krishnappa is said to have been attacked and chased. He was not at the spot when the alleged incident took place. The publication under the caption 'Lalankere Hagarana' is false. The Kolalu news paper was the mouth-piece of the petitioner. The bogie of communal sentiment or caste hatred is completely baseless.

14. As for election expenses he maintains that the accounts maintained by him are reflected in the statement filed by him before the District Election Officer. He has given true and correct account of his expenditure. No payments were made to Indivara Printers, Chandramouleswara Printers, Auto Xerox, Nagamangala Mitra and others since no printing Work was entrusted to them. He denies to have had incurred expenditure of Rs. 500/- per day per vehicle for his election. Similarly printing of 20,000 copies of Nagamangala Mitra and spending of 0.50 ps. per copy to send them by book-post to various voters is also denied. In short there is no violation of the provisions of Section 27 or Rules 86 and 90 of the Conduct of Election Rules. He therefore denies any contravention of Sub-section (6) of Section 123 of the Act.

15. The respondent having specifically denied all the allegations concerning the corrupt practices alleged against him contends that the election petition has no merit at all.

16. Respondents-2 to 7, 9 and 11 to 13 never appeared in pursuance of summons issued and they were set ex parte. Though respondents-1, 8, 10 and 14 appeared they have not filed any written statement.

17. From the averments of the petitioner and respondent-1 the following issues have been set down for determination after they were recast:-

(1) Whether the petitioner proves that the 1st respondent Shivaramegowda though expelled from Congress Party on 10/15-11-1989 still held out that he was the Congress Party candidate and canvassed as such and thereby made the voters believe that he was the Congress candidate and this propaganda materially affected the prospects of the petitioner?

(2) Whether the petitioner proves that the 1st respondent set up and induced the 2nd respondent to contest in the election with the sole intention of dividing minor community votes and thereby damaged the prospects of the petitioner?

(3) Does the petitioner prove that the 1st respondent held out promise of securing Congress ticket to Ramalingegowda son of Siddegowda of Beechanahalli to contest Zilla Parishad election for the vacancy that might be caused by R-1's election to the Assembly and thus induced him to withdraw his support to the petitioner?

(4) Does the petitioner prove that the 1st respondent got pamphlets printed with national symbol on them to promote his candidature and is thereby guilty of corrupt practice?

(5) Whether the petitioner proves that the 1st respondent published or got published pamphlets containing false statements of his achievements with regard to securing of loans to the needy people of the weaker section in Loan-Melas, benefits to coconut growers, etc. which were only in pursuance of the Government Policy and whether this was done to promote his candidature and to damage the prospects of the petitioner?

(6) Whether the 1st respondent got printed and published pamphlets in the name of 'Kuruba Janangada Vedike' arousing communal passion among the voters of other community people making them believe that the petitioner was guilty of arousing such communal feelings and such pamphlets prejudicially affected the prospects of the petitioner at the last moment?

(7) Whether the petitioner proves that the 1st respondent has not filed correct and true accounts of his election expenses to the District Election Officer as required under Rules and that itself amounts to corrupt practice?

(8) Whether the petitioner proves that R-1 spent for his election more than the prescribed limit for a candidate for Assembly constituency in the State by way of hiring more than ten vehicles between 6-11-1989 and 24-11-1989 for his election purpose, printing thousands of pamphlets, purchasing thousands of Nagamangala Mitra copies and giving advertisements in news papers and postage to promote his candidature and suppressed the true expenses and hence is guilty of corrupt practice?

My findings are:

(1) Issue No. 1: No.

(2) Issue No. 2: No.

(3) issue No. 3; No,

(4) Issue No. 4; No.

(5) Issue No. 5: No,

(6) Issue No. 6: No,

(7) Issue No. 7 : Yes.

(8) Issue No. 8 : Not positively but suppressed expenditure to bring the expenditure within the prescribed limit.

and for the following:

REASONS

18. Before taking up the issues for consideration it would be proper to keep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In a recent Decision in the case of LAXMI NARAYAN NAYAK v. RAMRATAN CHATURVEDI : AIR1991SC2001 , the Supreme Court referring to a catena of Decisions laid down the principles as to the nature of pleadings in Election Cases and summarised their sum and substance as follows :

(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: DHARTIPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI, 1987 Supp SCC 93 and KONA PRABHAKARA RAO v. SESHAGIRI RAO, : AIR1981SC658 .

(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: MANPHUL SINGH v. SURINDER SINGH, : [1974]1SCR52 , Kona Prabhakara Rao v. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (referred to above).

(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: JUMUNA PRASAD MUKHARIYA v. LACHHI RAM, : [1955]1SCR608 and RAHIM KHAN v. KHURSHID AHMED, : [1975]1SCR643 .

(4) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH, : [1985]1SCR1089 .

(5) It is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v. Khurshid Ahmed (referred to above), M. NARAYANA RAO v. G. VENKATA REDDY, : [1977]1SCR490 , LAKSHMI RAMAN ACHARYA v. CHANDAN SINGH, : [1977]2SCR412 and RAMJI PRASAD SINGH v. RAM BILAS JHA, : [1977]1SCR741 .

(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v. Khurshid Ahmed (referred to above), MOHAN SINGH v. BHANWARLAL, : [1964]5SCR12 and Ramji Prasad Singh v. Ram Bilas Jha (referred to above).

In the case of M. CHENNA REDDY v. R.R. RAO AND Anr., 40 ELR (1972) 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to a conclusion. Similarly even in the case of T.K. GANGI REDDY v. M.C. ANJANEYA REDDY AND Ors., 22 ELR (1960) 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123(4) of the Act, in the case of Mohan Singh v. Bhanwarlal the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of Clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the fight of matters generally known to them.

ISSUE No. 1:

19. It is not disputed that R-1 was in Congress (I) Party since he entered politics. He also played important part in the matter of selection of candidates in the elections for Mandal Panchayats and Zilla Pahshad. About two months prior to the date of polling, in the 1989 General Elections in the District Congress Committee deliberations according to him his name was recommended to the High Command for being given Congress Ticket. Because the Decision of the High Command was not available even till the time expired for filing nominations on 31-10-1989 he also filed his nomination as a Congress candidate. It is also his contention that majority of the Party workers were for his candidature from the Party. He also deposed that on 4-11-1989 the list announced by the Central High Command was made known to them and the same was released at about 3 AM by 4-11-1989. He and his supporters, were anxiously waiting for the communication from the High Command on the night of 3-11 -1989 at Bangalore and they became aware of the list only in the early hours of 4-11-1989. It came as a surprise to him and his ardent supporters that the petitioner was given the Party ticket. Naturally they became disappointed, Though he intended to withdraw his nomination the Nagamangala Constituency leaders as well as Office Bearers of many Associations and Institutions made a unified bid to him that he should not withdraw from the contest as it was their experience that real and sincere workers in the Party were always, ignored in their constituency. Therefore he had to retrace his step and decided to contest. As a Congress candidate he had sought for 'Hand Symbol' and also 'Elephant Symbol in the alternative. Naturally the 'Hand Symbol' was allotted to the Party candidate whereas the 'Elephant Symbol' went to R-2 Javarappa. It is now on record that he contested on the symbol of 'Rising Sun'. He admitted that he put forth his best efforts to secure the Party Ticket but in vain. He also denies the suggestion that the news papers had announced on 30-10-1989 itself that the petitioner was preferred for the Party Ticket. He is aware that a Congress worker who is refused Party Ticket should not contest against the official candidate or work against him. If any worker commits breach of this Rule he is liable to be suspended from the Party for six years, but adds that ft is not obligatory that in all such cases such a person is expelled from the Party. He is also not aware if he was expelled from the Party for having contested against the petitioner in this election and maintains that he has not received any such order. He had not read about his expulsion in the Prajavani Kannada daily. He admits that he is not the primary member of the Congress Party any longer. In his impression if a Party worker contests as an independent candidate and succeeds he automatically loses his primary membership of the Party and that is why he is no longer the primary member of the Congress Party. He also denies that Chikkarangaiah the General Secretary of the State Congress Committee informed him about his expulsion from the Party. As could be seen from these admissions R-1 contested the election as an independent candidate and nowhere he has stated that he has resigned from the Party.

20. According to the petitioner R-1 was expelled from the Party. The petitioner has given evidence as PW-19 and stated that though he was given Party Ticket others who had filed nominations to contest as Congress (I) Party candidate withdrew excepting R-1. In the Prajavani Bangalore Kannada daily of 12-11-1989 it was published that R-1 was expelled from the Congress Party and at Ex,P-40 is the Press release copy received by him about the expulsion of R-1 from the Party. The copy of the Prajavani news daily is at Ex-P-41. Though Ex.P-40 purports to have been signed by the General Secretary of K.P.C.C. (I) it was urged for the respondent by his learned Counsel Smt. Pramila that there is no independent and reliable evidence to show that he was actually expelled from the Party. It purports to be dated 10-11-1989 and appears to be a photo copy. It states that because R-1 L.R. Shivaramegowda had committed grave act of indiscipline of setting himself up as a rebel candidate contesting against the official candidate of the Party, the petitioner, he was expelled from the Party, The news item at Ex.P-41 is also to the effect that the rebel candidate Shivaramegowda in the constituency was expelled from the Party. It has been argued that in the absence of the evidence of the said Chikkarangaiah or any other Office Bearer of the Party the evidence now given by the petitioner and his other witnesses cannot be relied upon to hold that he was expelled from the Party. No explanation is coming forth for not examining the General Secretary Ghikkarangaiah in proof of R-1's expulsion from the Party. He admitted in his cross-examination that in the Election Petition he has not stated that R-1 had contested as a rebel Congress candidate. Naturally PW-19 has no personal knowledge of R-1 having been expelled from the Party and he had nothing to do with any such decision of the Party, If the petitioner were really serious to show that R-1 was expelled from the Party he could have produced authentic material in this behalf including the evidence of the Office Bearers who were responsible for taking such a Decision. Therefore any vague evidence of this nature given either by the petitioner or his supporting witnesses does not prove this fact.

21. Ex.P-33 purports to have been published by a certain Association called 'The Association of Admirers of L.R. Shivaramegowda' (Abhimanigala Sangha), It also purports to have been published by the Indian National Congress Party of Nagamangala. In order to consider what steps should be taken in protest against this wanton act of denying Party Ticket to R-1 a Meeting was called on 4-11-1989 at 12 noon. This does not contain the printers's name or the printing press which printed it. It was argued for the petitioner by Sri Rudregowda that there is no such Sangha and therefore it must be presumed that the same was published by R-1 himself. This is too far fetched an inference. R-1 has denied that he had anything to do with it and when he was denied Party Ticket people from all walks of life congregated at Nagamangala when he returned and held a Meeting in protest against denial of Ticket to him. Therefore it is quite likely that persons who had all regard for R-1 getting such pamphlets printed and circulated cannot be ruled out and there is not an iota of evidence of R-1 having authorized any one to publish it The inference now sought to be drawn becomes out of place. Even if pamphlets like Exs.P-35 to P-37 and P-39 are perused there is absolutely nothing to show in them that he held out himself as a Congress Party candidate. On the other hand Ex.P-35 is almost like an election manifesto. In Ex.P-36 it was only stated that R-1 was responsible for reviving the Congress Party in the Taluk and though many of his supporters were expecting him to get Congress Ticket they were all disappointed as the Party ultimately selected a person who was a total stranger to that constituency. Similarly in Ex.P-37 also there was an appeal to vote for his election symbol 'Rising Sun'. It also states that the official candidate was making uncharitable allegations against him. This was published in the name of R-1 as the Vice President of Karhataka State Youth Congress and as a Member of the Zilla Parishad. Ex.P-39 is almost a prototype of Ex.P-37. It may be that he was no longer in the Congress Party after he contested as an independent candidate on a symbol allotted to him, but there is no evidence whatsoever that he still held out as an official Congress candidate. PW-13 though speaks Ex.P-33 had not attended the meeting that was called on 4-11-1989. On 21-11-1989 when PW-13 had gone to canvass for the petitioner the voters told him that R-1 had issued pamphlets that he was the Congress candidate, the Vice President of Congress (I) and therefore he should be supported. Ex.P-44 referred to by him no doubt makes mention that he was the Vice President of Youth Congress and also Member of the Zilla Parishad. They were only his one time credentials and none of the witnesses have come forward to state that they still believed that he was a Congress Party candidate. I have referred to the contents of the above pamphlets taking for a moment that they were published by the petitioner. The very authorship of these' pamphlets is in challenge and it is strongly urged for R-1 that the petitioner has not proved that they were published either by R-1 or by his consent and there is no proper and adequate plea in this behalf in the Petition. On the contrary PW-16 Venkatesh has unequivocally stated that as far as he was concerned even after looking into these pamphlets he continued to have his impression that the petitioner alone was the Congress candidate. PW-17 Krishnamurthy in his evidence-in-chief itself deposed that he was not detracted in any way by such pamphlets but voters in general whom he approached told him on his face that there were in fights in their Party but still they would prefer Congress Party. Though PW-18 speaks about the voters showing him pamphlets like Exs.P-35 to P-37 he does not say how the voters had taken the candidature of R-1. The petitioner himself does not state that R-1 projected himself as a Congress Party candidate. What all he states is that these pamphlets contained certain achievements and promises of R-1 which were false to his knowledge. Therefore practically there is no evidence on Issue No. 1 and the same is answered in the negative.

ISSUE No. 2:

22. This issue relates to the corrupt practice under Section 123(1)(A) of the Act Bribery under Sub-section (1) among other things is defined to mean any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand as, or to withdraw or not to withdraw from being a candidate at an election, The main allegation in para-16 of the petition is that the intention of the 1st respondent was to set up the 2nd respondent to divide the votes of minor community people, it is also stated that R-1 induced R-2 to contest the election by promising him to get a Congress (I) ticket to contest bye-election of the Zilla Parishad, Mandya from Nagamangala Zilla Parishad constituency. R-2 also belongs to Kuruba community. It was Rudregowda one of the counting agents of R-1 of Bindiganaviie who proposed the nomination of R-2 and Basavalingegowda elder brother of R-1 was the counting agent for R-2. In proof of this allegation PW-13 and PW-19 gave evidence. On 31-10-1989 which was the fast date for filing nominations P.W.13 had also gone to the Office of the Returning Officer along with the petitioner as he is one of the petitioner's proposers, Ramalingegowda was also present as another proposer. Rudregowda took Rs. 250/-from R-1 for depositing in the name of R-2. This Rudregowda was the proposer for R-2, This is now both R-1 and R-2 filed their nominations as independent candidates. Within 20 or 30 minutes the petitioner as well as R-1 and R-2 filed their nominations. This Ramalingegowda even according to PW-13 got annoyed at the pamphlets published as per Ex.P-17 to arouse the feelings of Kuruba community people. Therefore according to him Ramalingegowda worked for the petitioner till 21-11-1989 and thereafter switched over to the side of R-1 and even became his counting agent Similarly PW-19 the petitioner deposes that R-2 also filed his nomination the same day and Rs. 250/- required to be deposited for R-2 were paid by R-1. Very significantly neither of the witnesses speaks about any bargain between R-1 and R-2. R- 2 polled less than 200 votes. It may be stated that even if it is assumed that Rs. 250/- were paid by R-1 for being deposited while filing nomination of R-2 it does not ipso facto establish that there was 'bribery' within the meaning of Section 123(1)(A) of the Act by R-1 to R-2. The only factor that weighs for the petitioner is that R-2 also happens to belong to Kuruba community. Rudregowda who is said to have received Rs. 250/- and deposited for R-2 has not been examined. R-1 however has denied this allegation. Even if the votes polled by R-2 were secured by the petitioner nothing of consequence could have happened as it appears R-2 lost his deposit and polled miserably. What is further significant is that payment of Rs. 250/- by R-1 for being deposited in the name of R-2 has not been alleged in the Petition. It appears these allegations have been made only by surmise for the reason that R-2 also belongs to Kuruba community. It may be that later R-2 canvassed for R-1 but that does-not establish that the consideration for such canvassing was the one alleged in the Petition. There should be an element of bargaining for the purpose of proving the corrupt practice of bribery. This issue is therefore held not proved.

ISSUE No. 3:

23. It is alleged that Ramalingegowda of Beechanahally was promised the Congress Ticket to contest for Zilla Parishad for the vacancy that may be caused by R-1's election to the Assembly. This is also an implied charge of bribery as defined under Section 123(1)(A) of the Act. PW-19 deposed that among his proposers was Ramalingegowda became the counting agent R-1. Similarly Basavalingegowda the elder brother of R-1 was the counting agent of R-2. In para-6 of his evidence the petitioner deposes that this Ramalingegowda who was also working for him on seeing the pamphlets concerning Kuruba community people told his election agent Ramesh that because the petitioner got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Thus this Ramalingegowda deserted him from 21-11-1989 and became the counting agent for R-1. The petitioner himself does not speak of any promise made by R-1 about securing Congress Ticket for this witness. On the other hand it is his clear evidence that because of the contents of pamphlet Ex.P-17 the said Ramalingegowda his proposer deserted him. There is not an iota of evidence on this issue. Hence my finding on this issue is in the negative.

ISSUE NO. 4:

24. Exs.P-30, P-38 and P-50 are the pamphlets and badge having three colours on them. On the top of Exs.P-35 and P-50 which are small pamphlets there is orange colour, in middle there is white space on which certain material is printed and below there is green colour border. The borders are not uniform in length and breadth, in the centre it is projected rectangular. Similarly on the badge Ex.P-38 the outer circle is in orange colour, in the centre there is white and the inner circle is in green colour. Within the green coloured circle, is the symbol of Rising Sun, Even if it is assumed for the sake of argument that they were published by R-1 there is nothing to show that the National symbol was used by R-1 for his election propaganda. Section 123(3) reads as follows:

'The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'

Thus the use of National flag or National emblem for furtherance of prospects of a candidate is prohibited by this Section. It may be mentioned at once that it is common knowledge that even the Congress Party flag has three colours, namely, orange, white and green and the only distinction between the Party flag and the National flag is with regard to the presence or absence of Ashoka Chakra in the centre. What we find in these three exhibits is only the colour scheme resembling the colours scheme in the National flag. It appears even during electioneering the Congress Party or the Officers of the Election Commission never took exception for the use of this colour scheme in these pamphlet or badges. It is also significant that Section 123(3) does not prohibit simitar colours to be used by a candidate. Added to that there is no evidence as to how the voters were influenced by this colour scheme in the pamphlets. Without further discussion I find that the use of these colours ipso facto does not amount to a corrupt practice.

ISSUE NO. 5:

25. The issue relates to Exs.P-35 and P-50 which are styled as 'Pratigne' or oath taking. Ex.P-35 was filed as Annexure-E. It is purported to have been published by R-1 ending as:

'Yours faithfully

L.R.Shivaramegowda'

(Kannada)

At the top and the bottom are orange and green colour borders and this Pratigne holds out 8 assurances from R-1. They are:

(1) Undertaking by R-1 that he would be available to the public of Nagamangala taluk everyday and working towards their well and woes as their brother.

(2) He would strive with the. Government for the all sided development of the taluk.

(3) He would make honest efforts towards securing employment to the unemployed.

(4) He would secure increased facilities from Banks to the economically backward.

(5) Would give first preference for establishing industries in Nagmangala taluk.

(6) He would fight endlessly for public health, primary education and roads in the taluk and also secure bus facilities to every villages.

(7) Fight for preserving self-respect of Nagamangala taluk people to the last second.

(8) Would give priority for the protection of the minorities and Dalits.

Having enumerated these assurances he assured the voters that he would strive for the development of the Taluk. It is contended in the Petition para-20 that this Pratigne has drastically and materially affected the prospects of the petitioner. This pamphlet is purported to have been published by Nanjundaswamy and friends of Devalapura. Another pamphlet Annexure-F and marked as Ex.P-36 calls upon the voters to vote for R-1 and it lists certain achievements of R-1 in the service of the people.

26. Inter alia it is stated in this pamphlet that R-1 had till then worked as a devoted Congressman for injecting new life in the Congress (I) Party which was on the brink of collapse. He had prevented unnecessary harassment of the public in Revenue and Police Departments and had fought for justice to them. He had also secured the presence of Sri Bhajan Lal and another Minister of Central Government and got subsidies to 3000 coconut growers at the rate of Rs. 1000/- per grower, providing aid for putting up bunds in coconut gardens and had also helped 600 persons in five years under self-employment scheme by avoiding unnecessary harassment from the Officers. Even though R-1 had to his credit these achievements and even though Nagamangala people were almost certain that R-1 would get the Congress Ticket, to their purpose a total stranger to the constituency was inducted as the Congress candidate. This pamphlet purported to have been published by well-wishers of Nagamangala Taluk Assembly constituency and they appealed to the voters that just as they had elected late Chigarigowda and H.T.Krishnappa with large majority R-1 also be elected similarly. Such pamphlets had created confusion and brain-washed the voters. Similarly Annexure-G & H pamphlets now marked as Exs.P-37 & P-39 gave an impression that R-1 was still in the Congress Party inspite of being expelled and they held out that many top leaders had supported the candidature of R-1. It is contended in para-26 of the Petition that the advertisements made in the newspaper as well as these pamphlets are in contravention of Sub-section (4) of Section 123 of the Act.

27. As already stated above, Ex.P-37 purports to have been got printed by R-1 styling himself as the Vice President of the State Youth Congress and Member of the Zilla Parishad. In the first paragraph it is stated that in December 1984 he contested for Nagamangaia Assembly constituency and thus had had an opportunity to spread his service activities throughout the taluk through the Congress (I) Party, He was never bothered about his defeat in that election. In the second paragraph he pointed out that in the 1987 Zilla Parishad elections he was elected to the Mandya Zilla Parishad from the Opposition Party and had occasion to serve the constituency. In the third paragraph it is stated that he had all hopes that during this election he would get opportunity to contest as a Congress (I) candidate Central Ministers like Sriyuths B.Shankaranand, Jaffer Sheriff, Janardhan Poojary and Margaret Alva and also Sriyuths Oscar Fernandes, S.M.Krishna, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar and Nagegowda and also the Youth Congress President, Sevadal President, Mahila Congress President had all recommend his candidature. But for the Lok Sabha, constituency some other person in place of Sri S.M.Krishna was preferred and at that time some persons did not tolerate R-1 coming up in politics and on the pretext that he was youngster he was denied the Congress Ticket. It also states that some one else who was stranger to the constituency was the official Congress candidate and the pamphlet called upon all right thinking people to vote for R-1 only to expose such people. Lastly, it also pointed out that unnecessary allegations were being made against him only to bring his name down. It called upon the people not to pay heeds to such machinations. It ended with describing R-1 as the one having their services in his mind and also gave the telephone numbers of Bindiganavile and Hirisave exchange for contacting him. The pamphlet was shown to have been printed at Indivara Press of Nagamangala.

28. Ex.P-39 is another similar pamphlet with some more additions with regard to his achievements. It states that he had fought for unemployed teachers in Zilla Parishad, for adult education and also to strengthen Anganwadies etc. That also contains his phone numbers of Bindiganavile and Hirisave.

29. PWA-13 N.G.Ramesh has deposed that on 19-11-1989 he went home after election campaign in favour of the petitioner and on the 20th morning his wife handed over to him letters Exs.P-35, P-36 and P-37 purporting to be appeals from R-1 and admirers of Nagamangala Taluk Assembly constituency. As Ex.P-35 appeared to have been published by Nanjundaswamy and his friends from Devalapura he went to Devalapura and questioned him about the propriety of publishing such pamphlets though he was working for the Congress Party candidate. The said Nanjundaswamy denied to have got them printed. He states that all these pamphlets were got printed and published by R-1 himself. Speaking of Ex.P-39 he states that even such pamphlet were published by R-1 as the Vice President of Youth Congress (I) of the State. He denies that Exs.P-35 to P-37 were not received fey his wife in one cover but Ex.P-38 badge was given to him by Haddihalli Krishnappa. A definite suggestion was made that these pamphlets were got printed by him and others which is denied. In order to impeach his credit it was suggested that he was involved in a good number of criminal cases and in these four years 6 or 7 criminal cases were filed against him before the Sub Divisional Magistrate of the Sub division but he adds that he was found not guilty in all of them. It was also elicited that he was acquainted closely with one M.P. Jayaraj who was murdered recently and while denying it he admitted that he was photographed with him when this witness was a Municipal Councillor. G.Venkatesh PW-16 was an active worker for the petitioner. Even according to him R-1 got published pamphlets containing his achievements with regard to the help rendered by him to various sections of the society and such pamphlets were received by him and his wife as well, According to him nearly 5000 such pamphlets were distributed. They are Exs.P-35 to P-37. Such pamphlets to his knowledge were sent to all Drama companies in the village numbering about 300, to School Teachers, Anganawadi workers, Mandal Panchayat workers and Officers. In the cross-examination he stated that it was only his hearsay knowledge that R-1 had got them printed, Ex.P-50 is the same as Ex.P-35 and Ex.P-51 is the same as Ex.P-36. These two pamphlets were produced by PW-17 on being summoned to produce. According to him they were sent by R-1 and he had received them. Along with Ex.P-51 are also Ex.P-51(a) to Ex.P-51 (c) which are similar to Ex.P-36 and P-37, According to him they were also received along with Ex.P-51. It may be stated that Ex.P-51 and 51 (a) are the same. When questioned how he stated that they were sent by R-1(sic) referred to the printing on the backside of Ex.P-50 and P-59(sic) stated that it was printed that they were sent by R-1. (sic) then of Ex.P-50 and P-59(b) and stated that it was(sic) sent by R-1. But on the back of Ex.P-50(sic) sender, However even this witness has no personal knowledge as to where they were printed but they bear the name of the press. He even goes to the extent of stating that even toddy and liquor were distributed by R-1 which is not pleaded in the petition. That only shows his partisan disposition towards the petitioner.

30. PW-18 Nanjundappa deposes that on or about 18th or 19th of November 1989 pamphlets were published and distributed in considerable number among the electorate and wherever he went voters were showing him the pamphlets like Exs.P-35 to P-37 containing promises held out by R-1 and his past achievements. According to him as a matter of fact these were not the achievements of R-1 personally but they were all Government schemes. When he had gone to Satenahally Ramegowda at Vaddarahally he was shown these pamphlets but he did not take them with him to handover at the Congress (I) Party Office. He denied the suggestion that these pamphlets were got printed by the petitioner himself and that he was one of those who had distributed them.

31. According to the petitioner PW-19, R-1 got printed and published pamphlets like Ex.P-35 to P-37 & P-39 and also got prepared badges like Ex.P-38 The pamphlets published promise of developmental works in the constancy. He also asserts that they were printed at 'Indivara Printers' of Nagamangala. The proprietor of 'Indivara Press' and R-1 are friends. Between 17-11-1989 and 19 11-1989 such pamphlets were sent to voters like Anganawadi workers, Mandal Panchayat members. Drama Companies etc. According to him nearly 20,000 such pamphlets were so distributed by post and even the workers of R-1 distributed them. The contents thereof are all false, the matter in Ex.P-35 was published as an advertisement in 'Nagamangala Mitra' of 17-11 -1989 and a copy of ft is produced at Ex.P-3. Kashi Viswanath is the Editor and Publisher of this 'Nagamangala Mitra Weekly'. It had started functioning on 9-6-1989 and it was initiated by R-1. The matter in Ex.P-36 was got published by R-1 in the 'Nagamangala Mitra' issue of 24-11-1989 and (sic)at Ex.P-55.

(sic)examination when questioned about Ex.P-35 he (sic)knows Nanjundaswamy who was the (sic)P-35 makes mention of the name of the said Nanjundaswamy. It was on 23-11-1989 that this pamphlet was brought to his notice by Venkatesh PW-16. It did not contain any postal seal. He did not file any complaints to any of the Authorities under me Election law because there was no time for it. Similarly he did not complain about Exs.P-36 to P-39 as he intended to file the Section Petition. Similarly PW-13 Hand over to him Ex.P-35 and Ex.P-50, PW-21 Doreswamy of Nagatihally deposed that on 17th and 19th of November 1989 he saw pamphlets like Exs. P-35, P-36 & P-37 highlighting the achievements of R-1 and also his promises to the electorate if he were to be elected and such pamphlets were received by post even by one of his brothers who is a teacher. He also saw badges in three color resembling Ex.P-38. When the petitioner was at Bindiganavile on 20-11-1989 he did not handover these pamphlets to him but only informed that he had received them by post. Two other witnesses PW-22 Shivaramaiah and PW-27 H.T.Krishnappa also deposed about these pamphlets Ex.P-35 to P-37 having been distributed among the voters. Y.Nanjundaswamy PW-28 referring to Ex.P-50 deposed that on looking into Ex.P-50 people were asking him whether it was he who had published them. He denied any knowledge. On 20-11-1989 when R-1 had gone to his village he asked him why he had printed his name as his (Nanjundaswamy's) honour was at stake. R-1 replied that it would not matter much as it was he who had got it published However the witness replied that people were talking that it was the act of this witness and then he wrote a letter to the office of the Congress Committee at Bangalore that he was working for the Congress and such pamphlets were published by R-1 under his name. He has received even similar pamphlets as Exs,P-35 to P-37 by post. However the same are not produced. He runs a book-shop at Devalapura wherein he sells stationery articles as well. This Devalapura is a Hobli headquarters and there may be about 60 villages in it. He does not know the names of all the people in the Hobli and the population of his own village is 2000. After receiving such pamphlets as admitted by him he did not file any complaint to any of the Authorities. It was denied that because he was responsible for such pamphlets like Ex.P-50 he was deposing in favour of the petitioner. He had even addressed a fetter to the then Congress President of the State complaining about such pamphlets but no reply was received by him.

33. The evidence of R-1 is one of total denial. He has denied that he ever got printed such pamphlets. He gives his own reasons as to why various witnesses like P.Ws-13 and others are deposing against him attributing motive or ill-will to them, in 1984 General Elections PW-27 contested as an independent candidate whereas R-1 was the Congress candidate but PW-27 won. Therefore out of this political rivalry in the Taluk he has been deposing against R-1. He also deposed that in Devalapura there are 4 to 6 persons with the name Nanjundaswamy and he denies that such pamphlets like Ex.P-50 were got printed by him under Nanjundaswamy's name. He is not aware which Nanjundaswamy got these pamplets printed. In the cross-examination (para-56) he stated that in addition to PW-28 there is one Nanjundaswamy son of Narayanaswamy and another son of Shivalingaiah in Develapura and therefore he is not aware which Nanuundaswamy got printed pamphlets like Ex.P-50. He denies that PW-28 ever questioned about using his name to print such pamphlets. Though he admitted that the photographs appearing on the pamphlets Exs.P-35 to P-37 & P-39 are his he denies that he ever got them printed for his election work. There are nearly 400 villages in the constituency and he maintains to have had not seen such pamphlets at any time before they were produced in Court. His attention was drawn to Exs.P-37(a) and P-37(a) on the back of which his own address has been printed as the sender. He admits it. There are also over them the addresses of the persons to whom they were sent. He has nothing to say about it.

34. In addition to these pamphlets, Exs.P-53 & P-55 copies of 'Nagamangala Mitra Weekly' have also been produced by the petitioner. Ex.P-53 is dated 17-11-1989 and at page-4 the same Pratigne as in Ex.P-35 and P-50 has been printed at the bottom of this foolscap full size as an advertisement and it is printed that the space was donated by Nagamangala Taluk Minority Cell Workers. Similarly in the issue of 24-11-1989 of the same size the matter in advertisement is almost similar to the one in Ex.P-36 and similar other pamphlets wherein the efforts made by R-1 towards getting loans to the poor people or subsidies to the coconut growers etc., are stated. The proprietor of this 'Nagamangala Mitra' gave evidence as PW-25 (Kashi Viswanath).

35. Me started it in June 1989 and the Weekly has a circulation of 2000 copies. However during election its circulation was of 3000 copies. He has no reporters and everything is done by him. He personally moves to collect new for his weekly and if any one wants to publish anything in his paper he has to send it in writing under his signature and if publication is permissible he should print It. His rates of advertisement are Rs. 5/- per column centimeter. Referring to Ex.P-55 (a) the appeal purporting to have been published by R-1 during election he states that the space was donated by the Association of Daily Wage Earners and if there is such a donation the charges are paid by the donor. In Ex.P-55(a) however he admits that there is nothing to indicate that it was donated by the said Association. It is however printed below it that the same was published by the organisation of the admirers of L.R.Shivaramegowda (Abhimanigala Samiti). Because the witness was speaking about something which was against the material in ExP-55 he was cross-examined by the petitioner's Counsel with Court's permission. Reference may also be made to Ex.P-56 at this stage which is the report regarding the inaugural function of this Nws Weekly and it is admitted by PW-19 that his photograph is at Ex.P-56(a). R-1 admittedly is a friend of this witness. However for the inaugural function he had invited all the politicians irrespective of their Parties including R-1 and in the first anniversary of the paper he had remembered the help rendered by R-1 in bringing about this news paper. When his attention was drawn to Ex.P-53 he admitted that the same Pratigne made by R-1 was published as an advertisement in this news paper but he adds that the space was donated by the Minority Cell Workers. One Sheik Ahmed Municipal Councillor of Nagniangala Town is said to have given the advertisement for publication. He denies that it was R-1 himself who gave the matter and asked him to publish and further denied that there is no such Cell in Nagmangala taluk. Similarly Ex.P-55(b) was published at the instance of one Rangegowda a close admirer of R-1. It may be that such an association of admirers came into existence only during and for the election. At Ex.P-3 another similar advertisement purporting to have been published by the Ryta Youth Association of Honakere but the witness pleads his ignorance as to who had given it. As the witness was treated as hostile and cross-examined by the party calling him namely, the petitioner, naturally R-1 had had the benefit and advantage of cross-examining the witness and eliciting favourable answers.

36. The advertisement at Ex.P-55(a) is of significance inasmuch as its title is that it was the appeal or request of Shivaramegowda to the voters. It is in the first person appealing to the voters that as the area of the constituency is particularly large he was not in a position to contact each and every voter and therefore having considered this advertisement the voters may take it as he personally meeting them and cast their votes in his favour. His name finds place at the bottom as L.R.Shivaramegowda with his election symbol Rising Sun. Therefore for all practical purposes even a casual look at it gives an impression that it was made by R-1 personally. Because PW-25 went to the extent of stating that the space for this advertisement was donated by the Daily Wage Earners Association the witness was cross-examined by the petitioner. PW-25 states that whenever such matter is given for publication the same is received under signature of the person giving and thus it becomes an authentic material. No such written matter or manuscript from any member or office bearer of such an Association is forth-coming. Naturally in the cross-examination for R-1 he replied that if he were intimated about the filing of Election Petition well in time he could have preserved the necessary material in controversy. Due to the mistake of the compositor below Ex.P-55(a) the author of the matter, namely, Daily Wage Earners Association was left out. In further examination-in-chief it was elicited by the petitioner's Counsel that in the issue of 11-1-1990 Ex.P-68 he had reported about the petitioner filing the present Election Petition at Ex.P-68(a). It was therefore necessary for him to preserve all the original material received by him for being printed in this newspaper. But it is patently clear that at this point of time the witness had invented a story that a certain association called Daily Wage Earners Association donated the space to print this advertisement when on the very face of it the same purports to have been done by R-1 himself. Therefore the answer elicited in the cross-examination for R-1 should be ignored. He no doubt admits that in Ex.R-7 he reported about the support extended to R-1 by different Associations including the one of Daily Wage Earners but it does not necessarily follow that unlike in the case of some of the advertisements stated above given by Minority Cell and the Association of Admirers to R-1 in this case there is no evidence whatsoever that the advertisement was given by the Daily Wage Earners Association. It thus follows that Ex.P-55(a) was given by and published at the instance of none else than R-1. It was not however elicited what could have been the charges for such advertisement and the same becomes a matter of calculation on the rates now stated by PW-25 for advertisements.

37. Ex.R-2 in Ex.P-34 the News Weekly dated 10-11-1989 is the report made by this very witness. He has reported therein that R-1 had contested as an independent candidate and there was a great flood of his admirers in the background of the fraud committed on him in the matter of refusing Congress Ticket. It is a report published according to PW-25 about the situation then prevailing and when questioned about the collection of Rs.11,780/- in the Meeting of 4-11-1989 the witness stated that he gathered this information from the talk that the persons who were present there had. He was present in the Meeting till the end. With regard to news items published by newspapers the Supreme Court in the case of S.N.BALAKRISHNA v. FERNANDES : [1969]3SCR603 held that a news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence, it is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently. In the instant case PW-25 is the editor himself and he moves on to collect information and whatever he gathers he publishes in his newspaper in question. But what he had published is only his impression and there is nothing that reveals a corrupt practice on the part of R-1 in whatever PW-25 has reported as news items. Therefore even though some of the columns in various issues have been got marked during evidence they only reveal the existing situation then as stated by PW-25. But the advertisement given by R-1 at Ex.P-55(a) and other advertisements to promote the prospects of R-1 stand altogether on a different footing. Therefore it is unnecessary to consider the other news items.

38. In order to show that R-1 had no capacity or was not competent to contribute his own in the implementation of some of the schemes found in some of the pamphlets purporting to have been published by R-1 the petitioner has examined some witnesses who are directly connected either with the sanctioning of loans or sanctioning of subsidies. PW-5 Sunder Shetty, the Divisional Manager of Vijaya Bank at Mysore gave evidence that this Bank is a lead Bank recognised by the Reserve Bank of India for credit plans and for implementing various Government sponsored schemes in Mandya District. In the year 1987 they had held a Credit Camp called 'Sala Mela' at Nagamangala on 11-4-1987. Thirteen branches of six Scheduled Banks participated under the leadership of the Vijaya Bank and the then General Manager reported to the Chairman of the Bank that in that 'Mela' 5735 persons were granted loans totalling to Rs. 2,12,84,000/-. Such loans are required to be granted on the undertaking of the beneficiaries that they would be utilised to earn their livelihood and not for instant expenditure. The respective Branch would determine who among the applicants would fill in the category of deserving beneficiaries. Even if any individual suggested to them to advance loans to any person they do not do it instantly unless they are satisfied that he is eligible for it after their own scrutiny. He however was not in a position to state how many applications were received to be processed for that 'Mela' but he could say there must have been many more out of which the applications of deserving beneficiaries were allowed. He also deposed that Sri Janardhan Poojary, the then Minister of State for Finance, Government of India, was the Chief Guest in that 'Mela'. He then admitted that such 'Sala-Melas' were being conducted throughout the Country.

39. PW-6 N.Ramakrishna the Joint Director of Industries and Commerce and General Manager, District Industries Corporation, Mandya deposed that the Government of India have evolved a scheme for self-employment of unemployed educated youth and his Department implements it in coordination with the officials of Government of India and various scheduled Banks. They invite applications from intending educated unemployed youth for being considered as beneficiaries of the scheme giving wide publicity. There is what is called a 'Task Force Committee' constituted by the Sate Government in consultation with the Government of India, the total number of members is 8 and no private individual is a Member of the Committee. For the whole of Mandya District they have a target of 450 beneficiaries in a year but in the year 1988-89 this was reduced to 225 on the instructions of the Government of India. They give financial assistance for industries, business and service. The annual income of the family of such applicant should not exceed Rs. 10,000/-per year. According to the petitioner's Counsel the 1st respondent has made false statements that he was responsible for getting loans and subsidies sanctioned. Whether it amounts to a corrupt practice is the point. There is nothing in evidence to show that the voters were persuaded or misled by such averments. To fall under Section 123(4) of the Act the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice. R-1 has according to the petitioner made these false statements in some of the pamphlets referred to above and therefore is guilty of corrupt practice. It is not possible to accede to this argument even if it is assumed for a moment that the pamphlets referred to above were published by him or under his authority. They do not in any way relate to the personal character or conduct of the petitioner. In Exs. P-35 and P-50 certain promises are made and they are in the nature of manifesto. If elected R-1 declares what he intends to do so that the electorate may understand the wisdom of returning him to the Legislative Assembly. There is nothing like bargaining or bribery as understood under Section 123(1) of the Act. What exactly constitutes gratification under Section 123(1) was considered by the Supreme Court in the case of IQBAL SINGH v. GURUDAS SINGH, : [1976]1SCR884 . In the case of Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. though there was an allegation of the returned candidate promising to present a silver shield to the electors of the polling booth in evidence the Supreme Court found that there was no evidence that the 1st respondent made any promise of gratification to any elector or voters who would vote in his favour. There was also no evidence if voters were influenced by the alleged promise of gratification or the 1st respondent obtained any promise from the voters in return as a condition for a shield alleged to have been presented. It must be said as in the case before the Supreme Court so in this case there is no allegation of 'bargaining'. What all R-1 has stated in these pamphlets even if it is held that they were published by him was only that he would strive towards improving the living conditions of the electorate of the constituency. It is nothing more. Issue No. 5 is therefore answered in the negative.

40. ISSUE NO. 6

This issue related to the pamphlet Ex.P-17 which has the communal sting in it in as much as it has sought to arouse the feelings of the Kuruba community people. The very authorship of Ex.P-17 is in serious challenge. Section 123(3A) of the Act reads thus:

' The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent his for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'

It has therefore to be seen if in the first instance the petitioner proves that this pamphlet was printed, published and circulated by R-1 to further his election prospects. Secondly, if the contents thereof do amount to corrupt practice. Briefly stated the following is the near English translation of Ex. P-17: -

'A humble request to the Nagamangala taluk Kuruba community voter - brethren. In the historic election being held on Friday 24-11-1989 the great leader of our community - a youth leader - the champion of poor Sriyuth T.M.Chandrasekhar has contested to strive for all-round development of our community. This opportunity is very important and raises a question of destruction or survival of our community, because Vokkaligas and other community people have set to trample on our community.

Awake and stand up. For the all-round development of our community let us stand up and vote our beloved leader T.M.Chandrasekhar. We request you to cast your invaluable vote in his favour for the development of our community.

Kuruba Janangada Jagruta Vedike

Nagamangala Taluk.'

This purports to have been printed at the Chalukya Printers, Bangalore-35, Evidence has been given by almost all the material witnesses of the petitioner that such pamphlets were distributed by R-1 from 21-11-1989 and the result was that the entire trend in favour of the Congress was reversed. R-1 has denied that he has anything to do with this pamphlet. PW-19 deposed that on 22-11-1989 at 1-45 PM when he was at Nagamangala one Nanjundaswamy of Devalapura showed him a pamphlet like Ex.P-17. He told that such pamphlets were under print at the local 'Indivara Printers'. He immediately filed a complaint at the Police Station along with one such pamphlet The Police seized the composed material and printed pamphlet etc., on taking a search at the press. Ex.P-57 is the certified copy of his complaint as the original was sent to the jurisdictional Magistrate's Court along with the F.I.R. According to him there is no such forum as Kuruba Janangada Jagruta Vedike at Nagamangala. PW-3 the Sub Inspector of Police produced the relevant papers from Nagamangala Police Station. The complaint was received at the Police Station from PW-19 on 22-11-1989. On receipt of the complaint a case in Cr.No. 174/89 under Sections 295A & 511 IPC R/W Section 125 of the Representation of the People Act 1951 was registered. The then Sub Inspector seized the composed material, the material given for composing and the pamphlets. Exs.P-17, P-18 & P-18(a) are the printed material and a mahazer was also drawn. PW-14 the then Sub Inspector of Police deposed that on receipt of the complaint he searched the premises of 'Indivara Printing Press' and seized composed galley, composed matter and proof. The photo copy of the mahazer is at Ex.P-49. He questioned Balakrishna the proprietor of the Press and he stated that one Babu son of Shantakumar had given the material for printing. When he visited the Press no pamphlets were yet printed and at Ex.P-18 no corrections are made to indicate that it is only a proof. A comparison of Ex.P-17 and P-18 shows that the entire material from Ex.P-17 was carried into Ex.P-18 excepting the name of the Printing Press of Bangalore which printed Ex.P-17. Only name of Printing Press cannot be found in Ex.P-18. He made efforts to locate Chalukya Printers, Bangalore who had printed Ex.P-17 but of no avail.

41. Balakrishna PW-15 the proprietor of the Press deposed that Ex.P-17 was handed over to him by one Babu for printing the matter contained in it. The same was given for re-printing and he had asked him to print 3000 pamphlets stating that he may require some more later Ex.P-19 is the statement made by him to the Sub Inspector of Police. In the cross-examination he stated that no candidate had sent any authorisation with Babu to print such pamphlets. He however has no personal contact with R-1 Shivaramegowda. On the face of it, it is as though published by the Association of the Kuruba community people. The petitioner has alleged that in order to tarnish his name and also to enrage the voters of other community people R-1 has manoeuvered and got printed such pamphlets. If the evidence of PW-15 is considered nothing emerges out of it. What PW-15 states is that Babu son of Shantakumar of Nagamangala had asked him to print such pamphlets. The petitioner has deposed that a reading of these two pamphlets gave an impression that such pleas were made by him to appeal to Kuruba community people. One Ramalingegowda his proposer who was also working for him on seeing such pamphlets told his election agent Ramesh on 22-11-1989 that because he had got printed such pamphlets to appeal to Kuruba community people he should secure votes only from that community voters. Till then Ramalingegowda was working for him and on seeing the pamphlets he deserted him and became counting agent for R-1. Attempt was made to connect the said Babu to Shantakumar the proposer of R-1. In para-58 of his evidence R-1 admitted that Shantakumar was his proposer. He however does not know if Shantakumar had a son by name Somashekhar. His polling agent was S.Somasekhar but he is the son of one Sannappa and not Shantakumar. He also pleads ignorance who Somasekhar alias Babu is. He admitted that in his list of witnesses dated 26-1-1990 he has cited N.S.Somasekhar alias Babu son of E.V. Shantakumar of Nagamangala as his witness. Similarly in Ex.P-16 the list of polling agents the name of his polling agent is shown as S.Somasekhar, He denies the suggestion that through the said Somasekhar son of Shantakumar he had sent a pamphlet like Ex.P-17 to 'Indivara Press' to print 3000 similar pamphlets. Babu who is said to have given this pamphlet for printing has not been examined. PW-28 Nanjudaswamy deposed that on 22-11-1989 as usual he had gone to 'Indivara Press' to get some printed Forms under various enactments for being sold in his shop. It was about 1.00 PM. The compositor of the Press had composed the matter relating to community feelings. The proprietor was away. When questioned as to why he was printing such material he only replied that his master may be enquired about it. By his side was a printed pamphlet like Ex.P-17. He took one such copy to show to the petitioner. He showed it to the petitioner whom he met at the bus-stand and asked him why he was printing such pamphlets. In the cross-examination he stated that he lifted one pamphlet like Ex.P-17 from a lot that were with the compositor without taking his permission. He had known the compositor earlier. It was urged for the respondent by the learned Counsel Smt. Pramila that there is material contradiction between the evidence of the Sub Inspector of Police PW-14 and this witness inasmuch as the P.S.I. does not speak about a large number of pamphlets like Ex.P-17 being available for being copied while printing but only one pamphlet was there.

42. The evidence of PW.14 shows that on 22-11-1989 the petitioner filed a complaint as per photo copy marked at Ex.P-48 and having registered a case sent the original to the Magistrate's Court. This Ex.P-48 is the photo copy of the original complaint filed by PW-19. He then states that along with the original complaint he also sent a photo copy of a pamphlet that PW-19 had filed with it. On going to the premises of 'Indivara Press' he seized a printed pamphlet given for re-printing and it is Ex.P-17. The proof thereof is at Ex.P-18. PW-28 has now deposed that Ex.P-17 was from a lot that were with the compositor. Therefore Smt. Pramila has urged that the evidence of these two witnesses materially contradicts the evidence of PW-19 and therefore all is not well with the seizure of Ex.P-17 from the premises of 'Indivara Press'. The argument is not without force. PW-19 does not state that he was given the photo copy of Ex.P-17. Therefore from where the photo copy was got of the original sent by PW-14 to the Magistrate's Court has remained unexplained. Similarly if the P.S.I. were to seize only one pamphlet as per Ex.P-17 that was with the compositor the evidence of PW-28 that there were a lot of them becomes highly suspicious. Thus in the absence of the evidence of the person who actually gave the matter for printing the inference would become only speculative. Efforts to connect Babu with Shantakumar have failed and even if Babu is said to be the son of the proposer of the candidature of R-1 it does not necessarily follow that this Babu had the consent or authority of R-1. The respondent's Counsel also invited my attention to the averments made in the complaint by PW-19. He states that such pamphlets were being printed by some senseless people ('Thiligedigalu'). In para-13 of his evidence in cross-examination the following admissions have been made:

'It is not true to say that fearing that Police may take action against me I myself made a false complaint about distribution of such pamphlets. It is not true to say that having given copy of the pamphlet Ex.P-17 at Indivara Press for printing like pamphlets for my use I took Police by filing false complaint and got the material seized from Indivara Press as per Ex.P-18 & P-18(a)...I did not file any complaint to Police to take action against Chalukya Printers. I did not file complaint for publication of such pamphlets against any particular person but made a general complaint of such pamphlets being printed and to take action. My complaint Ex.P-48 is against some unknown persons whom I described as 'senseless people' (Thiligedigalu). I complained so because I did not know who had got them published. I am told that the case is still under investigation.'

This admission as rightly contended by the respondent's Counsel probabilises the argument that the petitioner has now come forward with an improved version that it was R-1 who was responsible for such pamphlets. He has not stated at what point of time he became aware of R-1 's complicity in getting them printed, It is also pertinent to note that effective steps have not been taken against Chalukya Printers as the material which was sought to be printed at the 'Indivara Press' was got earlier printed at the Chalukya Printers. In this behalf PW-19 stated that Ex.P-17 makes mention of the printers as Chaiukya Printers, Bangaiore-35 but Ex.P-42 does not bear the name of the Printer. This Ex.P-42 is also the prototype of Ex.P-17 but with a difference that it names Vokkaligas, Harijans and Muslims as the people who were out to trample on their leader, PW-19 does not state where Ex.P-42 was found. He only states that it is another such pamphlet. He is said to have enquired at Bangalore in the locality called Carmel Rama on Sarjapur Road about Chalukya Printers but came to know that no Printing Press under that name existed.

43. If the evidence given by the witnesses for the petitioner is considered it is as though all were under the impression that such pamphlets were got printed and published by the petitioner himself. None of the witnesses has stated that the people were under the impression that R-1 had done it. PW-13 stated that on 21-11-1989 when he had gone to Bindiganavile village Ramalingegowda one of the proposers of the petitioner told that the petitioner had published pamphlets calling upon Kuruba community people to awake and vote for the petitioner and therefore asked him that the petitioner should take votes only from that community people. When he showed such pamphlet to the petitioner on 22-11-1989 which aroused communal passion and asked him why such pamphlets were distributed and told that voters were blaming them the petitioner only told him that he had not got printed but it was the hindi-work of some other person for which he had filed complaint to the Police. He further told that he was not aware who had done it. When he approached Balakrishna the proprietor of the Press he told that R-1 Shivaramaegowda had sent the matter with one Babu son of Shantakumar. PW-15 Balakrishna however does not corroborate this evidence of PW-13 by stating that it was R-1 who had sent the pamphlet for printing through Babu. But it is pertinent to note that even on 22-11-1989 when this witness asked PW-19 he pleaded his ignorance as to who was its author. PW-16 stated that when he had gone to Cheenya village on 19-11-1989 he saw some pamphlets purported to have been issued. by Kuruba Janangada Jagruta Vedike like Ex.P-17. People of Vokkaliga Community asked him how he was supporting a Kuruba being a Vokkaliga himself in the face of such insinuations. It is only his hearsay knowledge that R-1 got printed such pamphlets. PW-18 has also no personal knowledge as to who had got printed such pamphlets though people were saying that they were given by R-1. Very significantly PW-21 Doreswamy of Nagatihalli deposed that he saw pamphlets like Ex.P-17 arousing communal passion and on 22-11-1989 when he returned from election work in the evening one Vasu and Mani of his village told that such pamphlets arousing communal passion were being distributed by the petitioner and he saw such pamphlets in his house as well. Likewise whomsoever he approached told him that the petitioner had printed such pamphlets and that he should take votes only from his community people. PW-22 however goes to the extent of stating that on 16th and 17th itself one Krishnegowda of their village distributed such pamphlets arousing communal passion. He does not know what is contained in Ex.P-17. PW-23 says thus:

'On 22-11-1989 Shivegowda and Rangegowda of Sanaba village showed to me pamphlets like Ex.P-17 containing a matter addressed to Kuruba community people and told me that our Congress candidate, i.e., the petitioner had printed and published such pamphlets addressing Kuruba people. Having looked into them I felt badly out still as I was working for Congress since 1984 I thought I should continue to support Congress.'

PW-26 Srinivasaiah deposed, -

'On 21-11-1989 I came across a pamphlet in which the Kuruba community people were asked to awake. This I got in the bus-stand at Ancheboovinahalli. That was like Ex.P-17 now shown to me. I am a Vokkaliga by caste. I was astonished to read these pamphlets. The people who had gathered there started talking that such pamphlets were published by the petitioner and were further agitating that when Kuruba community people wanted to unite why not other community people, like Vokkaligas. From there I went to Mellalli to continue my canvassing for the petitioner. At Mellalli in the evening groups of people used to approach me in an agitated mood questioning why I was canvassing for the petitioner when he was asking his community people to awake.'

There is sufficient force in the argument advanced on behalf of the respondent that firstly there is no evidence worthy of acceptance to hold successfully that it was R-1 who was responsible to get such pamphlets printed. Secondly, there is no clear evidence when exactly they were flooded among the electorate while the case of the petitioner is that from 21-11-1989 onwards when such pamphlets were distributed the trend changed. There is evidence as pointed out above that they were being distributed even from 16-11-1989. At any rate it is the case of the petitioner that in order to mar his election prospects R-1 played mischief by getting such pamphlets printed in his name. He has failed to prove that it was R-1 who did it. My finding on this issue for these reasons is in the negative.

44. ISSUE NOS. 7 & 8:

Whilst Issue No.7 falls under Section 100(1)(d)(iv) Issue No. 8 falls under Section 77 of the Act, In a nut-shell the petitioner has contended that R-1 has not maintained proper accounts of his election expenses and has not filed correct account of expenses to the Returning Officer and secondly, that he has spent nearly Rs. 20,00,000/- for his election which is in excess of the limit of Rs. 40,000/- prescribed by the Rules applicable to the State of Karnataka (vide Rule 90 of the Conduct of Election Rules 1961), The election of a returned candidate could be declared void under Section 100(1)(b) of the Act if any corrupt practice has been committed or his election agent or by any other person with his consent or as already stated above by his non-compliance with the provisions of the Act or any Rules made under the Act. Part Viii of Conduct of Election Rules 1961 (the Rules of 1961 for short hereafter) relates to election expenses, in the first instance I take up the alleged breach of the provisions of Section 77 by spending more than Rs. 40,000/- by R-1.

45. Rule 90 of the Rules of 1961 states that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory shall not exceed the limit prescribed for the States mentioned in column 1 of the Table to these Rules. Apart from the expenditure incurred towards printing of pamphlets, purchase of stamps, advertisements in news papers, the particulars of which would be considered at a later stage, the Petition alleges that R-1 had hired more than ten vehicles from 6-11-1989 to 24-11-1989 and incurred an expenditure of Rs. 550/- per day per vehicle. The other expenditure was incurred towards printing of pamphlets, badges and advertisements. On the use of a large number of vehicles of different types evidence has been given by the petitioner and a substantial number of witnesses. The petitioner (PW-19) deposed that R-1 had put into service 10 to 20 vehicles everyday from 6-11-1989 to 24-11-1989, each such vehicle costing him Rs. 500/- per day. In the cross-examination he has stated that he had put into use 6 lorries, 6 vans, 5 cars, 2 tractor-trailers and a Maruti Van. He cannot give their registration numbers nor their models. He admits that he has not given all these particulars in his Petition. PW-13 has sworn that R-1 had for his use 10 vehicles and another 20 vehicles for propaganda in the villages during shandy days. He does not know from whom and on what terms they were procured. However the vehicles under his command included 5 lorries, 2 vans, 2 Ambassador cars and a Maruti Van, the hire charges for an Ambassador car being Rs. 500/- per day and that for a lorry Rs. 1000/- per day. According to PW-16 he had pressed into service 40 to 50 vehicles on shandy days which included vans, lorries and cars. On other days he was using about 25 vehicles everyday and it was only suggested in the cross-examination that he was stating falsely about use of such vehicles. According to PW-15 he had about 20 to 25 vehicles for use in election. He cannot give the registration numbers or the names of owners of the vehicles used by R-1. Similar is the evidence of PW-18 Nanjundappa according to whom 25 to 30 vehicles were used everyday during election. He also cannot give the registration numbers of the vehicles. According to PW-21 during election period 2 or 3 shandies were held at Kadaballi village and on those shandy days R-1 had pressed into service 15 to 20 vehicles and near his offices there were 7 to 8 vehicles constantly. He is also not in a position to give the registration numbers of the vehicles. Even according to PW-26, Srinivasaiah he had put in use 40 vehicles, a matador van, costing Rs. 700/- per day, a car Rs. 400/- per day and a lorry Rs. 800/- per day. He has not stated anywhere how many vehicles and of what type were being used by him.

46. None of the witnesses gave particulars like registration numbers, names of the owners of the vehicles used etc. What is more important is as contended by the respondent's Counsel the Petition itself does not give any such particulars so as to bring to the notice of R-1 the exact charge about the vehicles. In para-39 of the Petition as already pointed earlier he has only stated that more than ten vehicles were used by him between 6-11-1989 and 24-11-1989 paying Rs. 500/- per day per vehicle. Under Section 123(5) of the Act the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle for the free conveyance of any elector, the members of his family or his agent to or from any polling station amounts to corrupt practice. In the case of MADANLAL v. SYED ZARGHAM HAIDER, 13 ELR (1957-58) 456 while dealing with Section 123(5) of the Act the Allahabad High Court held that the corrupt practice is committed not by conveying a voter but by the act of hiring or procuring the conveyance. The allegations with regard to use of vehicles should not be vague. A similar view was taken by the Nagpur Bench of the Bombay High Court in the case of GAJADHAR v. CHUNNILAL SINGH AND Ors., 31 ELR (1971) 1 that if the identification of the vehicle is not made by proper disclosure of particulars in the Petition, the complaint so far as the carrying of voters to the polling station is concerned cannot properly go for trial. That cannot be supplemented at the evidence stage. What is true of the requirement to prove corrupt practice under Section 123(5) of the Act is also true for the purpose of proving the incurring of expenditure beyond the limit prescribed. Admittedly many of the witnesses were Congress workers and some of them even went to the extent of stating for the first time in Court that even toddy and liquor was distributed by R-1 to the voters and the petitioner is not an exception to this overzealous statement to void the election of R-1. In pata-8 of his evidence while speaking about the use of vehicles the petitioner stated that R-1 distributed liquor at the rate of about 10 litres and in addition he also distributed 2 boxes of liquor bottles each containing 48 bottles. Very significantly no such averment has been made in the Petition though it is a very grave corrupt practice to influence the voters with liquor and money. As already pointed out above his key witness PW-13 was involved in 6 to 18 criminal cases. He was however acquitted, PW-16 goes to the extent of stating that R-1 distributed cash and liquor and he informed this to the petitioner after the polling date.

47. Apart from the evidence of these witnesses the petitioner has relied on the evidence of the Police Officer PW-4 the D.S.P. of Srirangapatna. Nagamangala Taluk falls under this Sub Division. He had visited Nagamangala between 4-11-1989 and 26-11 -1989, 5 or 8 times when the election process had started. He had seen R-1 using a jeep vehicle CKN 7070 and a tempo vehicle CAK 1259 for election purpose. He had received a report from the Special Branch (Police) about the use of other vehicles for this purpose. On 21-11-1989 P.C.255 of Beltur Police Station had given a report to the District Police Officer of the Special Branch about R-1 using car No. TDC 4723, bus MYA 6571, lorry MYN 5754, lorry CNT 7391, lorry MYN 5402, lorry MYN 5559, lorry MYT 5028, lorry MYU 4654. A copy of the report received by him is produced at Ex.P-20. Though he verified in the jurisdiction of other Police Stations about the use of any other vehicle he did not get any information. The report also discloses that these vehicles were used during the entire period of electioneering, He admitted that there is no list in his office to show which of the candidates used which vehicle on a particular day though he is aware that four candidates had contested from the constituency. He also admitted that the report Ex.P-20 disclosed that R-1 had used those vehicles only on 21-11-1989 and when he said that the vehicles were used during the entire period of electioneering it was only from his personal knowledge. When further cross-examined he admitted that the report says that the people were brought in these vehicles and Shivaramegowda and Rangegowda were present in the procession at Bellur. The constable who gave the report though in service was not examined. As Ex.P-20 has been marked without any objection on the part of the respondent the contents therein could be looked into.

48. The Constable reported that on 21-11-1989 he was dratted on special duty of collecting information in the electioneering. At about 11.10 AM that morning he saw Chandrasekaraiah (petitioner) being brought in procession on a tractor and from 12.10 PM to 12.45 PM he made election speech. About 2000 persons had gathered in the meeting and people were brought to attend this Meeting in a car TAS 9595, a jeep MYC 7629, another car CTQ 7771, lorry MYW 5220, a car MEV 6225, another car MYO 40, lorry MYA 798 and a lorry MYW 4704. Thereafter the independent candidate Shivaramegowda (R-1) was brought in a jeep CKS 7070 at about 1 PM and he was taken in procession to his pandal at 1.45 PM and 2.30 PM he made the election speech. For this function people were brought in lorries MYN 5754, CNT 7391, MYN 5402, MYN 5559, MYT 5028, MYU 4654 and bus MYA 6571 and a car TDC 4723. Nearly 4000 people had collected in this function. It also makes mention of Janata Dal candidate Krisrmegowda having been brought in another procession and he making election speech. When one of the speakers HT.Krishnappa spoke low of the independent candidate L.R.Shivaramegowda he was shouted at by supporters of the independent candidate and even stones and bricks were thrown at the speakers. However none was injured. Vehicles used for bringing people for this function as well find place in this report. In the case of P.C. PURUSHOTHAMA v. S. PERUMAL, : [1972]2SCR646 it was held that in an issue whether the returned candidate has arranged certain election meeting on certain dates, the reports made by the police officers, who have been deputed by their superiors to cover the meetings in question, are extremely relevant and in the absence of anything to show that the officials are inimically disposed towards the candidate or his party the reports carry greatest possible weight. Reliance was placed on a Decision of the Privy Council in the case of ARJUNO NAIKO v. MODONOMOHONO NAIKO, AIR 1940 PC 153 The Supreme Court observed that the police reports were made when there was no dispute as the election dispute in question could not have been anticipated. Thus Ex.P-20 produced by this witness as having been given to him by his subordinate police official must carry due weight. But as far as the petitioner's case is concerned it is helpful to the extent of showing that the election Meetings were held by R-1 and other candidates including the petitioner and as far as the use of the vehicles mentioned therein is concerned there is nothing to show that R-1 had anything to do with those vehicles. The report clearly says that people were brought in those vehicles to attend the Meeting without specifying anywhere as to who they were. The evidence however of PW-4 is that the jeep CKN 7070 and a tempo vehicle were used for Selection purpose by R-1 but such averments are not made in the Petition and Ex.P-20 does not contain any such allegation. What PW-4 stated about these two vehicles appears to have been based only on his information and the jeep CKN 7070 was admitted by him to be in the use of R-1 even now. R-1 also stated that there is a jeep in the name of his wife which is being used for the business purpose, However he has not given the registration number of that jeep.

49. R-1 gave evidence that at the time of election he had no car of his own but had only a jeep vehicle in his wife's name. For the use of the factory they had two vans and a tractor but he could not remember their registration numbers. The van had no seating arrangement but was intended to transport raw materials. As far as his election campaign was concerned at para-8 of his evidence he deposed that he commenced his canvassing soon after the time fixed for withdrawal of nominations ran out and symbols were allotted. Till 15-11-1989 he moved in all the villages with folded hands requesting the people to vote for him and only from 15-11-1989 he engaged a car for his election purposes. He also hired mike sets only to be used in Meetings. Thus he used only one car and four mike sets. The car was used from 15-11-1989 till 24-11-1989. He totally denies to have used vans, lorries, tractors and cars. Though he admits that there was a jeep which was being used by him but standing in his wife's name, no material has been produced in support of this claim. Though PW-4 the D.S.P. has given the jeep number as CKN 7070 in which the respondent was moving about for electioneering the report Ex.P-20 does not make mention of it. Even in the petition there is no allegation that the jeep with this registration number given by PW-4 was being used by R-1 for canvassing. It is also significant that none of the witnesses of the petitioner have spelt out the registration number of the jeep vehicle used by R-1. A vague allegation like the one made in the Petition that ten vehicles were being used between the dates given in the Petition is wholly contrary to the evidence now sought to be given. It is as though constantly ten vehicles were under use from 6.11.1989 to 24.11.1989 but the evidence now given varies from witness to witness that 10 to 40 vehicles were being used. Thus as far as the use of the vehicles is concerned the evidence adduced by the petitioner does not prove the allegation now sought to be made. R-1 in Ex. P-2(a) relating to the expenditure incurred by him in the prescribed form has stated that he had spent Rs. 4000/- for the car used and the payment made on 3.12.1989. It is also stated in Ex. P-2(a) that a car was taken from Silpa Car Rentals. Even in the evidence he stated the same thing. R-1 no doubt has deposed about he taking recourse to Padayatra from the date the canvassing commenced. In para-8 of his evidence he deposed that till 15.11.1989 he moved in all the villages with folded hands requesting them to vote for him. It is only from 15.11.1989 that he engaged one car. As stated in para-44 of his evidence there are about 360 villages in the constituency but he could not remember how many villages he visited on foot till 15.11.1989. He also does not remember how many kilometers he covered each day but adds he might have visited about 50 villages on one day and a few less on the other day. He does not remember on which day he went to which village. Four or five persons used to be with him during this Yatra but he cannot remember their names. He also does not remember how many times he had visited Bindiganavile. He denies the suggestion that from the first day of his canvassing he was moving in a car and that 15 to 20 vehicles in the first lap of canvass and 20 to 40 vehicles in the second lap of canvass were used. On the face of it the evidence that he visited many villages in his constituency on foot appear ridiculous. When the distance between various villages is not known it is unimaginable that he could have visited 50 villages on one day or a few less. This incredible evidence given by him does not ipso facto establish that he did use any particular vehicle on a single day. It is however his case from 15.11.1989 he used a car and visited various places. Suspicion or doubt regarding the evidence given by him in the matter of Padayatra does not lead to the proof of one vehicle or the other having been used by him especially when the petitioner and some of the witnesses have even gone to the extent of stating that liquor was freely distributed and that cash was also paid to voters. In cases of this nature the possibility of partisan witnesses having a zeal to support the case of a lost candidate cannot be lost sight of. Needless to say what is the standard to proof in charges of this nature. As in a criminal case evidence required is one of conclusive in nature and not one only raising a suspicion. In that view of the matter it is not possible to hold that R-1 used ten vehicles or more to promote his ejection prospects.

50. In order to prove that R-1 incurred expenditure of more than Rs. 40,000/- the money drawn by him from State Bank of Mysore, Nagamangala Branch has been relied upon. The Demand Drafts drawn from the Kadaballi Branch of the Bank were presented for encashment at this Nagamangala Branch by R-1 on different dates. They are at Exs. P-22 to P-25. Ex. P-22 is dated 7.11.1989 for Rs. 42,000/- to be paid to R-1. Ex.P-23 for Rs. 46,000/- and Ex. P-24 for Rs 45,000/- are dated 22.11.1989 whereas Ex.P-25 for Rs. 3,000/- is dated 15.11.1989. He got them encashed on 7.11.1989 and 22.11.1989 respectively. The drafts bear his signature on their back. They only disclose that they were drawn in the name of R-1. Kadaballi is a village and Branches in such small villages did not keep with them cash more than Rs. 25,000/-. The retention limit given as Rs. 25,000/-is the maximum. R-1 has admitted about the drawal of these amounts. PW-26 Srinivasaiah has been examined to prove for what purpose this amount was drawn. According to him on 22.11.1989 he went to Nagamangala after canvassing for petitioner in different villages. At about 1 PM when he was standing near the P.L.D. Bank R-1 approached him in a Maruti van. He wanted to go to State Bank of Mysore Branch and asked him to accompany him (R-1) into the office. There he presented a Demand Draft and drew cash of about Rs. 90,000/-. When asked why it was about R-1 replied that the witness was aware of the election, R-1 had exhausted his funds and required even more money. At the same time R-1 also told that Kuruba Janangada Jagruta Vedika people were canvassing for the petitioner and therefore he should work for R-1. He declined. He could not convey this to the petitioner the same day and went back to his village. He is not in a position to give dates on which he visited different villages but has his own assessment of R-1 spending about Rs. 20,00,000/- for his election. He admitted that at that time he had no amount either in the P.L.D. Bank or the State Bank of Mysore. He denied the suggestion that there was no reason for R-1 to take him into the Bank. Very significantly he asserts that he informed the petitioner on the 24th of that month about R-1 drawing Rs. 90,000/- from the Bank.

51. Admittedly the witness was a very sincere worker of the Congress Party and consequently strongly supporting and working for the petitioner. At the time when he gave evidence he was the Zilla Parishad member. He was employed in the Mysore Paper Mills at Bhadravati during the election and out of curiosity he had gone to his village to know who was given the Congress Ticket.' He is the proposer for the petitioner. He took leave from his office work from 15.11.1989 and worked for the petitioner for 10 days. He visited as many as 70 villages and heard from his friends and relatives that the trend was in favour of the Congress. Even his sister is a Mandal Panchayat member. Thus till 22.11.1989 from 15.11.1989 the witness had visited a large number of villages and was perhaps too well known as a very ardent canvasser of the petitioner. It is rather unthinkable that R-1 would ask such a witness to accompany him into the Bank only to supply evidence of his drawing money for election purposes. R-1 has totally denied about the meeting this witness and taking him into the Bank, About him R-1 has deposed that the father of PW-26 was a member of the Zilla Parishad along with R-1. Me died about 6 months prior to these General Elections and after the Genera! Elections were over the calender of events for Zilla Parishad Election was announced. Though R-1 was elected as an independent member he is now Associate Member of the Congress (I) Party and even in the Assembly he is allotted a seat with the Treasury Benches. He is invited for party meetings. Therefore according to him for all practical purposes he is as good as a Congress (I) member. For these reasons while giving Congress Tickets to the aspirants to contest Zilla Parishad elections the Congress Committee State President consulted him in the capacity of the local M.L.A as to who should be given the Ticket on behalf of the Congress Party. He preferred one Krishna Murthy but did not prefer PW-26, The reason was that he was in the employment of the Paper Mills and people might not like his candidature from the Congress Party as he had not done any social work. His own view was conveyed to PW- 26. With the intervention of some other Party leaders PW-26 however managed to get Congress Ticket. In 1984 Assembly elections R-1 was preferred to the father of PW-26 for Congress Ticket. In that election R-1 contested as an independent candidate. PW-26 canvassed for his father. After PW-26 was got elected to the Zilla Parishad, his opponent Muddegowda represented to the Mysore Paper Mills that being in service PW-26 could not have contested the election and demanded for his dismissal from service. This was given wide publicity in the news paper Prajavani. PW-26 harboured impression that he was responsible for the representation made by Muddegowda and therefore bears ill-will against him. The reasons stated by R-1 about the disposition of PW-26 towards him cannot be lightly brushed aside. He admitted that he had not taken permission to contest Zilla Parishad elections of his employer though he adds that it was not necessary. He also admitted that in 1982 General Elections his father had contested for Assembly elections from Janata Party and he had worked for him. However he does not remember, very strangely, if his father had contested even in 1984 Assembly elections. He also pleads ignorance if in either of these elections R-1 had also contested against his father. It is patently clear by some of his admissions and evidence given by R-1 that PW-26 is a political rival of R-1 and R-1 could not have hazarded the risk of taking this witness to the State Bank of Mysore when he drew cash of Rs. 90,000/-.

52. Though R-1 has admitted to have drawn Rs. 90,0007-evidenced by the Demand Drafts aforesaid, it is his version that the amount was not utilised for the election purpose but to meet the expenses of running his factory and other concerns. He has his personal account in the State Bank of Mysore Branch of Kadaballi and in the same Branch are the accounts of his Private Limited Companies and the Firm in which he has interest The companies or the Firms in which he has got interest have been named in the resume of this Order. According to him the goods manufactured in their various concerns are sent to outside places, even outside the State the invoices addressed to the consignees are delivered in the Bank at Kadaballi. They collect the price of the goods so despatched at the other end and credit the money to the account of the concerned concerns. The Firms have discount facility in the Bank and as and when they require money they draw it from the Bank. It was he who was operating the accounts of all these concerns. If they require more money than available at the Kadaballi Branch their Banker at Kadaballi seeks information from the neighbouring Branches at Nagamangala, or Hirisave and on consulting them gives Demand Drafts in his personal name. Thus the drafts now produced at Exs. P-22 to P-24 relate to their Company and the amounts so drawn under them was utilised for their Company requirements like payment of wages, purchase of raw material etc. Accordingly on 22.11.1989 he had gone to Kadballi Branch at 10.30 AM and presented a cheque for Rs. 90,000/- for encashment from the account of Sriramachandra Curling and Fibring Industry Limited. He had received a bill from Delhi for Rs. 92,000/- on that day and he had asked for payment presenting that bill to the Bank. No official of the Branch at Nagamangala could be contacted from Kadaballi and therefore he was doubtful if a Demand Draft for the entire Rs. 90,000/- could be encashed at Kadaballi for want of cash or otherwise. Therefore the Bank official at Kadaballi gave two Demand Drafts of Rs. 45,000/- in his personal name as per Exs. P-23 and P-24 in about 45 minutes. Nagamangala is about 25 miles from Kadaballi. He went to Nagamangala at bout 2 PM and got the drafts encashed. The amount was given in the hands of Prakash Hegde, the Accountant in their Company who had accompanied him in the car to Nagamangala. That money was utilised for purchasing raw materials for the factory, payment and wages to employees and to purchase other materials required. The amount was also accounted for in the accounts of their Company. Similar is the case with another draft Ex. P-22 which was also encashed on 7.11.1989 at the same Nagamangala Branch. That amount was also credited to their Company account. PW-26 never met him that morning and he was stating falsely that R-1 had taken him into the Bank to be present while getting the drafts encashed. Ex. P-25 another Demand Draft for Rs. 3,000/- dated 15.11.1989 was sent to him from Hassan by some person who owed money to him and he got it encashed. That was his personal amount which he utilised for household expenses. He flatly denies that the money so encashed from these drafts was spent for election expenses. The accounts of their Company are duly audited. This is all what he states with regard to the drafts referred to above and the money received under them,

53. It may be necessary to recapitulate here that the evidence of RW-1 as given with regard to the industries and other business run by him has not been seriously challenged or rebutted. The oldest of them is Sriramachandra Curling and Fibring Industry Limited established by his father about 25 years ago which is a Private Limited Company and after the death of his father he has become its Chairman and the Managing Director. In 1980 he founded a factory under the name Srirama Coir Mechanised Defibring Factory. There is also Srirama Coir Industry run as a partnership concern of which he is the Managing Partner since 3 years. He owns a Saw Mill at Binolganavile village about 10 Kms from his village Lalanakere. It is his case that in all these factories nearly 800 workers have been employed to work regularity and nearly 200 persons are working as their agents to purchase for their factory the coconut husk from their growers. His evidence that 700 workers have been employed in the Fibre and Curling Industry was challenged by asking him about the subscription for the Provident Fund for all the workers working in the Company. One Devaraj is the Manager who has furnished all information to the concerned authorities under the Shops and Establishments Act. Though it was elicited in the cross-examination that his yearly income may be about Rs. 15,000/- to Rs. 20,000/- from all these business and industrial concerns there was no challenge of the very existence of these concerns. Attempt was also made to show that he has no personal knowledge about the actual functioning of these concerns because he is not aware if their factory makes contribution towards E.S.I. but their Manager knows about it. For the finance transactions his signatures are taken and he only pays money required by the Manager who makes requisite payments and therefore the accounting of the payments made is not within his knowledge. He is also not aware if his signatures are taken for contributions towards E.S.I., Provident Fund and Bonus for the workers. When asked about the wages paid to the workers he says that there are some daily wage earners, some are taken on piece-work and some on permanent basis depending on the volume of work. The functioning of Sriramachandra Curling Factory is even confirmed by suggesting in the cross-examination of this witness by the petitioner's Counsel that K.E.B. had done back-billing on their consumption of electricity in this factory to a tune of Rs. 42,000/- and because the brother of PW-22 made back-billing he was got transferred. The same is denied.

54. It was argued for the petitioner that because such a huge amount was drawn during the election period and because R-1 had not accounted satisfactorily for what purpose he spent the amount it must be held that the same was utilised for election purpose. On the other hand. Smt. Pramila for the respondent has contended that though it is the evidence of PW-26 that on 24th itself he informed the petitioner about the R-1 drawing Rs. 90,000/- from the Bank the same does not find place in the Petition. It is not alleged in the Petition specifically that Rs. 90,000/- were drawn from the Bank for being spent for his election. Therefore without there being any pleading the petitioner has now sought to take advantage of the transactions that R-1 had in connection with his industry or business to make out a new case of he spending Rs. 90,000/- for this election in addition to other amounts. Sri Rudragouda for the petitioner clearly admits that there is no such presumption under law that whatever money is received by a candidate during election period must be deemed to have been received for being utilised for the election, There is sufficient force in the argument of the respondent's Counsel that it is no part of Election Law that business transactions should come to a standstill during electioneering nor is it necessary for businessmen to produce all the accounts if they, face an Election Petition. The petitioner himself has not knowledge whatsoever as to how Rs. 90,000/- were spent, PW-28 is unreliable witness as far as his presence at the time of drawal of amount is concerned. It cannot be brushed aside as a total falsehood that R-1 has interest in these concerns in one capacity or the other. Therefore unless the petitioner proves without any ray of doubt or atleast there are strong circumstances to prove that Rs. 90,000/- were drawn only for the purpose of promoting his election prospects from that fact alone it is not possible to hold that the money was spent for this purpose. It may be that R-1 has pleaded ignorance about the payment of wages etc. to the workers but that is not sufficient to hold that his allegation is proved, it has come in evidence that R-1 has been in politics; has been contesting election for Zilla Parishad, T.A.P.M.C. and other bodies and is also taking interest in educational institutions established by Sri Adichunchanagiri Swamiji. The mere circumstance of internal management of these business concerns being entrusted to the Managers or other officers cannot be a ground to hold that he is lying with regard to the utilisation of the money received under these drafts. I therefore find that this allegation now made in the evidence cannot be considered and even otherwise it is not proved that the money was utilised for his election so as to cross the limit of Rs. 40,000/-.

55. Under Issue No. 7 the petitioner has to prove that R-1 has not filed correct and true accounts of his election expenses and the allegations with regard to election expenses are covered by Issue No. 8 , Therefore the two issues are interlinked, I have considered the first part of Issue No,8 with regard to use of vehicles between 6,11.1989 and 24.11.1989. The other items of expenditure are printing of pamphlets, purchasing thousands of Nagamangala Mitra copies, giving advertisements in news papers and postage. At the outset it may be said that the evidence with regard to printing of wall-posters covered by Ex.P-45 cannot be considered. At the bottom of Ex.P-45 it is stated that the wall-posters was published by one Aleem and Subodkumar of Bellur. It has at the top left hand corner the photograph of R-1 with folded hands and an appeal is made under it that the valuable vote be cast in favour of L.R. Shivaramegowda the independent candidate whose election symbol was Rising Sun. In the Petition no such averment that wall-posters were printed and used by R-1 or his agent has been made. The Petition confines itself to the pamphlets produced at Annexure-E, F, G and H. They are all in the nature of appeals to the voters to vote for R-1 and some of them highlight his achievements. The particulars of the contents of these pamphlets or leaflets have been adverted to above. For the first time PW-13 speaks about such posters by saying in para-10 of his evidence that there are 400 villages in the constituency and R-1 had distributed 10 to 15 wall-posters in each of such villages and in towns upto 200. One such wall-poster is at Ex. P 45 and the same purports to have been published and issued by Aleem and Sudobkumar of Bellur. He further stated that Ex.P-45 roughly measures 25'X18' and a poster of this size may cost Rs. 1.50 Ps and Rs. 2.00. For this reason he speculates that R-1 might have spent about Rs. 15,00,000/- to Rs. 20,00,000/- in this election. If about 4000 to 6000 such posters were distributed in villages and about 200 in towns it follows that nearly Rs. 10,000/- to Rs. 12,000/- could have been spent towards them and the same could not have missed the attention of the petitioner while filing the Petition. PW-13 states in the cross-examination that he got the wall-poster Ex.P-45 from one Krishnappa of Haddihalli when he had gone to the village to work for the petitioner. Aleem and Subodkumar are alive according to him and there is no enmity between him and these persons. However he is not aware of the relations between the petitioner and these two persons. He has even seen the petitioner and these two persons talking to one another during electioneering. The same Aleem is the Pradhan of Bellur Mandal Panchayat since April 1990. PW-16 also speaks about R-1 getting printed and affixing wall-posters like Ex.P-45 and hanging banners. However he has no personal knowledge about printing them. In para-6 of his evidence the petitioner (PW-19) stated that R-1 had got printed large number of wall-posters like Ex.P-45 and in each village hundreds of them were pasted on walls and other places. They were got printed by R-1 in the name of Subodkumar and Aleem of Bellur and later they were counting agents of R-2. The petitioner even wanted to state that walls in the villages were also not spared and were painted with such material. The same was disallowed at the time of evidence holding that the petitioner is required to give particulars of corrupt practice to be met by the successful candidate and as such writing with paint on all the buildings that the petitioner now wants to state if considered, the cost thereof may be stupendous without specific pleading. That only goes to show the interestedness of the petitioner to add during evidence much more than what he actually pleaded. Neither Subodkumar nor Aleem has been examined and in para-10 he admits that the name of Chetan Enterprises as Printers' appears below Ex.P-45 and that press is at Bangalore. He has not cited Chetan Enterprises as his witness and if only advised by his Advocate he may call it as his witness. The petitioner stated at one stage that he had informed his Advocate about the number of pamphlets distributed by R-1, posters and banners printed and exhibited but later stated that he did not give instructions regarding number of posters, banners or pamphlets. In the case of AZHAR HUSSAN v. RAJIV GANDHI, : [1986]2SCR782 the Supreme Court pointed out that an Election Petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the Election Petition are not complied with. The Code of Civil Procedure applies to the trial of an Election Petition by virtue of Section 87 of the Act. Since C.P.C. is applicable, the Court trying the Election Petition can act in exercise of the powers under the Code including Order 6 Rule 16 and Order 7 Rule 11(a). An Election Petition can also be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an Election Petition without the material facts relating to a corrupt practice is not an Election Petition at all. At para-34 of the Report it further pointed out that on scrutiny of the averments made in the Election Petition it was evident that it was not pleaded as to who had distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. It was thus obligatory on the petitioner to aver and prove when and where such wall-posters were printed and distributed by whom. The evidence of PW-13 does not advance the case in this behalf and in the absence of any averment in the Petition it would be unnecessary to consider the evidence in this behalf.

56. Annexure-E Ex.P-35, Annexure-F Ex.P-36, Annexure-G Ex.P-37 and Annexure-H Ex.P-39 find place in the Petition as the pamphlets printed published and distributed by R-1. The contents thereof have been discussed in detail while considering their effect on the electorate assuming that they were got printed by the respondent or with his consent. It now remains to be seen whether it could be held proved that they were in fact got printed by the respondent so as to find that the expenses incurred in getting them printed and published has not been shown in the statement furnished to the District Election Officer. Secondly, whether it could be held that any amount was paid to the editor of Nagamangala Mitra the News Weekly which was started sometime prior to the election. Thirdly, whether model ballot papers were got printed by the respondent and whether expenditure was incurred towards them. Lastly, whether banners were also got prepared and hung to promote his election prospects and whether the expenses incurred for that purpose have been suppressed. In the case of D. VENKATA REDDY v. R. SULTAN, : [1976]3SCR445 word of caution was sounded by the Supreme Court in the matter of appreciation of evidence of the witnesses of a defeated candidate who would be out to put forth their efforts to get the election of a successful candidate set aside. They observed that the allegation of publishing an objectionable pamphlet is very easy to make but difficult to rebut. Court frowns on the evidence regarding the publication of the evidence regarding the publication of the pamphlet which comes from the tainted or interested sources. The dominant fact in such a case which has to be proved is whether the pamphlet had come into existence either before or during the election. The language of that pamphlet before the Supreme Court was so strong and conspicuous that it was difficult to believe that the Government Officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet if in fact it was published and widely circulated in many villages. We must not forget that when a particular candidate had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the successful candidate by any possible means. In that case the contesting respondent owned a press and if he wanted to do such a thing there was nothing to prevent him from achieving his object by printing such pamphlets. Relying on these observations it was argued for the respondent that possibility of such pamphlets having been printed by others cannot be ruled out. The Supreme Court also observed that there was absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. The recitals in the pamphlets in question also weighed with the Supreme Court to consider the probability of the successful candidate printing them. They were couched in a most offensive language which is bound not only to hurt the sentiments of the Muslims of the constituency but had also the effect of inciting one community towards another on purely communal grounds. Therefore the Court found that the successful candidate could not have taken the risk of printing such pamphlets. It was also the duty of the petitioner therein, to prove conclusively that the pamphlets had in fact come into existence before or during the elections. Dealing with question of consent in the case of KAMAL NARAYAN SHARMA v. DP. MISHRA, 41 ELR ( 1973) 369 the Madhya Pradesh High Court pointed out that the question of consent is one of fact and it is to be decided in each case on its facts and circumstances, the circumstances in their entirety have to be kept in view. In that case the Hindi Daily Mahakoshal in which the alleged false statements were published and its editor, printer and publisher were the agents of the respondent within the meaning of Section 123 of the Act and it was proved that the statements related to the personal character and conduct of the petitioner; that all the statements were false and that the respondent did not believe any of them to be true, it was held that the false statements were published with the consent of the respondent. It is the overall picture of the case which presents itself and not isolated facts, which will guide the Court to reach the conclusion. The cumulative effect of the respondent's closeness with the Mahakoshal and personal association with the successful candidate and the setting in which the false statements were published one after another and the respondent not contradicting nor dissociating himself from them, were sufficient to persuade the Court to hold that these false statements were published with the consent of the respondent. The respondent was held to have incurred expenditure in contravention of Section 77 of the Act and therefore was guilty of corrupt practice under Section 123(6) of the Act. The peculiarity of the present case at hand is that the pamphlets do not contain any offending statement or false statements to injure the reputation of the petitioner. They however related to the promotion of the prospects of the respondent highlighting his achievements and his promises. The evidence of the witnesses speaking about these, pamphlets has been referred to while discussing the other issues. The uniform evidence given by them is that they were received by post either by them personally or by their kith and kin or they were handed over to them by some one else.

57. Ex.P-35 does not bear the name of the Press. It is shown to have been published by Nanjundaswamy and his friends of Devalapura and contains the photograph of the respondent with folded hands and has election symbol in top and bottom corners and with orange and green borders at the top and the bottom. However at the right hand bottom corner the name of L.R. Shivaramegowda (R-1) is printed below 'Yours faithfully' in Kannada. Thus the appeal is as though from R-1 but the publication is by Nanjundaswamy and friends. It is not possible to make out who this Nanjundaswamy is and who his friends were. Ex.P-36 purports to have been printed by the admirers of Nagamangala Taluk Assembly constituency. That also does not contain the name of the Press. Thus it is not possible to make out who printed and where, these pamphlets. Exs.P-37 and P-39 however have on their top the appeal emanating from L.R. Shivaramegowda, Vice President of Karnataka State Youth Congress and Member of Zilla Parishad. It ends with his printed name as he being always in their service. It also contains the telephone numbers of Binidiganavile and Hirisave. On the back of Ex.P-37 is printed 'from address' of L.R. Shivaramegowda, Vice President, Karnataka Youth Congress Samithi and Zilla Parishad Member, Lalanakere, Bindiganavile Hobli and is addressed to G.V. Venkatesh of Bettada Madanahalli. It also bears the postal seal. Similarly Ex.P-39 is almost the prototype of Ex.P-37 but with addition of one more small paragraph. That also contains the telephone numbers and ends with L.R Shivaramegowda's name as being always in their service. The two pamphlets are shown to have been printed at 'Indivara Printers', Nelamangala and 'Chandramouleswara Press' and 'Auto Xerox', Nagamangala. On the back of Ex.P-39 also the 'from' address of the respondent has been given and so also the postal seal.

58. Indivara Printers' proprietor examined as PW-15 deposed that Ex.P-37 was not printed in his Press at Nagamangala. His is the only Press under the name 'Indivara Printers'. Even the Press phone number is 65. From the contents the authorship of Ex.P-37 is satisfactorily established. PW-10 the petitioner deposed that inspite of R-1 having been expelled from the Congress. Party pamphlets like Exs. P-35 to P-37 and P-39 as well as badges like Ex.P-38 were printed by him. Ex.P-39 was printed at 'Chandramouleswara Press', However in para-21 of his cross examination while referring to Ex.P-39 he states that it was addressed to one Uniscef ALi. Ex.P-39 containing the achievement of respondent-1 bearing his address and phone number as well as postal seat has established that such pamphlets were distributed to promote his candidature. These pamphlets Exs. P-37 and P-39 do contain photographs of respondent-1. The argument advanced on behalf of the petitioner was that because at no point of time respondent-1 had protested against distribution of such pamphlets and because two of the pamphlets contained this 'from' address and also his telephone number it must be presumed that they were either printed by him or with his consent. In the cross-examination of the respondent it was elicited that the Exchange No. 28 of Binidganvaile is his phone number but denied that the other number of Hirisave is his. However when further suggested that on his letter-head describing him as the M.L.A. there is Hirisave phone number 28 he admitted that on his letter-head there is such phone number but added that that is only a contact number. That was got printed only to receive telephone from Hassan side but it is not his phone number. Similar is the case with Ex.P-39 as well. It was suggested that he got printed pamphlets for this election in Chandramouleswara and Indivara Printers but he denied it. Even during previous elections either to the Assembly or Zilla Parishad he stated that he did not get them printed. More over no witness has spoken as to the respondent using model ballot papers to promote his candidature. The model ballot papers contain the names of all the candidates, their election symbols and 'X' mark against the name of respondent-1. They are intended to educate voters to vote for respondent-1. But without the same being an annexure, the petitioner cannot legally lead evidence of their user. Though there is strong evidence of model ballot papers being put in use by respondent-1 the Tribunal cannot consider them.

59. Ex.P-2(a) relating to the election expenses in the proforma shows that he had incurred total expenditure of Rs. 12,700/-. The break-up is: Rs. 3,200/- for mike-set, Rs. 4,000/- for car, Rs. 2,000/- for hand bills, Rs. 2,500/- for banners and Rs. 1,000/- for wall posters. While for the car and the mike-set payment is shown to have been made on 3.12.1989 for the rest of the items payment was made on 2.12.1989. Date of expenditure and date of payment are the same. It is his contention that he got printed some pamphlets from Caxton Press and wall-posters were also printed by them. Ex.P-2(b) purports to be a bill from Varalakshmi Sound System for Rs. 3,200/- and it states that the set was taken between 15,11.1989 and 23.11.1989 and payment was made on 23.11.1989. Silpa Car Rentals bill is dated 3.12.1989 and there is another date as 26.11.1989 and it is not stated what this date is. Caxton Press bill is for Rs. 5,500/-. At Ex.P-2(f) is the proforma for submission, of information regarding the printing of election posters and the Caxton Press proprietor has filled it up saying that the photo of the candidate and the symbol of Rising Sun were used by it and 10.000 wall-posters and 50,000 hand bills are shown to have been printed. The respondent's Counsel relied on a Decision of this Court in the case of SANGAPPA v. SHIVAMURTHISWAMY, 23 ELR (1968) 51. In an Appeal from the decision of the Election Tribunal a Division Bench of this Court considered the provisions of Section 100(1)(d) of the Act and observed that in order to comply with the provisions of Section 78 of the Act, all that a candidate has to do is to produce only a true copy of the account kept by him. It is not necessary for him to produce before the Returning Officer the original account maintained by him, nor it is necessary for him, having regard to the provisions of Section 131 which prescribes particulars entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, unless circumstances justifying that necessity are established, it is unnecessary for the candidate to examine any one who maintained his accounts. The burden of establishing that any excessive expense was incurred or authorized is upon the person challenging the election. In order to make out a corrupt practice under Section 123(6) it has to be established that expenses in excess of Rs. 25,000/- (as the Rules then stood) had been incurred and it would not be enough for the person challenging the election to merely establish that the account kept by the candidate and lodged with the Returning Officer was an incorrect return.

60. It was argued for the petitioner that even if the Court were to come to the conclusion that the corrupt practice under Section 123(6) of the Act cannot be held proved for the reason that the evidence does not disclose that respondent-1 spent more than Rs. 40,000/-, not keeping proper and correct accounts is itself sufficient to declare the election of respondent-1 as void under Section 100(1)(d)(iv) of the Act. It is argued that non-compliance with the provisions of the Act or of any Rules or Orders made under the Act is sufficient to void his election. Chapter VIII deals with election expenses and Section 77(1) to (3) read as follows;

'77. Account of election expenses and maximum thereof:- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.

**** **** ****

(2) The account shall contain such particulars, as may be prescribed.

(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'

(Explanations to this Section are not necessary to be referred to here)

It could thus be seen that under Sub-section (1) every candidate is expected to keep separate and correct account of all expenditure in connection with his election, under Sub-section (2) the account shall contain such particulars as may be prescribed and the total of such expenditure shall not exceed such amount as may be prescribed under Sub-section (3). Whether Sub-sections (1) and (2) bereft of Sub-section (3) are a distinct requirement and breach thereof itself is sufficient to bring the case within the mischief of Section 100 is the point. In fact this appears to be the approach of the learned Counsel for the petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37 and P-39 were got printed by R-1 to promote his election prospects and therefore it was his duty to account for them in Ex. P-2(a). In a similar situation in the case of G.R. MAJHI v. OMKAR SINGH, 35 ELR 80 the learned single Judge of the High Court referred with approval to the observations of a Division Bench of this Court in the case of D. VENKATARAMIAH v. E. NARAYAN GOWDA, 20 ELR 101. The following law pronounced by this Court and extracted by the Orissa High Court is quite relevant. They held:

'It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77. But it must be remembered that what it prohibits is the incurring or authorizing of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts. Section 77(1) says that an account of the expenditure incurred or authorized in connection with the election should be maintained; Section 77(2) provides for rules to be framed prescribing the particulars of the amount to be maintained. It is only Section 77(3) which deals with incurring or authorizing of expenditure. A plain reading of Section 77 in conjunction with Sub-section (6) of Section 123 makes it clear that what is hit by the latter provisions is the contravention of Section 77(3) and not the contravention of Sub-section (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner, it will mean that we are ignoring the words 'incurring or authorizing' found in that Section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'

It is apparent that the Court did not consider if there was non-compliance or requirement of Section 77(1) & (2) of the Act.

61. In para-39 of the petition it is stated that respondent-1 has not furnished expenditure on printing of pamphlets, badges and advertisement published in news paper and other amounts paid by him to several printing presses including Indiwara Press, Chandramouleshwara Press & Auto Xerox and Nagamangala Mitra. Respondent-1 has given account with regard to publication of pamphlets through Caxton Press and the expenditure incurred is Rs. 4,500/- as could be seen from Ex. P-2(f). It reveals that he had got printed 1000 wall-posters and 50,000 hand-bills. Photo of the Candidate and the symbol of the Rising Sun were used in printing them. Respondent-1 is assertive that Exs. P-35 to P-37 and P-39 were not got printed by him. He has however not produced any copy of the hand-bills got printed by him. I have found that the advertisement that appeared in Nagamangala Mitra as per Ex. P-55(a) is as though it was got published by respondent himself. The rates of advertisement in Nagamangala Mitra were Rs. 5/- per column centimeter and referring to a certain advertisement at Ex. P-58(b) the witness stated that he might have charged Rs. 400/- for it. At Ex. P-55(a) is the appeal given by respondent-1 and I have found that there is substance or truth in the contention of respondent-1 or PW-25 that a certain Daily Wage Earners Association had given it for publication. Therefore there is reason to believe that the bill for this appeal at Ex. P-55(a) could have been paid by respondennt-1 himself if at all any one had paid for it. It is a little bigger than the one at Ex. P-56(b) and at the rate now stated by PW-25 it might have cost somewhere Rs. 800/- to Rs. 700/- and even Rs. 800/- if it is considered that the space at Ex. P-55(a) is double the space at Ex. P-56(b). That is all the evidence coming forth with regard to the publication of such an appeal in the news paper and it may as well be considered as advertisement. But there is no evidence of respondents paying for it because PW-25 who was called as a witness for the petitioner was cross-examined by the petitioner's Counsel with permission of the Court. Questions were put to him to elicit the close association between himself and respondent-1. He admitted that respondent-1 is his friend. He also admitted to have called respondent-1 for the inaugural function of his News Weekly and even other politicians were invited. He even remembers the help rendered by respondent-1 in bringing about the news paper. He praised respondent-1 as a Member of the Legislature and the same was published in Ex. P-53. Ex. P-39 as already pointed out contains the telephone numbers of respondent-1 as well as his address as the sender and so also Ex. P-37. These pamphlets are not offending pamphlets as they are not intended to destroy the prospects of the petitioner. On the other hand they are intended to promote the candidature of respondent-1. They cannot be viewed in the same perspective as the offending pamphlet Ex. P-17. I am not impressed by the denial by respondent-1 of any knowledge of such pamphlets being under circulation as they could not have been printed without his knowledge or consent. One is likely to feel that no one hostile to respondent-1 could have been interested in bringing about these pamphlets. At some stage respondent-1 had shown his tendency to hide the truth as in the case of his telephone numbers, the manner in which they were put to use as also going about on foot to all the villages in the constituency within a short span during electioneering. In case of M. Chenna Reddy v. V.R. Rao regarding burden of proof at page 414 of the Report, the Supreme Court's observations are illuminating. It says:

'This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defiance to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practice depends on oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act, inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.'

Speeches said to have been delivered at a dinner meeting were subject matter of the leaflet purported to have been issued over the signatures of Adam Khan and Lathif Ali. There was evidence that they were distributed after the dinner in the presence of the appellant and therefore the High Court held that the commission of the corrupt practice was established beyond any shadow of doubt. Thus the speeches made and contained in the leaflets were in the presence of the appellant whose election was challenged. Respondent-1 has furnished account in Ex. P-2(d) that he paid Rs. 2000/- for 50,000 hand-bills. Even if 50,000 of each type of hand-bills now under question are said to have been got printed by him at the most it may come to Rs. 6,000/- to Rs. 10,000/- for such pamphlets and the total expenditure may only go up by another Rs. 10,000/- to Rs. 15,000/-which does not even come nearer the prescribed limit. He has now shown that he spent Rs. 12,700/- for his election which on the face of it may look rather wholly improbable or ridiculous in a General Election of this nature.

62. In the case of PRABHUDAS v. JORSANG, 18 ELR (1959) 110 the question whether corrupt practice under Section 123(6) which states that 'incurring or authorizing expenditure in contravention of Section 77' included contravention of Clauses (1) and (2) of Section 77 so as to attract Section 100(1)(d) of the Act was for consideration before the Division Bench of the Bombay High Court. The arguments before the Court ran that the failure on the part of the respondent to maintain separate account with all the particulars required by Rule 131 (as the Rule then existed) itself amounts to corrupt practice within the ambit of Section 123(6) of the Act. The learned Judges at page-116 observed:-

'In our judgment, the contention is untenable. The language of Clause (6) of Section 123 is express and explicit and that, apart from the consideration that any clause which lays down any corrupt practice must be strictly construed. The clause does not say that anything which is in contravention of Section 77 is a corrupt practice. But what it says is that the incurring or authorizing of expenditure in contravention of that Section is a corrupt practice. Incidentally, we may observe that there is provision in the Representation of the People Act, 1951, which deals with 'disqualifications for membership of Parliament or of a State Legislature and Clause (c) of that Section relates to failure on the part of a person who has failed to lodge an account of his election expenses within the time and in the manner required under the Act. The carrying out of that requirement or failure to do so is a matter not for the Election Tribunal but for the Election Commission. It is that body which is concerned with this aspect of the matter. We do not deem it necessary in view of the plain and unambiguous language of Clause (6) of Section 123 to discuss the matter in any detail.'

In the case of HASBI FAKIRAPPA MUDDAPPA v. D.B. AYYAPPA, 28 ELR 101 a Division Bench of this High Court held that on account of election expenses which does not carry with it the guarantee of accuracy usually associated with accounts kept day to day contemporaneously with the transactions is not of any evidentiary value and cannot be considered. For that reason it is not, however, obligatory on the part of the Court to draw any adverse inference under Illustration (g) to Section 114 of the Evidence Act that everything contained therein is false or that the appellant has incurred expenditure in addition to what has been recorded therein. The Decision does not attract the facts of this case in as much as we have on record the pamphlets which must have contributed towards his success but are totally suppressed by respondent-1. In this behalf even the Decision in the case of Gajdhar v. Chunnilal Singh is on the same line. The learned Single Judge observed that a corrupt practice under Section 123(8) is committed only when there is a contravention of the provisions of Sub-section (3) of Section 77, where the candidate has incurred or authorized expenditure exceeding the prescribed limit; failure to maintain account of election expenses in the manner prescribed in Sub-sections (1) and (2) of Section 77 does not amount to a corrupt practice under Section 123(6). As the Section now stands as amended, the Legislature has deliberately used the words '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 days inclusive'. Other expenses incurred by a candidate would not fall within the operation of Section 77, even if these are incurred in connection with the election. Expenses incurred or authorized during the period prescribed alone are to be considered and nothing earlier or beyond that period can be considered. What is, therefore, to be established by the petitioner is whether expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules. In this case also the emphasis was on corrupt practice,

63. As I have already found, the account furnished by the respondent in Ex.P-2(a) reveals that he did not spend more than Rs. 13,000/- for his election. On the face of it, that may sound rather ridiculous but for that reason alone there can be no inference of incurring expenditure of more than Rs. 40,000/-, The Decisions referred to above lay down that non-furnishing of proper accounts itself is not a corrupt practice bringing such omissions under Section 123(6) of the Act. What is relevant for our consideration is, whether the election of respondent-1 could be voided on the ground of non-compliance with the provisions of the Constitution or of this Act or of any Rules or Orders made under this Act. Section 100(1)(d)(iv) on which emphasis is laid by the petitioner's Counsel reads thus;

'100. Grounds for declaring election to be void :-

(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion

**** **** ****

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-

**** **** ****

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

the High Court shall declare the election of the returned candidate to be void.'

It is therefore urged that whether it amounts to corrupt practice or not the very non-compliance with the requirements under Section 77 (1) and (2) of the Act is itself sufficient to void the election. Some of the Decisions referred to above no doubt state that it is for the Election Commission to look into the incorrectness of the account and for that reason such not keeping proper and correct account in the prescribed manner does not amount to a corrupt practice. But a reading of these Decisions indicates that the election of the returned candidate in each of those cases was not challenged under this particular provision. I have found that respondent-1 has not kept or furnished correct and proper accounts of the publications referred to above, namely, wall-posters like Ex.P-45 purported to have been got prepared and published by Subodh Kumar and Aleem of Bellur. However on the ground that the material particulars with regard to wall-posters have not been given in the Petition-annexure the same has been left out of consideration. I have discussed at length the contents of Exs.P-35, P-36, P- 37 & P-39 and P-38 badges. Though these are intended to promote the prospects of respondent-1 very significantly he totally denies the knowledge of these pamphlets. If the postal seals on some of these leaflets or pamphlets are perused it is patently clear that they were sent by post during the election period to the addressees thereon. Ex.P-37 bears the postal seal of 16-11-1989, Ex.P-39 bears the seal of 23-11-1989, Ex.P-44 also has the seal of 23-11-1989, Ex.P-50 has the seals of 20-11-1989 and 16-11-1989 and so also Ex.P-51(b) has the seal of 20-11-1989. All these pamphlets end with name of respondent-1 as being under the service of the voters and they were addressed to different persons stated thereon. I have also pointed out that Exs.P-50(b) and P-51(b) have on them printed the telephone numbers of respondent-1 at Bindiganavile and Hirisave. Though respondent-1 attempted to wriggle out of the situation created by printing these telephone numbers of his was not successful and went to the extent of stating that Hirisave telephone number was intended for altogether a different purpose. Whatever it is the addressees were required to contact respondent-1 on these telephone numbers or to enter into correspondence with him. These pamphlets also contain the address of respondent-1 for correspondence describing himself as the Vice-President of Karnataka Pradesh Youth Congress Committee etc. The contents of these pamphlets and other referred to above are in praise of the work done by respondent-1 for the constituency, highlight that respondent-1 was supported by the leaders like Sriyuths: Janardhana Poojary, Oscar Fernandes, Bangarappa, K.H.Patil, Basavalingappa, Kalmankar, S.M.Krishna, Smt. Margaret Alva & others and also that the official candidate of the Party was out to malign him. What is more important is, they are all in first person indicating thereby that they were published and got printed by none else than respondent-1 himself. They also have the photographs of respondent-1 with folded hands at the top left hand corner. Even according to respondent-1 none of these were printed at Caxton Press to which printing charges of about 50,000 pamphlets are shown to have been paid. Respondent-1 has also not produced any of such pamphlets printed by Caxton Press.

64. The demeanour of respondent-1 in the box whenever his attention was invited to these pamphlets was not rather very comfortable. He showed his intention and anxiety to deny the very existence of these pamphlets and depending on this denial his learned Counsel argued that there is nothing to show that these pamphlets came into existence at the time of election. Even regarding the postal seals the learned Counsel went to the extent of urging that in these days anything, including the postal seals could be managed. The argument, to say the least, is wholly without any merit. The postal seals are clear indication of the fact that the pamphlets bearing them were in fact posted or delivered on the dates found on them. There is a strong presumption in favour of the correctness of such seals. Without there being even a bald suggestion that such seals were managed to be procured such an argument cannot readily be accepted. It is no doubt true that the petitioner has not called any of the printers to prove their printing or publication. However though 'Indivara Printers' name appears below Ex.P-37 with telephone number as 65 even the proprietor PW-15 goes to the extent of stating that Ex.P-37 was not printed in his Press though at Nagamangala his is the only Press under the name 'Indivara Printers' and his Press phone number is 65. It was from his Press that Ex.P-17 the offending pamphlet concerning the call to Kuruba Community people was seized. Though the petitioner could not give better evidence concerning this offending pamphlet and I found that it is not possible to hold that such pamphlets were got printed by respondent-1 to damage the prospects of the petitioner, Ex.P-37 bearing the printer's name as well as phone number cannot be viewed in the same manner because I have been repeatedly pointing out this and such other pamphlets were intended to promote the prospects of respondent-1, which by no stretch of imagination could be printed by those opposed to him or without his consent or authorisation. Respondent-1 has not impressed me as a truthful witness in the box. He was making consistent efforts to hide and suppress the truth, the glaring instances are of his resorting to Padayatra to cover the entire constituency without even the aid of any vehicle. The evidence he has given as RW-1 in this behalf is self-exposing. In para-44 the following are answers elicited in his cross-examination:

'I do not remember how many villages I have visited on foot till 15-11-1989. There are about 360 villages in our constituency. I started my Padayatra from Tattahally which is adjacent to Nagmangala Town. I do not remember how many kilometres I covered each day I also do not remember on what dates I halted in which of the villages. I might have visited about 50 villages on one day and a few less on the other day but I cannot give how many kilometres I used to cover each day. I do not remember on which day I left Lalankere on this Padayatra. I also do not remember on which day I went breach to Lalankere. 4 or 5 persons used to be with me on this Yatra. I cannot remember their names. I do not remember how many times I visited Bindiganavile. I might have visited Lalankere before 15-11-1989 after commencing my canvassing on foot but I do not remember when. It is not true to say that right from the first day of my canvassing I was moving in a car and that I am now stating falsely that I moved from village to village on foot or by Padayatra till 15-11-1989. It is false to say that between these dates 15 to 20 vehicles were put in use by me.'

One is certainly entitled to carry on his canvassing moving on foot but the distance, number of villages and the time at his disposal, make it preposterous. Nagamangala Mitra Weekly stood by him throughout and highlighted his election prospects in the issues that were published during the election period. They are Exs.P-34, P-53, P-54 & P-55. Rest of them are of earlier dates or after the election. In none of these editions a single word with regard to his Padayatra could be found. In normal course of events one would expect to give a time table of the visit of respondent-1 to these villages on foot and solicit their co-operation by attending his meetings. Even otherwise the least it could be expected of this Weekly which throughout championed his cause by projecting his image and highlighting the response of the voters was to report about the places he visited on foot on particular days and the response given by the voters. It is patently clear that because he procured a bill for use of car between 15-11-1989 and 22-11-1989 though the election did commence atleast from 4-11-1989 he must have invented this story of Padayatra only to overcome the case of the petitioner that throughout he had engaged a large number of vehicles. As far as expenditure incurred for the use of vehicles is concerned I have come to the conclusion that there is no clinching evidence and therefore not possible to find what could have been the amount that he spent on vehicles. The benefit of such infirmity in the evidence has gone to the respondent to find that the expenditure is not proved to have crossed the limit of Rs. 40,000/-, but at the same time it is patently clear that this is a device adopted only to suppress true expenditure. Though hundreds of villages were involved he covered all of them. Secondly, though he applied for bail in this Court and had given vakalath to his Counsel along with his brother as per Ex.P-69 which admittedly bears his signature and Ex.P-70 the Criminal Petition was filed on behalf of him and his brother he pleads ignorance about contents of these affidavits only to show that he is not living jointly with his brother Basavalingegowda. Though Exs.P-69 and P-70 are the photo copies of the Vakalath and the affidavits and petition he wants the Court to believe that his friend had taken Vakalath form of Sri S.K. Joshi for his signature and he had not even seen the said Advocate. He denies to have signed in the presence of the Advocate though the vakalath makes mention of it. The case referred to therein is one under Sections 307, 375, 427, 448 IPC etc., and he sought interim bail along with his brother. He asserts that the averments made in the application that he is a permanent resident of Bangalore are not true and his friend had given instructions to draft it. Even with regard to contents of he being in K.R.Pet from the evening of 24-11-1989 till the morning of 27-11-1989 he states it to be false. He is not even aware if Basavalingegowda had filed affidavits in support of the said petition. Ultimately he denies that he and his brother had given instructions to draft the petition. For reasons best known to him respondent-1 is reluctant to admit even glaring facts like existence of a telephone in the house taken by him on rent at Bangalore. At para-31 of his evidence though he admits the telephone number allotted to him is 220404 and the same is printed even on his letter-heads he goes to the extent of stating that it is being used by his friend and he has not informed the Telephone Department about it. He even admits that the bill is received in his name and he pays the telephone bill. It is therefore necessary to see that whatever he swears about cannot be accepted on its face value.

65. It may be reiterated here that while the pamphlets that prejudicially affect the prospects of the election petitioner and are termed generally as offending pamphlets should be strictly proved to have been got printed and published by the returned candidate, namely, respodent-1 the same kind of proof need not be expected in the case of pamphlets which are intended to promote the candidature of respondent-1. Depending solely on the burden of proof respondent-1 cannot throw off his hands and say that the petitioner has not proved that it was he who got them printed. Undisputedly respondent-1 never took exception to his photographs being used on such pamphlets and they being printed and circulated in his name and in the first person if at all he had not got them himself printed or were printed with his consent either by his agents or some one else. Regarding the burden of proof the case of M.Chenna Reddy v. V.R.Rao (supra) is quite illuminating. At the cost of repetition it may stated that Their Lordships of the Supreme Court pointed out the distinction between a criminal case and a civil suit and how an election petition partakes the nature of a civil litigation. At a criminal trial, as the Supreme Court has held, the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his sanity or his acting in his defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the Court to weigh the two versions and come to the conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form an opinion that on the evidence the charge is established. Their Lordships further added that we cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inference can therefore be drawn against a person who does not call the evidence which should be available in support of his version, it is apparently clear that respondent-1 had the benefit and advantage of these pamphlets flooded in circulation. No reasonable man can deny that contents of these pamphlets had a great impact on the mind of voters and therefore they substantially contributed towards his success. The leaflets having three colors though not amount to misuse of the National Flag do go to indicate that respondent-1 had much to do with the Congress Party even when he was out of it by the alleged expulsion. All of them highlight his good qualities, his achievements, his sufferings and his plans in future, if elected. Under such circumstances whether there is reason to believe that they were go1 printed and published with his consent assumes materiality, it is also necessary to note that the editor of Nagmanagaia Mitra PW-25 has played no mean a part in his election. His position is no less than that of the editor of Mahakoshal Daily, namely, Shamacharan Shukla in the case of Kamal Narayan Sharma v. D.P.Mishra. Referring to the Law in England as stated by Halsbury, the learned Judges of the High Court of Madhya Pradesh at page 389 of the Report, extracted the law regarding tendency during election as follows:

'A candidate's liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorized by the candidate or was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for this, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant'.

Thereafter they referred to the meaning of the term 'agent' in Election Law. According to them it is not restricted to ordinary relation of principal and agent. It is more like that between master and servant where the former is held responsible for the unauthorized or negligent acts of the latter. As Blackburn J. pointed out and quoted with approval in this case 'all agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the act of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction'. Then they proceeded to observe with regard to tendency during election as follows:

'The substance of the principle of agency is that if a man is employed at an election to get the votes, or if, without being employed, he is authorized to get the votes, or if, although neither employed nor authorized, he does to your knowledge get your votes, and you accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.'

Referring to Section 123(4) of the Act the learned Judges pointed out at para-76 of the Report that publication of a false statement by any person belonging to either of these two categories, namely, 'agent' and 'any other person', to be a corrupt practice, must be 'with the consent of the candidate or his election agent'. What is true of the publication of a false statement is equally true of the statements made in pamphlets intended to promote the prospects of a candidate. If there is reason to believe that the successful candidate had had the benefit of such pamphlets in large circulation then there should be reason to believe that they were printed and published by his consent though the election petitioner may not be in a position to prove who exactly is the printer or publisher as such a thing would have been strictly within the knowledge of respondent-1 himself which respondent-1 with a motive is not prepared to disclose. Needless to say that the predominant aim and object which our law cherishes is that election must be free and fair. Purity of election is the back bone of democracy. The command of the law is that the candidate's election shall not be vacated merely because some news paper, which has been supporting his candidature, published a false statement in relation to another's personal character or conduct; but the candidate shall not be allowed with immunity to get such false statement published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word 'consent'. If it is proved that such publication was with consent of the candidate, then in the eye of law, his responsibility is the same as if himself committed the act. At para-79 the learned Judges also observed that the consent, required under Section 123 may be express or implied. To prove consent direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case.

66. In that case it was found that the editor of Mahakoshal acted as an agent of the successful candidate by the various publications that he had made which were offending in their nature. PW-25 however did not publish any material damaging the prospects of the petitioner. However he was interested in promoting those of respondent-1 as could be seen from the advertisements published in his news paper with photographs of respondent-1 and also in the names of persons who have not come forward to depose about they supplying the material for printing.

67. What constitutes corrupt practice for the purpose of the Act have been enumerated under Section 123. Therefore in some of the cases coming up before various High Courts the question was whether mere non-furnishing of correct account amounts to corrupt practice and the Courts found in the negative. The allegation in the instant case is not that corrupt practice has been practised by non-furnishing of correct accounts but that itself renders the election void as it constitutes breach of the provisions of the Act within Section 100. Respondent-1 has stated in his evidence that one Mannur was the President of the Daily Wage Earners Association and when the trial was going on he was working in Hemavathi Project construction work and knew him for five years. Inspite of that he is not examined as a witness to show that the advertisement in his favour Ex.P-55(a) was got published by the said Mannur (in Nagamangala Mitra News Weekly). On the other hand, it has got all the characteristics of a plea from respondent-1 himself as this is also in the first person and appears to have been published by respondent-1 himself. He even pleads ignorance if any Association calling itself as the Association of his admirers (Abhimanigalu) was born during this election when Ex.P-33 is said to have been published in its name. He admits in para-60 of his evidence that the photographs appearing in Exs.P-35 to P-37 and P-39 are his but he never states who took them and when and for what purpose. It was also suggested to him that in the name of Nanjundaswamy and friends he himself got published Exs.P-35 & P-50 but he denies it. A clear suggestion was made that he had sent such pamphlets to 4000 voters by post and he denies it. It is apparently clear that the pamphlets referred to above were sent by post in view of the postal seals appearing on them and still respondent-1 wants the Court to believe that he is not responsible for despatching them. Ex.P-44 bears the name of Chandramouleshwara Printers & Auto Xerox, Nagamangala and respondent-1 admits that in the list of witnesses given by him he has cited N.R.Umesh, Proprietor, Chandramouleshwara Printers, Nagamangala, but still he was not examined. In his return of expenditure for 1987 Zilla Parishad Elections he had shown to have paid certain money to Chandramouleshwara. Mudranalaya owned by N.R.Umesh and though he admits that the same N.R.Umesh as proprietor of Chandramouleshwara Printers was cited by him as a witness he now finds it convenient to state that Chandramouleshwara Mudranalaya though owned by N.R.Umesh is different from Chandramouleshwara Printing Press. This is another instance to show how respondent-1 has shown his tendency to change answers to suit his convenience and thus hoodwink the proceedings. He also admits to have cited Aleem and Subodh Kumar whose names appear below posters Ex.P-.45 and neither of them is examined. It was also brought to my notice that more than 200 witnesses were cited by him but none has been examined. Some of the witnesses perhaps were intended to dispel any suspicion with regard to the allegations made against the respondent. It is here that the question of burden of proof assumes importance as well as the necessity of rebuttal evidence. Thus the dictum in Channareddy's case is attracted inasmuch as the proceedings partakes the nature of a civil suit in which issues are framed and evidence has been led. It is for the Court to consider ultimately whether in the light of the entire evidence proof required is given by the petitioner and when circumstances amounting to proof of the averments made in the Petition are obtained the same has been rebutted, in all the advertisements relating to promotion of his election prospects his photographs appear either in Nagamangala Mitra Weekly or the pamphlets referred to above and still respondent-1 is quite assertive that he is not responsible for any of them but insists that altogether different pamphlets through Caxton Press were got printed without a single pamphlet being produced. It was clearly suggested that ho such pamphlets were got printed in the Caxton Press in para-84 of his evidence but he denies it.

68. Ex.P-2(a) the statement of expenditure makes mention that payments of the bills were made on 2-12-1989 and 3-12-1989, i.e., well after the results of the election were declared. Rs. 3200/- are said to have been paid on 2-12-1989 to Varalakshmi Sound System as per Ex.P-2(b) but below it there is an endorsement as 'paid by me on 23-11-1989'. Similarly on the cash bill purporting to be dated 3-12-1989 concerning Silpa Car Rental there is a mention of date 26-11-1989. It is not possible to make out what this date indicates and if payment was made on 3-12-1989. His attention was drawn to the writing in Ex.P-2(f) purporting to have been passed by the Caxton Power Press proprietor in which the name of publisher, the date of printing and the date of declaration of the publisher are not at all furnished. Though he is not in a position to say if the hand-writing at Ex.P-2(f) and Ex.P-2(a) are the same, at least they have similarity. Similar appears to be the case in respect of Ex.P-2(c) as well though respondent-1 denies the suggestion that they are all in the handwriting of the same person. It was argued for the petitioner that these documents have been manipulated suppressing the true expenditure. It was suggested that Ex.P-2(a) came to be written at his instance on a certain blank letter-head of Silpa Car Rentals and contents filled up at his instance. He however cannot understand if the contents in his return Ex.P-2(a) and those in Ex.P-2(c) are in one and the same hand. If the signature admitted by him below the endorsement 'the cash was paid on' as per Ex.P-2(c) and the signature below Ex.P-2(b) for having paid the bills on 23-11-1989 is considered the signatures do tally and this payment of 23-11-1989 is not shown in Ex.P-2(a) at all. 1000 wall-posters are shown to have been printed by Caxton Power Press in the bill Ex.P-2(d) but those are not the ones as per Ex.P-45.

69. That PW-25 was almost in the position of editor of Mahakoshal referred to above is evident from the slippery replies that PW-25 the editor of Nagamangala Mitra gave in his evidence. He attributes publication of advertisements in his paper and referred to above to one Assciation or the other or to some individuals like Rangegowda in the case of Ex.P-55(b) whom he describes as the admirer of respondent-1. He now finds it convenient to state that the author of the matter, namely, Daily Wage Earners Association was left out below Ex.P-55(a) due to mistake of the compositor. When the respondent's Counsel questioned him as to why the original matters concerning these advertisements were not preserved by him his reply was that if he were intimated about the filing of the Election Petition well in time he could have preserved them. It was brought to my notice that the Printer is expected to preserve such material for at least six months. Only to show that what is stated about such destruction of the material, if any, is a concoction, it was elicited in para-7 of his evidence by the petitioner's Counsel that this witness himself had reported in the issue of Nagamangala Mitra dated 19-1-1990 as per Ex.P-68 about the filing of the present Election Petition. Thus within two months after the election results were announced the present Petition came to be filed and also reported in Nagmangala Mitra. Therefore if he now finds it convenient that he ought to have been intimated about the filing of the Election Petition it is only an excuse for not producing any such material perhaps because none exists. When respondent-1 is certain as to who is the President of the Daily Wage Earners Association, or the Labourers' Cell and such other organisations who worked for his election he could not have hesitated to examine them. It is not the case of PW-25 that he printed any such advertisement for respondent-1 free of cost. Therefore, it follows that respondent-1 himself got them printed in fictitious names only to avoid showing of expenditure.

70. The Bombay High Court in the case of Prabhudas v. Jorsang (supra) and this Court in the case of Hasbt Fakirappa v. D.B.Ayyappa (supra) pointed out that failure to maintain such an account as required under Sub-sections (1) and (2) of Section 77 is a matter for the consideration of Election Commission and not the Election Tribunal They were considering the words 'incurred' or 'authorized by him' or 'by his election agent' occuring in Section 77 of the Act, to Hasbi Fakirappa's case it was pointed out that other expenses incurred by a candidate would not fail within the operation of Section 77 even if they were incurred in connection with the election. Therefore what this Court pointed out was that expenses incurred or authorized during the period prescribed alone are to be considered and not earlier or beyond that period can be considered, it was also made clear that it has to be established by the petitioner that the expenditure between the two termini provided by Section 77 was in excess of the maximum permissible under the Rules to constitute corrupt practice. It therefore follows that when Section 77(1) and (2) provide for maintenance of accounts of the expenditure whether it has been correctly and truly accounted for in the prescribed manner should come up for consideration. Even if the same does not amount to corrupt practice because of the provision that the Election Commission can take note of it and consider disqualification of the elected candidate whether Section 100 is not attracted is the point that is now raised in this Election Petition though in the cases referred to above the Courts did not advert to it.

71. Chapter III of the Act relates to disqualifications for Membership of Parliament and State Legislatures. Under Section 7(b) relating to definitions, 'disqualified' means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 8 relates to conviction of a person of offences punishable under provisions of various enactments and the incurring of disqualifications for that reason. Section 8-A relates to disqualification on the ground of corrupt practice. Sub-section (1) of Section 8-A states that the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period. White Section 9 relates to disqualification for dismissal for corruption or disloyalty, Section 9-A disqualification for Government contracts and Section 10 to disqualification for office under Government Company, Section 10-A which is quite material for our purpose reads thus:

' 10-A. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person -

(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and

(b) has no good reason or justification for the failure,

the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.'

Disqualification in this behalf could be for a period of three years from the date of order of the Election Commission, It is pertinent to note here that disqualification on the ground of corrupt practice proved under Section 123(6) could be under Section 8-A, Disqualification for failure to lodge account of election expenses could be under Section 10-A. It therefore follows that even though the Election Commission has power to disqualify a candidate for corrupt practices during election and also for failure to lodge accounts of election expenses it does not necessarily follow that the Election Tribunal has no jurisdiction to enquire whether Section 100 is attracted or not to void an election on the ground of non-compliance with the relevant provisions of the Act, When an election could be voided on the ground of corrupt practice there is no reason why it should not be and could not be voided for not furnishing correct and true accounts of the election expenditure when it is mandatory under Section 77 (1) & (2) and Section 100 intends to entrance non-compliance with the provisions of 5the Act as also committing of the corrupt practices. There is absolutely no reason to exclude non-comliance with Sub-sections (1) & (2) of Section 77 simply because Sub-section (3) also falls under the same Section 77. Sub-section (3) no doubt covers expenditure of more than the prescribed limit and that is a self-contained provision of Section 77. If the argument that non-compliance with Sub-sections (1) & (2) are not attracted by Section 100 is accepted then it puts a premium over non-maintenance of proper accounts only to avoid attraction of Sub-section (3). If only respondent-1 had accounted for the printing and publication of various pamphlets, advertisements published in Nagamangala Mitra, badges like Ex.P-38, posters like Ex.P-45, model ballot papers like Exs.P-46 & P-47 and the postage the Tribunal could have been in a position to know whether the expenditure incurred has crossed the limit of Rs. 40,000/-. To say the least, this is another dishonest way of suppressing true expenditure for ulterior motive. Unless there is honesty in maintaining and presenting the correct and true accounts it would be impossible to judge if the requirement of Sub-section (3) is met or not. In my view, therefore, simply because the Election Commission is also empowered to disqualify a candidate for not maintaining correct and true accounts it does not necessarily follow that the Election Tribunal is not called upon to consider if the election could be voided for that reason under Section 100 of the Act, What is a corrupt practice is defined under Section 123 of the Act and incurring of expenditure of more than the prescribed limit is one of such corrupt practices. Therefore non-furnishing of true and proper accounts is a distinct breach under Sub-sections (1) and (2) of Section 77 attracting the consequence under Section 100 of the Act. It is apparently clear that respondent-1 has invented an ingenious method of soliciting votes by getting printed pamphlets to promote his candidature by printing or getting printed them under the names of different persons who have not come forward to own their publication.

72. Section 127-A relates to restrictions on printing pamphlets, posters etc. It reads thus:

'127A, Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.

(2) No person shall print or cause to be printed 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,-

(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and

(ii) in any other case, to the district magistrate of the district in which it is printed.

(3) For the purpose of this section,-

(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and expression 'printer' shall be construed accordingly; and

(b) 'election pamphlet or poster' means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instruction to election agents or workers.

(4) Any person who contravenes any of the provisions of Sub-section (1) or Sub-section (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.'

Election pamphlets or posters as could be found from Clause (b) of Sub-section (3) of Section 127-A means even printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate. Therefore when evidence has been led on both sides and the Tribunal has to decide on the issues involved the burden to prove many a time in civil litigation loses its significance and there is no reason why this established way of appreciation of evidence should not attract the Election Petitions as well when especially it is not a case of proving an offending pamphlet prejudicing the prospects of the lost election petitioner but it is a question of finding out whether those in circulation have promoted the prospects of the successful candidate the benefit of which must have reached the successful candidate. Very significantly except denying everything that is brought on record respondent-1 has not led an iota of evidence with regard to the pamphlets which had had all the effect of influencing the voters. The various provisions of the Act relating to safeguards against unhealthy practices including corrupt practices and requiring adherence of certain Rules with regard to printing and publishing of pamphlets and also maintenance of accounts are intended to maintain the purity of the ways and means adopted by the candidates in the fray. From the way in which respondent-1 has given evidence as well as the Proprietor of Indivara Press & PW-25 of Nagamangala Mitra it is apparently clear that the restrictions imposed on printing and publishing of pamphlets and posters were thrown to the winds. It was the duty and obligation of respondent-1 to inform the Tribunal where these pamphlets intended to promote his candidature were printed, who got printed and if the requirements of Section 127-A of the Act were fulfilled and inspite of citing a large number of witnesses including the proprietors of certain printing presses none has been examined. This only leads to adverse inference against respondent-1. It is rather unthinkable to expect the election petitioner to find out who the proprietor and publisher of such non-offending pamphlets are when everything is done for the benefit of respondent-1 covertly. The standard of proof of offending pamphlets and pamphlets intended for the promotion of candidature of respondent-1 cannot be the same.

73. From the discussion of various factors and aspects delivered above the irresistible conclusion is that respondent-1 is not honest in. keeping the accounts of the election expenses. There is substance and merit in the, contention of the petitioner that what he spent for postage is not accounted for. It is established that the pamphlets bearing the postal seals were in fact posted by him or by his consent. In such case it is rather unthinkable that he did not spend a single pie on postage. Again irresistible conclusion is that the pamphlets responsible for his success were got printed by him or by his consent but the expenditure must be his because none has come forward to state about he spending for their printing and circulation by post or otherwise. The manner of preparation of Ex.P-2(a) and accompanying vouchers show that they were quite casual only to follow technical requirements of Section 77(1) & (2) of the Act. This is only a drab formality and giving an impression that it is make believe. The Election Tribunal which is entrusted with the task of enquiring into the conduct of the candidates in election to maintain and safeguard its purity cannot ignore the dishonest conduct and wilful suppression of expenditure to bring the expenditure within the prescribed limit, it is perhaps for that reason that the Parliament enacted that breach or violation of the provisions of the Act should result in voiding the election of the successful candidate. Oral as well as documentary evidence now adduced has established beyond any controversy that respondent-1 suppressed wilfully the expenditure that he incurred or authorized towards printing of various pamphlets, badges and advertisements in Nagamangala Mitra and also suppressed the expenditure incurred towards purchase of postal stamps for despatching them to the voters. Witnesses for petitioner have deposed that such pamphlets were received by post by some of them and from these instances it can be inferred that a large number of pamphlets, badges or leaflets had been circulated by post.

74. A Division Bench of the Orissa High Court had before it the case of AKSHYA NARAYAN v. MAHESWAR BAG, : AIR1958Ori207 with identical facts. At para-30 of the Report the relevant discussion could be found. There were payments made towards food charges to the workers who were canvassing for the successful candidate. It was also the case of the petitioner that the sums were paid by way of reward to workers and propagandists and this amounted to bribery. The Court observed that under the English Law employment of a paid panvasser is expressly prohibited by a special Section 98 of the Representation of the People Act, 1949 whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act, That aspect of the argument was not accepted in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who has personal knowledge that such payments amounted to rewards. While this part of the argument did not commend the learned Judges proceeded to consider if there is violation of the provisions of Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules and consequently if the appellant is guilty of corrupt practice under Sub-section (6) of Section 123, It was urged before the Court that accounts should separately show the expenditure daily incurred by other persons who were authorized by the appellant to work on his behalf. But the document exhibited only showed the expenses incurred by the appellant. The day to day expenditure were not entered daily but only a consolidated statement was given by his workers regarding expenditure in this behalf. It was urged that such entries would not amount to strict compliance with Section 77 of the Act read with Rule 131. The learned Judges however found that there was no evidence to show that any item of expenditure incurred by the appellant's workers were not eventually brought into the accounts. It might be that the workers incurred expenditure on several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts. With regard to omission in the accounts altogether of expenditure, what the learned Judges viewed, is material. They said:

'Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice'.'

In this context it is necessary to see that Section 123(6) of the Act says that incurring or authorizing of expenditure in contravention of Section 77 is a corrupt practice. As already extracted. Section 77 requires that separate and correct account of all expenditure in connection with the election incurred or authorized by a candidate shall be maintained and the accounts shall contain such particulars as may be prescribed under Sub-section (2). Under Sub-section (3) of course there is a limit prescribed for spending by a candidate, Rule 86 of Conduct of Elections Rule 1961 lays down the particulars to be entered in the expenditure statement, Rule 86 reads thus:

' 86. Particulars of account of election expenses.-

(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:-

(a) the date on which the expenditure was incurred or authorized;

(b) the nature of the expenditure (as for example, travelling, postage or printing and the like);

(c) the amount of the expenditure-

(i) the amount paid;

(ii) the amount outstanding;

(d) the date of payment;

(e) the name and address of the payee;

(f) the serial number of vouchers, in case of amount paid;

(g) the serial number of bills, if any, in case of amount outstanding;

(h) the name and address of the person to whom the amount outstanding is payable.

(2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.

(3) All vouchers shall be lodged along with the account expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial number shall be entered in the account under item (f) of Sub-rule (1).

(4) it shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items or expenditure for which vouchers have not been obtained under Sub-rule (2).'

It thus follows that Sub-section (2) of Section 77 requires the accounts to contain the particulars enumerated in Rule 86, When Section 123(6) states, that it is a corrupt practice to incur or authorizing of expenditure in contravention of Section 77 it follows that the incurring or authorizing of expenditure which is proved to have not been accounted for amounts to corrupt practices. The facts of this case are in a way distinguishable from the facts of the case before the Orissa High Court inasmuch as the expenditure incurred was admitted but the same were not properly accounted for, i.e. necessary particulars in the manner prescribed were not furnished. In the instant case, however respondent-1 has not only not accounted for what he has spent towards printing of pamphlets, postage etc. as detailed above but has totally denied to have even got printed the pamphlets, badges and advertisements in Nagmanagata Mitra thus suppressing the same and which if were properly accounted for could have helped the Tribunal to consider if the expenditure so incurred or authorized has exceeded the prescribed limit. Therefore mere irregularity in maintenance of accounts cannot be equated with wilful suppression of expenditure incurred with an ulterior motive. In my view, therefore, respondent-1 has not complied with the provisions of Section 77, the suppression of expenditure amounts to corrupt practice and hence the consequences of Section 100 ensue.

75. Respondent-1 is young, energetic, affluent, popular, dashing and ambitious in his own right He was an active Congress Party Worker and had participated in Zilla Parishad elections and was in Youth Congress. He is at the threshold of the larger political arena. He may have before him wider horizons. He also appears to have an urge to serve the people of his constituency. If at the very beginning of his career to enter portals of Legislature or Parliament the methods now adopted by him to win election are encouraged or are not arrested he and his ilk are bound to get emboldened to repeat such illegal methods and purity and sanctity of elections lose their meaning. It is the duty of Courts to maintain and protect the object and spirit of the various provisions in the Election Law and inspire confidence of expenditure incurred or authorized should not be made a mockery or drab formality but a vital fabric of the election process. That indeed is the spirit behind Section 77(1) & (2) and 100 of the Act.

76. For the reasons aforesaid I hold that the petitioner has proved that true and correct account of expenditure incurred or authorized was not maintained by respondent-1 which amounts to corrupt practice and for that reason his election deserves to be voided. Accordingly allowing the Petition, I declare that the election of respondent-1 L.R.Shivaramegowda is void and the same is set aside. The prayer of the petitioner that he be declared elected cannot be granted in view of number of votes polled by him being considerably low and the voters must have a free choice to elect their representative. To achieve it fresh election for the constituency has become imperative. The petitioner shall get costs of this petition from respondent-1 and Advocate's fee is fixed as Rs. 1000/-. Necessary steps shall be taken as required under Section 103 of the Act.