Mangi Lal v. K. R. Pawar & Anr.

as R.W. 13 in the High Court and proved his complaint from the original record of criminal case No. 52 of 1965 in the Court of AdditiOnaJ,. Magistrate (Jud.), Dewas. A certified copy of that complaint Exhibit D. 1 was also placed on the record. According to that complaint it was alleged that Mangilal Joshi was the President of Dewas Mill Mazdoor Sangh and had held that office for the preceding 9 years. Several amounts relating to membership fee were stated to have been collected from the workers and the amount of several thousand rupees were neither dei'osited with the Mazdoor Sangh office nor entered in the rel1tted registers. It was principally on the basis of the pendency \ MANG! LAL v. PA WAR (Dua, J.) of this complaint that the High Court came to the conclusion that the appellant had not discharged the onus of showing that tlie offending statements of facts were false and were believed. by the returned candidate, the speakers at the meeting in question and the Ediitor of 'Ranchand:i' to be false or were not believed by them to be true. The charge relating to disqualifications of the returned candidate was based on the averment that the returned candidate was a Chairman of the Board of Directors of the Dewas Senior Electric Supply Company Private Limited and that this Company generated electricity and supplied· the same to the State Govern­ ment under a contract. On this basis it was pleaded that under s. 9A of the Act the returned candidate must be held to be disqualified from seeking election to the Assembly. The High Court repelled this contention holding that the returned candidate could not be held to have directly entered into any contract with the Government merely by reason of the fact he was the Chairman of the Board· of Directors of the Electric ' Supply Company. Reliance for this view was placed on a decision of the Madhya Pradesh High Court reported as Satya Prakash v. Bashir Ahmed Qureshi('). In regard to the allegations of the election expenses incurred by the returned candidate being in excess of the prescribed limit it was contended that petrol worth about Rs. 2,000 had been purchased by respondent No. I between May 31, 1968 and June l 5. 1968 and if the whole of this amount wa~ to be added to the expenditure admitted by the returned candidate to have been incurred then this would exceed the prescribed limit, thereby con­ travening s. 77 of the Act. This contravention according to the appellant's learned counsel is a corrupt practice covered by s. 123 sub-section (6) of the Act. The High Court did not agree with this submission and held that the petrol and oil purchased from May 30, J968 to June 15, 1968 inclµded petrol and oil for various other requirements of the returned candidate and the whole of it was not proved to have been used for election purposes. The whole of this amount, therefore, could not be included in the election expenses. The election petition as. already observed was dismissed by the High Court. On appeal, Dr. Singhvi has re-agitated all these points. We may first dispose of the point of disqualification. Section 9A of the Act on which the entire argument rests, reads :­ Disqualification for Government contracts. "A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the (1) A. I. R. 1963 M. P. 316. 827 828 J) SUPREME COURT R'EPORTS [1971] SUPP. s.c.R. course of his trade or business with the appropriate Gov· ernment for the supply of goods to, or for the execution of any works undertaken by, that Government." It is unnecessary for the purpO£e of 1this case to reproduce the explanation. It is clear that this section only covers contracts whi'ch have been entered into by· a person in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government. Dr. Singhvi contended that the supply of electricity would amount to the supply of goods. That perhaps is so. But, in our opinion, the contract of supply of electricity by the Electric Supply Company can by no means be considered to be a contract entered into by respondent No. I in the course of his trade or business by reason merely of the fact that he was at the relevant time Chairman of the Board of Directors of the Company. It is not possible to describe the business of the Company to be the trade or business of the Chairman of the Board of Directors. A Company registered under the Indian Companies Act, it is settled beyond dispute, is a separate entity distinct from its shareholders. The Chairman of the Board of Directors of the Company while functioning as such cannot be said to be engaged in his trade or business as con­ templated. by s. 9A of the Act. The legal position is so clear that the appellant's learned counsel, after an unsuccessful attempt to persuade us to the contrary view, felt constrained not to pursue this point seriously. Coming now to the charge of the alleged corrupt practice covered by s. 123(4) of the Act, we do not consider it necessary t<' go into the evidence in detail or to consider at length the arguments addressed on the question of the impression conveyed to the people who had heard the speeches or read the offending publication in the newspaper 'Ranchandi'. We will accept the position that the offending statements, both oral, made in the various speeches referred to earlier and those contained in print as published. in the Ranchandi dated June 16, 1968 (Ext. Pf8) do prima facie offend s. 123 (4) of the Act if false and either ibelieved to be so or not believed to be true. Now it is not dispute<I that the criminal complaint dated July 27, 1965, under ss. 403 and 406 I.P.C. was filed against Mangi Lal appellant and. Kanahiyalal by one Lal Singh in the Court of the Magistrate, !st Oass, Dewas. In that complaint it was alleged that the accused had collected from the workers of Dewas Mill the following amounts :._ I. Membership fee 2. Wageboard Fund Rs. 15,000/­ Rs. 1,5001· MANG! LAL v. PA WAR (Dua, J.) 3. Gratuity Fund Rs. 1,500/- 4. Mazdoor Sevadal Rs. 900/- 5. Travelling Fund Rs. 1,000/- 6. Water Tax Rs. 1,000/- Jt was also averred in the complaint that except for a sum of Rs. S or 6 thousands the remaining amounts were neither deposited with the Mazdoor Sangh' s office nor were they entered in the relevant registers. Mangi Lal was described in the com­ plaint as the President of the Dewas Mill Mazdoor Sangh and Kanahiyala,l accused ijo. 2 as the Secretary of the said Union. The appellant Mangi Lal in his cross-examination as P.W. 32 admitted that this complaint dated, July 27, 1965, had been filed against him which was pending at the time of the bye-election i.n question and that a charge had also been framed in that case on August 22, 1968 (Ext. P / 9). He further admitted that Lal Singh was a mill worker in the Dewas Standard M'tll and was also a representative of the Indian National Trade Union Con­ gress of Dewas. Lal Singh appeared as R. W. 13 and proved that complaint and also a part of his statement dated April 12, 1968 made in the Court of the Magistrate. The returned candidate appearing as R. W. 17 stated that he knew of this complaint. The High Court on appraisal of the entire material on the record expressed its final conclusion on Issues S(f) and 6(a) to (h), which are the relevant issues, in these words : "Assuming, though not admitting, that the petitioner; has succeeded in proving the falsity of the_ impugned statement, even then he is not out of the woods. As held in Sheopa!singh v. Rampratap (A.I.R. 1965 S. C. 677) even if the statement is false the candidate making it is protected unless he makes it believing it to be false not believing it to be true i.e., to say statements which are not true but made bona fide are also outside the ambit of the provisions of sec:Von 123(4) of the Act. We have seen above that the criminal complaint against the peti­ tioner for having committed criminal misappropriation or criminal breacli of trust was filed in the criminal Court in the year 1965 when this bye-election was not even in contemplation. It Js no body's case that either the three speaker&, namely Shri Abdual Rehman Talib (R,W, 2), Shri Kanhaiyasingh Thakur and Shri Khaserao Ghorpade or the Edjtor Shri Rameshwar Sen (R.w, 5) or the returned candidate Shri Krishnajirao 1>awar (R.W. 17) were in any way instrumental in. getting the said complaint filed against the said petitioner. This very complaint was pending at the . time of this bye­ election in question and a number of witnesses examined 829 JI 830 SUPREME COURT REPORTS (1971] SUPP; S,C.R. by the petitioner and also examined by the returned candidate have stated that such a complaint was filed in criminal court against the petitioner and it was pending. In other words, filing of such a complaint against the petitioner was a notorious fact known to several persons in Dewas and subsequently the charge was framed against him on the same material thus, the impugned statement was not founded on mere suspicion pure or simple nor was it the result of pure conjecture or guess. It had posi­ tive basis and the basis subsequently proved to be prlma facie correct, therefore, the impugned statement falls within the ambit of bona fide statement. In conclusion, therefore, I hold that the petitioner failed to prove that the impugned statement was false and was either believed to be false or not believed to be true. Accordingly, I decide these two issues as not proved Hence it follows that the impugned statement does not fall within the mischief of section 123(4) of the Act." We are in full agreement with the approach and the final con­ clusion of the High Court. The, essential basic facts seems to lls to be incontrovertl"ble, and if that be so, then clearly there is a very heavy burden on the petitioner I appellant to prove the most vital ingredients prescribed in s. 123(4) of the Act, namely, that the impugned statement of fact is not only false, but in addition that the respondent returned candidate and his agents publishing the impugned statements either believed the same to be false or did not believe them to be true : See Dr. J ag;it Singh v. Giani Kartar Singh and others.(') On this point there is absolutely no material on the record. This challenge by the appellant also fails. Dr, Singhvi, we may in fairness to him point out, took considerable pains to persuade us to hold that the order of. the criminal Court framing the charge is inadmissible in the pro­ ceedings. It was also submitted that the charge having been framed afterwards could not be taken into account for considering whether the impugned statements could be 'believed to be true at the time they were made. Dr. Singhvi submitted that if the order of the criminal Court> is ignored and if the appellant's denial about embezzlement is taken into account then the state­ ments made at the meeting and those published in 'Ranchandi' must be held to be false and believed to be so or not believed to be true, This argument is difficult to accept. To begin with, the appellant has himself admitted on oath as a witness that the complaint was filed against him for embezzlement and a (I) A. I. R. 1966 S. C.773. MANG! LAL V. PAWAR (Dua,/.) 831 charge was also framed in those proceedings. This admission A cannot be ignored. We are also not inclined to agree with Dr. Singhvi that the order framing the charge or the complaint are inadmissible in evidence. Dr. Singhvi has not drawn our atten· tion to any provision of law which would render them inadmissible in the present proceedings. The counsel then submitted that Lal 2ingh's statement in the criminal Court is clearly inadmissible as evidence and the High Court was wrong in taking that statement into consideration. Here again, we think that the counsel in not quite correct. The statement of Lal Singh would seem to us to be relevant and admissibfo under several provisions of the Indian Evidence Act. We need onlr refer to ss.,7, 8 and 11(2) of that Act. In this connection it 1s interesting to point out lhat Lal Singh's statement in the Criminal Court was got proved in his cross-examination at the instance of the election petitiouer I appellant. It would, therefore, be a question for consideration if the appellant can now be permitted to find fault· with what he himself had elicited by cross-examining R.W. 13. However. even excluding this cross-examination there is. in our opinion, .ample material in support of the conclusions of the High Court. This takes us to the charge of corrupt practi~..1 iir·S. 123(6) of the Act. This charge relates to the respOi\"clepf' 'returned candidate's election expenses bein~ in excess of the limit pres·· cribed by s. 77 of the Act read with r. 90 of the Election Rules. The only point in respect of this charge pressed before us is that petrol worth Rs. 2,000 /. was purchased by the returned candidate from Mis A. J. Khanuja & Sons, Bombay-Agra Road, Dewas. If this amount is added to the admitted expenditure of Rs. 6,576-78, then the expenses would exceed the prescribed limit and the election must according to ,the appellant be set aside on this ground. Dr. Singhvi addressed elaborate arguments on this point with the object of showing that the entire petrol purchased from the aforesaid firm must be held to have been purchased for the purpose of the election in question. We do not consider it necessary to deal with the arguments at length because the charge must fail for want of evidence connecting this item of expenditure with the election. The High Court has observed in 1his connection : "The petitioner has not adduced any evidence on this point except that of Daulatrao (P.W. !) who has also filed extracts of accounts of petrol and oil etc. purchased by the returned candidate from his master MI s A. J. Khanuja and Sons, Dewas during the releV'ant period. 832 SUPREME COURT REPORTS (1971] SUPP. s.c.R. Neither these extracts nor the evidence of this witness establishes the additional expenditure of Rs. 2000 I· as pleaded by the petitioner. The returned candidate Shri Krishnajirao Pawar (R.W. 17) has deposed that at the relevant time he owned two jeeps, five cars, one tractor and one pick-up van and agricultural land of about 500 acres. He also deposed that during the period of this bye-election he used only the jeeps for election propa­ ganda but petrol was purchased not only for the jeeps but for cars also which were used for house-hold purpo­ ses. He further deposed that Diesel was used for agri­ cultural purposes. His testimony further shows that he had instructed Mis A. J. Khanuja and Sons Dewas that petrol and oil purchased for to the election purposes should be marked distinctly and, therefore, he used to sent the counter-foil for purchase of eetrol and oil which used to be marked with latter 'g' to indicate that the same were purchase for election purposes. About marking, the petitioner's witness, Daulatrao (P.W. I) says something. The total costs of the marked items so called out from the extracts (Ex. P. I and P. 2) have not been shown to be an additional expenditure and not covered b) the election expenses return filed by Shri Krishnaji Rao Pawar (R.W. 17). He is the ruler of Senior Dewas State, possessed several vehicles at the relevant time and, therefore, un­ doubtedly needed petrol and oil for them, as also oil for traietor and pick up van during the said period for his domestic purposes and agricultural purposes be­ sides election purposes. The evidence of Daulatrao (P. W. !) himself would show that in the month of April 1968 when there was no hectic activity about the election. The cost of petrol and oil purchased by him during that month amounted to Rs. 2604-12 Paise. That would indicate that he requires Jar3e quantity of petrol and oil for his motor vehicles, oil engine etc. used for domestic and agricultural purposes. It is tme that the extracts of accounts (Ex. P. I and P. 2) show that cost of petrol and oil purchased from 31-5-1968. was about Rs. 2250 /- but it is impossible to believe that the entire cost was incurred in connection with this elec­ tion. I hold that the petitioner has failed to establish that the returned candidate had incurred or authorised additional expenditure of Rs. 2,000/- from 31-5-1968 to 15-6-1968 in connection with his election and I decide this. issue as not proved." MANOI LAL v. PAWAP, (Dua, J.) 833 The reasoning and approach of the High Court is unexcep- A. tionable and nothing urged by Dr. Singhvi has persuaded us to disagree with the High Court's conclusions. These were the only points urged at the bar in support of the appeal. As we find all of them to be without substance, thl appeal fails and is dismissed with costs. a V.P.S. App,eal dismisH«. 53-1 S. C. lndia/71