N. C. ZELIANG versus AJU NEWMAI & 2 ORS

Citation: [1981] 1 S.C.R. 631 · Decided: 05-09-1980 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

'. , .. 
[Y. 
N. G. ZELIANG, 
AJU NEWMAI & 2 ORS. 
September 5, 1980 
V. CHANDRACHUD, CJ., S. MURTAZA FAZAL ALI 4NP 
. 
A. D. KOSHAL, JJ.] 
: '.631 
. 
Representation of the People Act 1951-Section 123(6)-Scope of-Pre• 
ponderance of probabilities-If sufficient to prove allegation of corrupt practice. 
!':A 
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 
B 
c 
.D 
E 
F 
G 
H 
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 
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'. 
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, 
· 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. 
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

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