Devjibhai Sadabhai Parmar v. Becharbhai Parmabhai (SC)
BS461539
SUPREME COURT OF INDIA
Before:-M. Hidayatullah, C.J. and G.K. Mitter, J.
Civil Appeal No. 22 of 1968. D/d.
27.8.1968.
Devjibhai Sadabhai Parmar - Appellant
Versus
Becharbhai Parmabhai - Respondent
For the Appellant :- Bishan Narain, Senior Advocate (D.N. Mishra, Advocate for J.B. Dadachanji and Co., with him).
For the Respondent :- S. V. Gupte and R.M. Hazarnavis, Senior Advocates (K.L. Hathi and Atiqur Rehman, Advocates of Hathi and Co., with them).
JUDGMENT
M. Hidayatullah, C.J. - This is an appeal by the successful candidate at the Vavla Legislative Assembly Constituency election in the Fourth General Election whose election has been set aside. The notification appointing the dates of the election was issued on 20th December, 1966. Three candidates offered themselves for the election and the poll was taken on February 15, 1967. The results were announced on February 23, 1967. The successful candidate Devjibhai Sadabhai Parmar obtained 21,352 votes, Dr Bhanuprasad Pandya received 14,194 votes, and the third candidate Gulabrai Hiralal obtained 1932 votes. The present petition was filed by an elector. The main grounds of attack which formed the subject of decision in the High Court were that the election expenses of the successful candidate were falsely declared by him and exceeded in the total Rs. 8000 allowed under the law, and further that he had used the portrait of Mahatma Gandhi, which is a national emblem, contrary to the prescriptions of the election law. The second point was not pressed before us by the respondent against whom the decision went in the High Court. Therefore the dispute before us is whether the High Court was right in holding that the election expenses had been wrongly declared and that the expenditure was above the mark.
2. The successful candidate had declared Rs. 5816.11p. as his total expense. Five items were in dispute but we need not refer to four of them because even if they are held against the returned candidate, his expenses do not go above Rs. 8000. The important item is Rs. 2286.5p. said to have been spent by him on the repair of five cars used by him at his election without disclosing that expenditure. That, taken with the declared expenses, takes the total amount above Rs. 8000 and if this point succeeds, the appeal must fail. On the other hand, if this point fails, the appeal must be allowed. This was the admitted position at the bar before us. We accordingly proceed to consider this point.
3. The returned candidate had shown in his return of expenses the petrol account. That account discloses the number of cars he had been using together with the petrol, oil etc. which had to be put in them. The five cars which are the subject-matter of dispute in this appeal were said to have been repaired by Lalabhai (PW 4) who is the proprietor of a motor garage called Gujarat Champion Automobiles at Ahmedabad. These cars were admittedly used by the returned candidate in his election campaign, some more and some less. Some of them were also otherwise got repaired by him and the cost of repairs was shown in the name of another garage known as Bhagwati Garage situated at Bawla. These repairs are small and represent running repairs such as cars in intensive use sometimes require. Lalabhai's evidence is to the effect that four cars in question were brought to his garage by a person who said that he was the Mehtaji of the returned candidate and work was entrusted to him for repairs. Lalabhai has produced a bill book Ex. C, which contains 5 bills for the repair of five cars. These bills show major repairs and the bills in question were for Rs. 295, Rs. 325, Rs. 510, Rs. 808 and Rs. 347 omitting the paises. The repairs involved in one case changing of the valves and the facing of the valve seats, in another the change of brake liners, in the third the change of crown wheel and pinion, in the fourth renewing the clutch plate and in the fifth the change of the crown pinion and rewinding of the dynamo. These repairs are obviously not small repairs required in the running of the car. They are major repairs and the question that arises is whether the testimony of Lalabhai supported by his bill book is sufficient to establish that there repairs were ordered by the returned candidate who has not shown the charges in his return.
4. It may be mentioned here that the election petitioner did not enter the witness box. So we do not know how he came to know of these repairs. The question, however, is one of judging the credibility of Lalabhai upon the general probabilities of the case together with such critical evidence in contradiction thereof as may be found on the record. The probabilities arise from the fact that no person would use cars right in the middle of his election which required major repairs necessitating their lying out of use for a considerable length of time. The critical evidence is that the petrol bills give the dates on which these cars were on the road and these dates can be compared with the dates of the actual repairs. If these dates are contradictory, then it may lead to the inference that there must be one side or the other making out a false case and we have then to decide which side it is.
5. We shall now go into this matter a little more closely. Lalabhai is a small operator. His bill book consisted of about 30 bills and it was for a period from 12th January, 1963 to 18th July, 1967. Of these 30 odd bills, 5 are the bills in question. On an examination of the bill book as a whole, one finds that he was doing small repairs other than what he did to the cars in question. In fact, except for one or two bills, none of the bill approach anywhere near the figure which has been charged for the disputed repairs. Lalabhai explained that his bill book is not complete, because he gave bills only to persons who asked for them. In other words, his bill book is not a complete record of all the repairs done in his garage. This, at the very start, gives room for suspicion, because the bill book cannot be regarded as a regular document written from day to day in the ordinary course of business. All bills have to be given and he ought to have given them, regard being had to the requirements of the taxation laws. However, that is not the end of the matter. There is another fact that the returned candidate was using another garage for the repairs of his cars and there is no reason why he should turn to this garage for these major repairs. A reason is suggested that this might have been done with a view to hide the fact that these extensive repairs costing thousands of rupees were effected and were not to be disclosed in the election return. This, of course, is a possible reason. On the other hand, it may be mentioned that having known the numbers of the cars in use a small garage might have been induced to prepare these bills to furnish evidence to disprove the election returns and to prove that more money was spent on the election than was actually declared. Really speaking, the case lies between these two alternatives, and having considered the evidence of Lalabhai and having looked into the bill book and the other evidence in the case, we are satisfied that the case of the returned candidate thus these bill books are not reliable and the testimony of Lalabhai equally so, is correct and the conclusion should have been the other way.
6. The five cars which were repaired were GJA 3695, 2105, 3225 and GJE 7246, 5762. The bills for these cars were dated 2nd, 4th, 8th, 14th and 10th February, respectively. The poll was on 15th February, 1967. One of these cars which bore No. 7246 was a station wagon. It required repairs to the tune of Rs. 808. The story in regard to this car is that it had broken down between Bawla and Kesardi and had to be repaired on side. The repair bill shows that the car required a new crown pinion set and a right-side wheel shaft together with the other necessary accessories such as ball bearings, oil-seal etc. Now it is quite obvious that this is a very major repair requiring some time. The evidence of Lalabhai in the first instance was that the repair was made at the site of the break-down; later he changed and said that the damaged parts were taken out and brought to his garage at Ahmedabad and were repaired there and the repaired parts of the car were assembled at the site. Now all this must have required considerable time and we can take judicial notice of the fact that this is a major repair. That apart, it required an outlay of money in the buying of new parts to the tune of about Rs. 500. Lalabhai does not appear to be a person who could have advanced so much money on his own. He was, however, not asked who paid for the purchase of the parts. He was questioned from which shops he had bought the parts and he said that he did not obtain bills for the purchase. Therefore there is no connecting evidence for the purchase of the parts which were required for the station wagon. But the clinching evidence comes from quite a different source. It is the evidence of the returned candidate with the statement of expenses read with the vouchers. It is quite clearly proved that this station wagon was in use from the 9th to the 16th February barring 13th and 14th. The poll was on the 15th. Mr V. V. Gupte argued that this was the time when the station wagon must have been repaired. But it appears to us some what improbable, that these major repairs could have been effected so far away from the garage within the short time the car was not on the road. We are also impressed by the fact that if it was necessary to repair this car which had broken down between Bawla and Kesardi, the returned candidate would have rather used his regular garage at Bawla than gone to Ahmedabad and got the assistance of Lalabhai. Lalabhai does not appear to have been so well-equipped as to have made repairs effectively and within a short time. He admitted that often for a month or two at a stretch there is no business although he did say that in some months he did business of the order of Rs. 500. Why this garage should have been chosen in preference of Bhagwati's garage is not quite clear? Mr Gupte suggested that it might be because the returned candidate lived at Ahmedabad and the garage of Lalabhai was also there. However it is quite clear that the repair had to be done on the road side. One can understand all this if Lalabhai had a breakdown van and had taken the car to his own garage and effected the repairs there in record time. He does not say anything of the kind. On the other hand, he claims that the damaged parts were taken out of the car, brought to Ahmedabad, repaired and taken back to the site, and fitted there. He had only six employees in his garage and they were also not regular employees, because they were on daily wages. It seems therefore unlikely that this station wagon broke down on 13th or 14th and was got repaired through Lalabhai to be used again on the 15th. We think that the car being so much in use both before and after, this kind of repair would not have been needed, because the crown pinion when it wears out only gives some noise but does not stop the working of the car. This bill which is for Rs. 808 was prepared to swell the amount of expenses of the returned candidate and at a garage where he least suspected that there would be such a bill.
7. When we look at the other bills one by one, the amounts of which we have given earlier, we find the repairs are of an extensive kind. The first involved changing the brake liners requiring the draining of the brake fluid, the facing of the drums, riveting of the brake liners to the shoes, adjusting the brakes etc. and they require considerable time. Here also, the car which required this repair to be done was used between 7th January and 15th February. It ran on all the days excepting the 7th and 8th and it is said to have been repaired on the 8th. Mr Gupte suggests that gap of time is because these repairs were being carried out. It does not appear to us likely that this car would have run almost to the death before it was got repaired in the midst of election work. Adjustment to the brakes would have served the purpose for a few days and it was hardly necessary to change the brake-liners. People who embark upon their election programmes see to it that the cars are in good order and do not need major repairs. These major repairs right in the middle of the election campaign appear to be some what unusual. Similarly, the other three cars required extensive repairs. The clutch plate of one had to be renewed and in another the top gear had to be changed which meant taking down the gear box, opening it, taking out the gears and re-assembling them. This is a very long drawn out process and would have certainly required considerable time. Similarly, the renewal of the clutch plate and the clutch fingers is an extensive repair and it seems unlikely that it was undertaken during the course of the election when the cars were needed every minute. The last car required its valves to be changed and the valve seats cut. This also required the facing of the valve seats which, as we all know, is a very long drawn out operation. In view of these circumstances and considering that these cars were on the road most of the time, particularly the station wagon, we are not inclined to believe the testimony of Lalabhai when he says that he made these repairs for the returned candidate on these cars. In the light of all the circumstances of the case, we are satisfied that these repairs were not effected on these cars and that the evidence brought to prove these repairs is not trustworthy. As this is the only point on which the election of the returned candidate could be successfully challenged and as it fails, the appeal must succeed. We therefore allow it with costs here and in the High Court.
.