Holding

A corrupt practice under s.123 of the Representation of the People Act must be proved beyond reasonable doubt, and the petitioner’s evidence was insufficient, so the election was not set aside.

Summary

In the 1977 Nagaland Assembly election, N.C. Zeliang was declared elected but the defeated candidate Aju Newmai filed an election petition alleging that Zeliang committed corrupt practices by filing a false expense return and exceeding the permissible election expenditure limit, as well as by holding feasts to induce votes. The Gauhati High Court set aside Zeliang's election based on these allegations. On appeal, the Supreme Court held that a charge under section 123 of the Representation of the People Act is a quasi‑criminal offence and must be proved beyond reasonable doubt with clear, cogent evidence, not merely on a pre‑ponderance of probabilities. The Court found that the petitioner’s evidence was hearsay, lacked personal knowledge, and the diary was not produced, thus failing to meet the required standard. Consequently, the High Court’s finding of corrupt practice was unsustainable and the election was not voided.

Issues considered

Whether the petitioner proved the allegation of corrupt practice under s.123(6) of the Representation of the People Act (expenditure exceeding the limit) beyond reasonable doubt.
Whether the evidence regarding the alleged feast (bribery) under s.123(1) was sufficient to establish corrupt practice.
Whether the High Court erred by applying a pre‑ponderance of probabilities standard to a charge of corrupt practice.
Whether the appellant himself held the feast or it was organized by an agent, and the relevance of that to the charge.

Legislation cited

Representation of the People Act, 1951s. 123(1), s. 123(5), s. 123(6), s. 77

Subjects

Election lawCorrupt practiceRepresentation of the People ActBurden of proofCriminal standard of proofElection expensesBriberyFeastHearsay evidence

Judgment

'. , . : '.631

!':A

N. G. ZELIANG,

AJU NEWMAI & 2 ORS.
September 5, 1980
[Y. V. CHANDRACHUD, CJ., S. MURTAZA FAZAL ALI 4NP
. A. D. KOSHAL, JJ.]
. Representation of the People Act 1951-Section 123(6)-Scope of-Pre•
ponderance of probabilities-If sufficient to prove allegation of corrupt practice.
In the elections to the State Assembly hi 1977 the appellant was declared
, elected. The election·petitioner, who was one of the defeated candidates, alleged
in his. petition that the· appellant had filed, a false return of the. expenses and :. C
. thereby committed corrupt practice within the contemplation of section 123(6)
of the Representation of the People Act, 1951. Accepting the allegation the
· High Court .set aside his election.
Allowing the appeal.
HELD : (1) The High Court has not made ~ny attempt to determine whether
there was any legal and acceptable evide'nce to prove corrupt practice alleged CD
. against the appellant. It is well settled that a charge under section 123 of the
Act must be proved by clear and cogent evidence ail a charge for a criminal
offence. It is not open to the Court to hold that a charge of corrupt practice
is proved merely on a preponderance of probabilities but it must be satisfied
that there is evidence .to prove the charge beyond a reasonable doubt. [635 B-D]
K. M. Mani v. P. l. Antony & Ors. [1979] 1 SCR 701 referred to.
(i) In the instant case the petitioner himself had no personal knowledge as ·I:
to the actual expenses in hiring taxies and his source of information was based
on what others said. The evidence Jed by the petitioner falls far short of
the, standards .required by law. (636 D, 637 E]
(ii) The petitioner claimed that he .maintained a diary of the electioneering.
· Yet he did not produce it in Court from which a natural presumption arises
that if he haq produced the diary it would havti gone against his case. ".y
. [637 G-H]
(2) Corrupt practice being in the nature of a fraud, it is not permissible
to plead one kind of fraud or one kind of corrupt practice and prove another
though they may be inter-connected. The High Court has rightly found that
the petitioner pleaded that it was the appellant who had held a feast at which
he invited his voters and exhorted them to vote for him. But the evidence
Stows that the appellant had not held the feast but it was hosted by one G
· of his agents at which the appellant was present and, therefore, it could not
be proved that the feast was held at the instance of the appellant. [638 G-
m~ .
CIVIL APPELLATE JURISDICTION : . CivH Appeal No. 1679 of 1979.
From the Judgment and Order dated 15-5-1979 of the Gauhati
High Court in Election Petition No. 7 /78. H
S.S. Ray, N. R. Chowdhary and Parijath Sinha for the Appellant.
R. Karanjawala and P. H. Parekh for Respondent No. 1.
632 SUPREME COURT REPORTS [19811 1 S.C.R.

A The Judgment of the Court was· delivered by
FAZAL Au, J.-This election appeal is directed against a judgment
dated May 15, 1979 of ·the Gauhati High Court by which the High
Court accepted the election petition filed by the petitioner Aju Newmai
and set aside the election of the appellant, N. C. Zeliang who had been
B declared elected from the No: 6 Tening Assembly Constituency of the
State of Nagaland. For short, the respondent No. 1, namely, the elec- .
tion petitioner in the High Court, shall be hereinafter referred to as
the 'Petitioner' and N. C. Zeliang, who had won .the election. as the
'appellant'.

c The elections were held in the year 1977 and were contested by
the petitioner, the appellant and others. The appellant contested the
election as a Congress candidate with the symbol of 'cow and a 'calf'
whereas the petitioner contested on the ticket of the United Democratic
Front (U.D.F.) whose election symbol was 'Cock'.. The other candi-
. dates in-the field were Jangkhosei and Paokholun. We are, however,
.D · not concerned with these candidates. It appears that the appellant
polled 2224 votes as against the 2207 votes polled by· the petitioner
and thus defeated the petitioper by a margin of 17 votes, the total
votes in the constituency being only 5,000. The poll took place on
18-11-1977 and the last date for filing the nomination paper was
24-10-1977.
E
Being aggrieved by the declaration of the appellant as having been
duly elected to the Assembly, the petitioner filed an election petition
on 5-1-1978 in the High Court challenging the election of the appellant
on several grounds including the allegation that he had filed a false
. return of the expenses and had incurred much more expenses than
F fixed by the authorities concerned. The petitioner also alleged a
number of other corrupt practices which had been committed by the
appellant in the course of the election.
The appellant in his written statement strongly refuted all the
allegations made by the petitioner and submitted that he had com-
mitted no corrupt practice and that the return which he bad filed to
G
the District Election Officer was absolutely correct and the expenses
incurred by him were well below the pennissible limit.
A large number of issues were framed by the High Court but the
· High Court appears to have accepted the election petition only on
one issue, viz., issue No. 4, which related to the corrupt practice as
H contemplated by s. 123(6) of the Representation of the People Act
(hereinafter referred to as the 'Act') in incurring the expenditure ex-
ceeding . the permissible limit which amounted to a contravention of
N. c. ZELIANG v. AJU NEWMAI (Fazal Ali, /.) 6 33

s. 77 of the Act. The other allegations made by the petitioner were
held by the High Court as not proved. · ·
The learned counsel for the petitioner, who argued this case with
tenacity and ingenuity, was unable to support the allegation made by
the petitioner on any other issue framed by the court except issues
No. 4 and 5. As the pivotal controversy in the instant case rests on
issue No. 4, we would like to take up the finding of the High Court
on this issue first. Issue No. 4, as framed by the High Court, may
be extracted as follows : -
"Whether the Respondent No. 1 committed corrupt practice,
as defined under sec. 123(6) of the Representation of the People
Act, 1951, by incurring or authorising expenditure exceeding the
c
permissible amount, in contravention of section 77 of the said
Act, as alleged in paragraphs 10, 11 Ground No. (JI) and Sche-
dule B to the Petition?
If so, is the election of Respondent No. 1 liable ·to be set
aside?"
This issue was based on the plea taken by the petitioner in para·
graph 10 and ground No. II as also Schedule B to the petition and
it may be necessary to traverse the allegations made .by the petitioner
regarding this issue. Paragraph 10 appears to be an omnibus state·
ment which contains a number of grounds including the question of E
, incurring unauthorised expenditure with which alone we are con·
cerned for the present, and may be extracted thus :-
"That the petitioner also states and contends that the election
of Respondent No. 1 is liable to be declared void as he com·
mitted several corrupt practices, namely (I) the corruPt practice
as defined in sub-section (6) of section 123 of the Act, that is to
say, incurring or au1horising expenditure in contravention of sec·
tion 77 of the Act; (2) the corrupt practice of bribery as defined
in sub-section (l) of section 123 of the Act; (3) the corrupt prac-
tice of hiring or procuring vehicles for the free conveyance of
electors to and from certain polling stations within the said
G
Assembly Constituency as defined in Section 123(5) of the Act. ·
The material facts and particulars of these corrupt practices are
set out hereunqer.'.'
Ground No. II of the petition may be extracted as follows :
"For that the Respondent No. 1 committed the corrupt prac-
tice as set out in sub-section· (6) of section 123 of the Act by. H
incurring or authorising expenditure in contravention of sec·
tiori 77 of the Act."
634 SUPREME COURT REPORTS [1981] 1 S.C.R.

.A · The material particulars relating to the allegation made in· Ground ·
No. II are contained in Schedule B to the petition, the relevant portion
of which may be extracted thus : -
I
"B-1. In his return of elect.ion expenses, the Respondent No.· ....
1 returned the total expenditure of Rs. 1323.69.
B

B-3~ Expenses incurred in connection with hire charges of
vehicles and petrol and mobil oil consumed on account of these··
vehicles and in purchasing accessories : -
(i) The respondent hired a jeep bearing No. NLK 4308
from Wilubo of Dimapur and· paid hire charge ·of Rs. 3000
including the cost of the driver to the said owner. ...
(ii) On 3-11-1977 the Respondent No. 1 purchased two
tyres valued at Rs. 720 from the firm Motilal Dungarmall of
Dimapur and one exide battery from the firm Bakliwa.1 and
D Gangwals of Dimapur at the cost of Rs. 540 for the purpose
of the aforesaid vehicle No. NLK 4308.
(iii) On 28-10-1977 the Respondent purchased petrol
worth Rs. 240 for the vehicle No. NLK 6284 used by him
for the purpose of election from the firm of Pulchand Trilok-
E chand, Dimapur under voucher No. 270800."
We have already mentioned that all the allegations made by the peti-
tioner were stoutly denied by the appellant.

Thus, from the allegations made by the petitioner so far as issue
No. 4 is concerned, the gravamen of the charge against the app~llant
F
was that while he had shown a total expenditure of Rs. 1323.69 in
his return filed before the District Election Officer yet he had incurred
expenditure far exceeding the same Paragraphs B-3(i), (ii) and (iii) of
Schedule B to the petition, extracted above. show that the appellant
had incurred a total expenditure of Rs. 3960. According to the peti-
G tioner these expenses were incurred on the hiring of jeeps and pur-
chasing tyres and other accessories for jeep NLK 4308 which was used
for the purpose of election campaign. The permissible limit b~ing
Rs. 2,500 only, ·the expenditure incurred, according to the petitioner,
exceeded the limit by Rs. 1460. It was also alleged by the petitioner
that jeep No. NLK 4308 was hired by the appellant .from one Wilubo
H of Dimapur who was paid hiring charges of Rs. 3,000. We m]ght
state here that according ~o the finding of the High Court, the peti-
tioner himself admitted in his evidence that the expenditure incurred
.N. c. ZELIANG v. AJU NEWMAl (Fazal Ali. J.) 635,.
l \ -, I

lfo.r: the pur~hase of tyres and ·battery (Rs .. 720 and Rs. 540 respec- A.
tively) were included in the amount of Rs. 3;000; the balance being
the hire charges. The petitioner, therefore, contended that, at any rate,
,J,. the appellant had exceeded the expenses incurred in the election by
at least Rs. 500, a fact which, according to him, he had proved to the
satisfaction of the court.
B.
We have gone through the judgment of the High Court carefully
and what we find is that the High Court has not made any attempt
to determine whether there was any legal and acceptable evidence to
proYe the corrupt practice alleged against the appellant. It is now well
settled by a large catena of authorities that a charge: under s. 123
of the Act must be proved by clear and cogent evidence as a charge c.'
for a criminal offence. It is not open to the court to hold that a
<:harge of corrupt practice is proved merely on a preponderance of
• probabilities but it must be satisfied that there is evidence to prove
'the charge beyond a reasonable doubt. The electoral process in this
-country is an extremely expensive one and by declaring the election D
'Of a candidate null and void, the entire process, so far as the candi- '
date is concerned is set at naught resulting in re-election. Such a
course should be adopted only when the allegation of corrupt practice
is proved conclusively. In K. M. Mani v. P. J. Antony & Ors.(1), this
Court while referring to a large number of cases observed as follows : -
"An allegation regarding the commission of a corrupt prac- E
tice at- an election is a very serious mll!tter not only for the candi~
date but for the public at large as it relates to the purity of the
electoral process.

F
In taking that view the trial court lost sight of the require-
ment that the allegation regarding the commission' of a corrupt
practice is in the nature of a quasi criminal proceeding which
has to be e.>tablished beyond reasonable doubt and not merely
by preponderance of probabilities. ·
G
......
:.

In 'Mohan Singh's case (AIR 1964 SC 1366) it has been
held that the onus of proving the commission of a corrupt practice
is not discharged on proof of mere preponderance of probability
as in a civil suit, and it must be established beyond reasonable H
doubt by evidence which is clear and. unambiguous.
(1) [1979] 1 SCR 701.
636 , SUPREME C'OURT REpORTS [1981] 1 S.C.R

A In Balakrishna (1969) (3 SCR 603) it has been held that
while consent may be inferred from circumstantial evidence,
the circumstances musqxiint unerringly to the conclusion and
must admit of no other explanation. for a corrupt practice
must be proved in the same way as a criminal charge ........ .
The election petitioner must therefore exclude every hypo-
B thesis except that of guilt on the part of the returned candi-
date or his election agent, and the trial court erred in basing
its finding on a mere probability."
It is not necessary to multiply authorities on this point because the law
has been fully crystallised on the subject.
c The petitioner who was examined as PW 1 has clearly stated in
his evidence that he was told by Wilubo that the appellant had hired
Jeep No. NLK 4308 from him for a lump sum of Rs. 3,000 which
were the hire charges. The witness further admitted that Wilubo
was his relation being the brother of his elder brother's wife and was
staying at Dimapur. Thus, the petitioner himself had no personal
D
knowledge as to the actual hiring charges paid to Wilubo by the ap-
pellant and his source of information is based on what he heard from ,
Wilubo. Wilubo, however, who was examined as a witness for the
appellant, has denied these allegations and has also denied having
told the petitioner that his Jeep was hired by the appellant, much 1
E less for a sum of Rs. 3,000.
Mr. Karanjawala, appearing for the petitioner, vehemently con·
tended that the manner in which Wilubo was examined by the appel-
lant as his witness shows that he was not speaking the truth. It was
pointed out that, to begin with, Wilubo was cited as a witness for
the petitioner and summons were issued to Wilubo but he evaded
F
service and ultimately a warrant had to be issued when the counsel
for the appellant, informed the court that Wilubo would be examined
as a witness for the appellant. Our attention was also drawn to the
cash memos. which show that the tyres costing Rs. 720 and battery
worth Rs. 540 were purchased. Even accepting this part of the case,
G all that has been shown is that a sum of Rs. 1260 was spent so far
as jeep No. NLK 4308 was concerned. But this fact by itself was
not sufficient to prove the allegations made by the petitioner against
the appellant. It had further to be shown .by the petitioner to the satis-
faction of the court that Wilubo had charged a hiring charge of Rs. 3,000
or nearabout that from the appellant and that he himself had purchased
H the tyres and battery. Wilubo had denied this allegation, the evidence
of the petitioner on this point is purely hearsay and, therefore, in-
admissible in evidence. It was, however, argued by Mr. Karanjawala
N. c. Z~LIANG v. AJU NEWMAI. (FazaJ Ali,!.) 637

that from the evidence of the witnesses produced by the petitioner,' . ·A
it would appear that Jeep No. 4308 was freely used for a large number
of days from which it could. be safely presumed that the charges for
the jeep must have been in the region of Rs. 3,000. In the first place,
there is ·no clear evidence of any of the witnesses examined by the
petitioner to show the exact period for which the jeep was used or
the distance which it had traversed nor is there anything to show that. ·B
such an amount as Rs. 3,000 could have been paid as hiring charges
to Wilubo by the appellant. The evidence merely shows that the
jeep was used either on the election day, or a day after or a day
before that. There is no evidence to show what were the customary
hiring charges for jeeps or cars in the localities where the jeep is said c .
to have been used by the appellant. It is, however, suggested by Mr.
Karanjawala that as Wilubo appears fo be a man of small means, it
must be presumed that he must have made a lot of money by hiring
out the jeep to the appellant. This is also a pure conjecture and can-
not, be pressed into service for unseating the appellant which can be
done .only if the evidence, even if it consists of circumstancial evidence o·
must be clear and conclusive. We have been taken through the evi·
dence. of PWs 1, 5, 6, 13 and 20 but none of these witnesses gives
us any idea of the prevailing. rate of hire in the localities concerned
which could have been paid by the appellant to Wilubo for the jeep.
The evidence led by the petitioner falls far short of the standards
required by law. · E
Another important circumstance that militates against the case of
the petitioner is that while the petitioner admits in his evidence that
he used to maintain some sort of a diary of his electioneering yet he
had not produced it on the plea that he did not remember where he
had kept the diary. In this connection, the petitioner deposed as F
follows : - ·
"I had maintained some sort of a diary of my electioneering.
The diary was of course not maintained regularly. I do not re·
member where I kept the diary. I have not filed the same in
Court."
.G
It is, therefore, manifest that the diary would have been the best
'y evidence to show that as to how many days the jeep was used or for
what distance and as also the hiring charges paid by the appellant to
Wilubo. The petitioner has withheld the diary and has not filed the
same in the court from which a natural presumption arises that if he'
. had produced the diary it would have gone against his case. Even PW 6 ·H
who, according to the petitioner, was an independent witness, has merely
said that he knew that the appellant had used a jeep but he does not
1 20-647 S.C. India/80
638 SUPREME COURT REPORTS [1981] 1 S.C.R.

A either give the dates when ,the jeep was used or the distance which
it had traversed. He, however, further admits that although he had
seen the jeep he did not see the appellant, Zeliang in it. This, therefore,
falsifies his allegation that the jeep was used· by the appellant. The
evidence of other witnesses on this point is also not helpful to the
petitioner and is even more vague than the evidence of PW 6. In fact,
B there is some evidence to show that the appellant had visited various
places in his constituency even on foot. In the absence of such
evidence it was not open to the lligh Court to accept the speculation
of the petitioner that the appellant roust have incurred hiring charges
for the jeep exceeding Rs. 2,000 or so.
c The appellant has denied having incurred any expenditure on the
purchase of tyres and battery but taking the case of the petitioner at
the highest and assuming that an expenditure of Rs. 720 for the tyres
and Rs. 540 for the battery was incurred a~ is proved from the cash (
memos, produced by the petitioner, there is no reliable or credible
evidence to show that the appellant had himself met the cost of these
D articles and used them for his election campaign. Thus, the expenses
indicated above are not at all relatable to the jeep in question. In
these circumstances. therefore, we are clearly of the opinion that there
is no legal evidence to support the corrupt practice alleged by the
.petitioner in that he had incurred expenditure beyond Rs. 2,500 and
thus the petitioner has not been able to prove that the return of
E expenses filed by the appellant before the District Election Officer was
wrong or inaccurate and in excess of the permissible limit. Hence, the
finding of the High Court on this point cannot be sustained.
Realising this difficulty, Mr. 'Karanjawala strongly pressed issue
No. 5 framed by the High Court on the basis of one of the allegations
made by the petitioner. The High Court has, however, clearly held
·F
that the allegation which formed the subject-matter of issue No. 5 has
not been proved at all by the petitioner. Mr. Karanjawala assailed the
finding of the High Court on this point and submitted that this allega-
tion was clearly proved by the petitioner. There, however, appears
to be an insurmountable obstacle in accepting the contention of the
G counsel for the petitioner on this point. It is well settled that an
allegation of corrupt practice must be clearly pleaded in the petition
and the particulars given in the schedule. Corrupt practice being in
the nature of a fraud, it is not permissible to plead one kind of fraud
or one kind of corrupt practice and prove another though they may
be inter-connected. The ,.High Court has rightly found that as the
.H petitioner pleaded 'that it was the appellant himself who had held a
feast, invited his voters and exhorted them to vote for him, the evi·
deuce shows that the appellant had not held the feast at all but it
N. c. ZELIANG v. AJU NEWMAI (Fazal Ali, J.) 639

was hosted by one of his agents in which the appellant Fas present A
and therefore it cannot be presumed that .the feast was held at the
instance of the appellant. The High Court held that .the allegation
pleaded was not proved by the evidence which in fact was contrary
.~. to the pleadings and therefore no notice of such a corrupt practice
could be taken. With due .respect, we find ourselves in complete agree-
ment with the reasons given bJ:. t?e High Court on this aspect of the B
matter. 'Issue No. 5 may be .extracted thus : -
"Whether Respondent No. 1 committed corrupt practice of
1

bribery, as defined
•
under section 123(1 ){a)(b)I 'of the Representation
,
of the People Act, 1951 by offering himself or by his agents with his
c~nsent, gratification by way of entertaining the electors of No.· 6 c
Tening Assembly Constituency of the Nagaland Legislative Assem-
bly with feasts, with the object, directly or! indirectly, of inducing
:them to vote for the Respondent No. 1, as alleged in paragraphs iO,
11 (Ground No. III) and Schedule C to the petition?
If so, is· the election of Respondent No. 1 liable to be set
aside?" .D

in Schedule C the particulars given show that the appellant gave
a feast on 2-11-77 and on 31-10-77 and on 12-11-77 to the electorate
and purchased a pig on all these occasions for hosting the voters. The
•
evidence led, however, shows that no feast was hosted by the appellant
at all but was done by some other person who was his agent while E
the appellant was present. It is, therefore, manifest that the exact
corrupt practice pleaded by the petitioner in Schedule C was not proved
·~ - but was in direct variance with the evidence which he led on this ·
point. On this ground alone, therefore, the petitioner would have to
be put out of court so far as issue No. 5 is concerned. No other
F
point was pressed before us by the counsel' for the parties,
For the reasons given above, we are satisfied that there is no legal
evidence to prove the corrupt practice alleged against the appellant
that he had exceeded the limit of expenditure fixed in using the jeep,
even if he had taken it from Wilubo. Issue No. 5 also was rightly
held by the High Court not proved. In this view of the matter, the G
appeal is allowed. The order of the High Court setting aside the
election of the appellant and unseating him is hereby quashed. In
the peculiar circumstances of the case,· there will be no order as to
costs.
H
~

P.B.R. Appeal Nllowed.