Judgment-

R. S. SARKARIA

( 1 ) THIS appeal is directed against the judgment, D/- 2-1-1973 of the High Court of Punjab and Haryana, declaring void the election of the appellant Bhagat Ram @ Bhagtu to the Haryana State Assembly. The material facts are these:

ELECTION to the Haryana State Legislature took place in March 1972. Bhagtu Ram appellant, Bhagat Ram respondent and three others contested the election as rival candidates from Kalayat Constituency (Reserved ). The result was announced on 12/03/1972. Appellant secured 17032 votes as against 15812 polled by Bhagat Ram, respondent herein. Appellant was declared elected.

( 2 ) BHAGAT Ram respondent filed an election petition under the Representation of the People Act, 1951 (hereinafter called the Act) challenging the election of the appellant on three grounds. Of them, only these two are relevant for the purpose of this appeal: (1) The returned candidate and his workers with his consent published a statement of fact (poster, Exh. Prosecution witness 1/1) which was false and which he either believed to be false or did not believe to be true and that statement relating to the personal character and conduct of the petitioner, was reasonably calculated to prejudice the prospects of the petitioners election and thus he committed a corrupt practice under Section 123 (4) of the Act. (2) The returned candidate incurred or authorised, in connection with his election, expenditure to the tune of Rupees 15,000/-, in contravention of the requirements of Section 77 of the. Act and thus committed the corrupt practice under Section 123 (6) of the Act.

( 3 ) ISSUES 1 and 2 framed by the learned trial Judge relate to the first charge, and Issue 6 to the second. Issues 1 and 2 were decided against the petitioner. Under Issue 6, it was held that the returned candidate had incurred, in connection with his election, expenditure of Rs. 93. 02 in excess of the permissible limit of Rs. 9,000. 00. On this short ground the election petition was allowed, and the election of the returned candidate was set aside. Hence this appeal.

( 4 ) IN the statement of Account, Ex. Prosecution witness 6/1, filed under Section 78 of the Act, the appellant showed the incurring of a total expenditure of Rs. 1,668. 92 in connection with his election. The permissible limit being Rs. 9,000. 00, the election-petitioner, in order to succeed, had to prove that the returned candidate had incurred or authorised the election expenses, aggregating more than Rs. 7331. 08, in addition to those disclosed in the return Ex. Prosecution witness 6/1.

( 5 ) THE learned trial Judge found that the returned candidate had incurred or authorised, in connection with his, election these items of expenditure, which are not covered by his return of election expenses. Ex. Prosecution witness 6/1:

(I) Hire of jeep, HRB. 3638rs. 2800. 00

(II) Hire of jeep, HRJ-698rs. 2800. 00

(III) Hire of Taxi DLY-371rs. 720-00

(IV) Excess amount of petrol and mobile oil purchased from M/s. Chiranji Lal Sardha Ram --Rs. 734. 71

(V) Amount of petrol etc. purchased from M/s. Kali Ram Mittal and Brothers, Narwanars. 369. 39

( 6 ) SHRI Kapil Sibal, learned Counsel for the appellant assails the findings of the High Court regarding items (i), (ii) and (iv) only.

( 7 ) A peculiar feature of the case, as rightly stressed by Shri Sibal, is that annoyed by the post-election somersault taken by the appellant, his principal workers, Suresh Chander, Lal Chand, Ch. Inder Singh, Advocate and others, who had steered his election campaign to victory at the Polls, are now making a concerted effort to see him unseated through the instrumentality of the election petition. Although at the outset - proceeds the argument - the learned trial Judge noticed this feature which overshadows the entire case, he overlooked it while appraising the oral evidence of the drivers of the jeeps, HRB-3638 and HRJ-698. Counsel maintains that the entire evidence in this case should have been appraised against the ab