Madhya Pradesh High Court
Sharadendu Tiwari vs Ajay Arjun Singh on 23 August, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 EP NO.1 OF 2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON
ELECTION PETITION NO.01 of 2014
Between:-
Shardendu Tiwari, S/o Shri Padmapani Tiwari,
Aged about 40 years, R/o Villae Beldah, Post
Hanumangarh, Police Station Churhat, District
Sidhi (MP).
......PETITIONER
(By Shri Vikash Upadhyay, Advocate and
Shri Prakash Upadhyay, Advocate)
And
1. Ajay Arjun Singh S/o Late Arjun Singh, Aged
about 58 years, R/o H.No.225, Village Sada
Post Office, Tehsil Churhat, District Sidhi
(MP)
2. Ramnaresh Saket S/o Shri Rajbhan Saket,
Aged About not Known, R/o Gram Khariya
Post Badagaun, Tehsil Gudh, District Rewa
(MP)
3. Chandrabhan Jaiswal, S/o Budhimaan, Aged
about 36 years, R/o Gram Post Teeka Kala,
Tehsil/P.O.-Churhat, District Sidhi (MP)
4. Dadan Singh S/o Surya Prasad Singh Aged
about 55 years, R/o Gram Moura Post Office
Moura Tehsil Rampur Naikin, Police Station
Rampur Naikin, District Sidhi (MP)
2 EP NO.1 OF 2014
5. Daddulal S/o Vanshgopal Aged about 43
years, R/o Gram Dhakri Post Office Kamarji,
District Sidhi (MP)
6. Ramakant Pandey S/o Mudrika Prasad
Pandey, Aged about 67 years R/o Gram
Mamdar, Post Office Mamdar, Police
Station/Tehsil Rampur Naikin, District Sidhi
(MP)
7. Sampati Kumar Choudhary S/o Vishram Aged
about 43 years R/o Shivpurva Tehsil Gudh,
District Sidhi (MP)
8. Hameed Raja Ansaari S/o Sheikh Mohd. Raja
Ansaari Aged About 48 years R/o Near
Hanuman Mandir Amhiya Rewa Tehsil Hujur
Police Station Civil Line, District Rewa (MP)
9. Rampratap Yadav S/o Sobhai Yadav Aged
about 42 years R/o Choufaal Kothar District
Sidhi (MP)
10. Raghunandan Singh S/o Ramkaran Singh
Aged about 34 years Post Office Dihlee Police
Station Kamarji Tehsil Churhat District Sidhi
(MP)
11. Mahendra Bhaiya Dixit S/o Lalmani Dixit
Aged about 41 years R/o Gram Post Tala
Tehsil Majouli Police Station Majhouli
District Sidhi (MP)
12. Anand Pandey S/o Bhaiyalal Pandey Aged
about 44 years R/o Busi Post Office Badokhar
Police Station Churhat District Sidhi (MP)
13. Ramsiya Kol S/o Jalim Kol Aged Not Known
R/o Gram Churhat Ward-4 Tehsil/Police
Station Churhat District Sidhi (MP)
14. Anurag Singh S/o Chandrabhan Singh, Aged
about 26 years R/o Bichiya Dhoba Tola Ward
No.39 H.No.104/New H.No.117 Tehsil Hujur
3 EP NO.1 OF 2014
District Rewa (MP)
......Respondents
(By Shri P.D. Gupta, Advocate and Shri
Rashid Suhail Siddiqui, Advocate)
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Reserved on : 12.05.2022 Delivered on : 23.08.2022
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This petition coming on for final hearing this day, the court passed the following:
(J U D G M E N T) (23.08.2022) Invoking Section 80 read with Section 100 of the Representation of People Act, 1951 (in short the 'Act'), this petition has been filed by the petitioner questioning the election of respondent No.1 namely Ajay Arjun Singh - a returned candidate for Constituency No.76 Churhat, District Sidhi in general election of Madhya Pradesh Legislative Assembly held in 2013.
2. In the election of State Legislative Assembly held in 2013, respondent No.1 - an official candidate of Indian National Congress (INC) secured 71796 votes and declared 'elected' by a margin of 19356 votes. It is noted that the petitioner being an official candidate of Bhartiya Janta Party (BJP) secured 52440 votes and was closest rival-candidate of respondent No.1.
4 EP NO.1 OF 20143. The petitioner's whole pyramid of calling in question the election is based on the following three pillars:-
(i) Respondent No.1 incurred expenditure in contravention of Section 77(3) of the Act and as such, adopted a corrupt practice as per Section 123(6) of the Act.
(ii) Respondent No.1 appealed for votes focusing particular religion, which also comes within the definition of corrupt practice as per Section 123(3) of the Act.
(iii) Respondent No.1 distributed demand drafts during the course of election and as such, adopted the corrupt practice of bribery as per Section 123(1)(A)(b) of the Act.
4. In the election petition, the petitioner has articulated the facts including as to in what manner, respondent No.1 adopted corrupt practice by undervaluing the campaign material; concealing campaign material; its non-disclosure in the accounts and non-accounting the expenses made in public meeting of Shri Rahul Gandhi. As per the petitioner, it exceeded expenditure limit of Rs.16 lakh as fixed by the Election Commission. Averred further that admitted/declared expenses of election of respondent No.1 were Rs.13,67,560/- and it ran short of Rs.2,32,441/- and as per the allegations made by the petitioner, the amount spent in the election by respondent No.1 5 EP NO.1 OF 2014 was more than the maximum limit of Rs.16 lakh and as such, his election is liable to be set aside by declaring it 'void' on the ground of corrupt practice. However, according to petitioner, with the passage of time, the relief for declaring the election of respondent No.1 'void' has rendered infructuous, but the petition does survive pertaining to allegation of corrupt practice (being the electoral offence) pronouncing disqualification for a period upto six years.
5. In combat, respondent No.1 in his written-statement has refuted all adverse allegations made in the election petition by furnishing details supported by relevant documents and also submitted that the allegations made by the petitioner against respondent No.1 of corrupt practice are ill-founded as unsupportive of material evidence. Ergo, as per respondent No.1, the election petition being bereft substance, deserves dismissal.
6. At trial, this Court framed as many as 26 issues. Both the parties produced their witnesses, in that, the petitioner produced eight witnesses whereas respondent No.1 chose to examine six witnesses. Apt it is to reproduce the issues framed earlier, as under:-
1.(a) Whether the Poster (Large) mentioned under Paragraph 14(A) of the petition did not cost less than Rs.5/- per poster?
(b) If yes, its expense of Rs.7500/- should have been included in the election expenses of respondent no.1?
6 EP NO.1 OF 20142. Whether the Plastic Badge mentioned in Paragraph 14(C) of petition has been used by the respondent No.1 after filing his nomination and even till the date of election in the year 2013?
3. (a) Whether the minimum rate of the Orange Cap mentioned in Paragraph 14(D) of petition was Rs.30/- per Cap?
(b) If yes, whether Rs.4,50,000/- - 75,000/- =Rs.3,75,000/- more should have been added to the election expense of respondent no.1?
4. (a) Whether the dark Orange Cap/Red Cap (2000 pieces) mentioned in Paragraph 14(D) of petition was used by the respondent no.1 after filing his nomination and even till the date of election in the year 2013?
(b) If yes, whether its estimated cost of Rs.60,000/- should have been added to the election expenses of the respondent no.1?
5.(a) Whether the minimum rate of the Pocket Calender mentioned in paragraph 14(E) of petition was Rs.2/- per piece?
(b) If yes, whether its estimated cost of Rs.50,000/-
- 12,500/-=Rs.37,500/- should have been added to the election expense of respondent no.1?
6. (a) Whether the minimum rate of questioned Sticker mentioned in paragraph 14(F) of petition was Rs.2/- per piece?
(b) If yes, whether its estimated cost of Rs.20,000 - 5000 = Rs.15,000/- more should have been added to the election expenses of respondent no.1?
7. (a) Whether the minimum rate of questioned Face Mask (Mukhauta) mentioned in paragraph 14(G) of petition was Rs.5/- per piece?
(b) If yes, whether its estimated cost of Rs.50,000 - 5000=Rs.45,000/- more should have been added to the election expense of respondent no.1?
7 EP NO.1 OF 20148. (a) Whether the above mentioned Face Mask (Mukhauta) was used by the respondent no.1 after filing his nomination and even till date of election in the year 2013?
(b) If yes, whether its estimated additional cost of Rs.60,000 should have been added to the election expense of respondent no.1?
9. (a) Whether the minimum cost of Poster mentioned in Paragraph 14(H)(i) of petition was Rs.3 per piece was incurred by the respondent no.1?
(b) If yes, whether its additional estimated cost of Rs.75,000 should have been added to the election expense of respondent no.1?
10. (a) Whether the Poster mentioned in Paragraph 14(H)(ii) of petition was used by the respondent no.1 in the questioned election held in November, 2013?
(b) If yes, whether its additional estimated cost of expense of Rs.50,000/- should have been added to the election expense of respondent no.1?
11.(a) Whether the Poster mentioned in Paragraph 14(H)(iii) of petition was used by the respondent no.1 in the election expense of respondent no.1?
(b) If yes, whether its additional expense should have been added to the election expense of respondent no.1?
12. (a) Whether the minimum rate of questioned Calender mentioned in Paragraph 14(I) of petitioner was Rs.30/- per calendar?
(b) If yes, whether its additional expense of Rs.20,000 x 30=Rs.6,00,000/- -1,00,000 = Rs.5,00,000/- more should have been added to the election expense of respondent no.1?
13. (a) Whether the Party Symbol mentioned in Paragraph 14(J) of petition was used by the 8 EP NO.1 OF 2014 respondent no.1 in the election held in November, 2013?
(b) If yes, whether estimated cost of Rs.5700/- should have been added to the election expense of respondent no.1?
14. Whether expense of Rs.37,128, Stationary expenses related to voter list of Rs.29,780/-, fuel expenses of three vehicles of Rs.2,682.45 on the polling day and expenses of Rs.3750/- towards stationary and travel on the counting day (total estimated expense Rs.73,340/) was incurred by respondent no.1?
15. (a) Whether the respondent no.1 had held a victory rally?
(b) If yes, whether its estimated expense of Rs.45,700/- should have been additionally added to the election expense of respondent no.1?
16. Whether the expenses Rs.13,88,073/- incurred in meeting dated 20.11.2013 of Mr. Rahul Gandhi should have been added to the election expense of respondent no.1?
17.(a) Whether the respondent no.2 Ramnaresh Saket and respondent no.13 Ramsiya Kol were dummy candidates of respondent no.1?
(b) If yes, whether the expenses shown by them which is Rs.2,18,560/- would be added to the election expense of respondent no.1?
18. Whether respondent no.1 made an additional estimated expenditure of Rs.1,56,150/- in public meeting at Kapuri Kothar?
19.(a) Whether the respondent no.1had put-up 2 hoardings mentioned in paragraph 14(P) of election petition?
(b) If yes, whether the estimated amount of Rs.18,000/- should have been added in the election expenses of respondent no.1?
9 EP NO.1 OF 201420.(a) Whether respondent no.1 on 05.11.2013 and 23.03.2013 had made a vote appeal in the premises of Jhadwa Devi Mandir, Churhat in the name of Goddess Durga?
(b) If yes, whether it would amount to a corrupt practice in terms of S.123(3) of the Act?
21. (a) Whether respondent no.1 through his Vidhyak Pratinidhi, Bharat Singh had distributed Demand drafts to voters as bribe between the date of filing nomination and the date of counting?
(b) If yes, whether it would amount to a corrupt practice in terms of S.123(1)(A)(b) of the Act?
22. (a) Whether the respondent no.1 had exceeded the limit of Rs.16,00,000/- in his election expenses?
(b) If yes, whether the respondent no.1 is guilty of corrupt practice as per Rule 90 of conduct of Election Rules read with S.77(3) and 123(6) of the Representation of People Act?
23.(a) Whether the result of the election so far as it relaters to the respondent no.1, is materially affected by the corrupt practices, if any, adopted by him?
(b) If yes, whether his election is liable to be declared as null and void under S.100(1)(ii) of the Act?
24. (a) Whether but for the votes obtained by the respondent no.1 by corrupt practices, if any, the petitioner would have obtained a majority of valid votes?
(b) Whether the petitioner is entitled to be declared elected from 76, Churhat Vidhan Sabha?
25. Whether the respondent no.1 has not filed correct and true account of expenses before the District Election Officer? If yes, effect?
26. Relief and Costs?
10 EP NO.1 OF 20147. Juxtaposing the issues framed with the pleadings and evidence adduced by the parties, to evade repetitiveness, I find it profitable to club and decide certain issues in the following manner:-
Accordingly, issue Nos.1, 9, 10 and 11 related to Posters are being clubbed and decided conjointly.
Issue No.1 relates to Ex.P/3. As per the admission of respondent No.1, the quantity of posters used in the election campaign was 2500 and cost of poster was Rs.2/- each and total expense shown in that regard was Rs.5,000/-. Whereas, it is alleged by the petitioner that the cost of Ex.P/3 was not Rs.2/- each, but it was Rs.5/- each and as such, respondent No.1 has undervalued the expenditure. According to the petitioner, total cost of these posters was Rs.12,500/- and the difference amount according to the petitioner was Rs.7,500/-.
So far as issue No.9 is concerned, it relates to Ex.P/15 and as per the admission of respondent No.1, the quantity of those posters was 25000 costing one rupee each, the total cost shown was as Rs.25,000/- whereas as per the petitioner, it was also undervalued because cost of per poster was Rs.3/- and accordingly the expenditure made over these posters was Rs.75,000/- and the difference amount came to Rs.50,000/- which according to the petitioner has to be added in the expenditure made in the election of 2013 by respondent No.1.
Likewise, Issue No.10 relates to Ex.P/16 and according to the petitioner, the quantity of posters used in the election held in 11 EP NO.1 OF 2014 2013 was 10000 and cost of per poster was of Rs.5/- and as such, the total cost comes to Rs.50,000/-, but it was put behind the curtain, therefore, Rs.50,000/- has to be added in the head of expenditure of respondent No.1 in the election held in 2013.
Similitude is with Ex.P/17 which relates to issue No.11 and as per the petitioner, the quantity of posters used in the election was 10000 and per poster costed Rs.3/-. The cost and expenditure made in the election over these posters was of Rs.30,000/-, but it was concealed by respondent No.1 and as such, Rs.30,000/- has to be added in the head of expenditure made by respondent No.1 in the election of 2013.
All these four issues are related to campaign material where the petitioner is claiming that the rates more than the minimum rate prescribed in rate-list i.e. Ex.D/1 should be charged and added in the expense register of respondent No.1.
The pleadings relatable to Ex.P/3 are made in paragraph- 14-A of the election petition whereas the reply to it is available in paragraph-24 of the written-statement. As per the pleadings made by the petitioner, he has given the size of posters and compared it with the rate of handbill of Ex.P/4. The price of Ex.P/4 was shown as 50 paise each and according to the petitioner, Ex.P/3 was nine-times bigger than the size of the handbill, therefore, the rate of Ex.P/3, according to the petitioner, was Rs.4.50 each and 50 paise was further added for clear printing and as such, the calculated cost of Ex.P/3 is Rs.5/- each. As per the petitioner, he has calculated the cost of Ex.P/3 12 EP NO.1 OF 2014 moderately as did not add anything additional towards thickness of paper, its quality or even the photographic printing which according to him can be compared with naked eyes, which itself would speak of its superiority than Ex.P/4.
In that context, respondent No.1 in his written-statement has only stated that he had shown the minimum rate as fixed by the District Returning Officer (DRO) in Ex.D/1.
According to the petitioner, respondent No.1 failed to justify the price of Ex.P/3 as Rs.2/- each by not producing any material evidence.
The evidence in this regard has been produced by the petitioner by examining himself as PW/1 and in paragraph-6 of his statement, he has supported the pleading, but according to him nothing was asked in his cross-examination. The petitioner has also examined PW/6 who, according to him, was a Printman and has stated in paragraph-2 of his statement that cost of Ex.P/3 would be around Rs.5.50 to Rs.6/- each in 2013 and for Ex.P/15, he has estimated the cost at around Rs.3.75 each and for Ex.P/16 around Rs.4/- each and Ex.P/17 at around Rs.5.50 to Rs.6/- each. In paragraph-3 of his cross-examination, he said that he oversees the accounts and does the work in preparation of quotation and negotiation of rates. According to the petitioner, PW/6 was erudite having good estimating capability of then current rates. The petitioner has also submitted that in the cross-examination of PW/6, no question was put-forward to him about the cost of Ex.P/15, Ex.P/16 and Ex.P/17 whereas it 13 EP NO.1 OF 2014 was solely about Ex.P/3, therefore, according to the petitioner, the testimony of PW/6 with regard to Ex.P/15 to Ex.P/17 remained unchallenged.
Respondent No.1 examined himself as DW/1 and he has admitted the usage of Ex.P/3 but he has also stated that he was unsure as to whether Ex.P/3 was used in 2008 or 2013 election. According to him, Gulab Singh (DW/2) could disclose this fact. However, DW/2 in paragraph-5 of his statement has admitted the usage of Ex.P/3 but disputed the assessment of cost of Ex.P/3 made by the petitioner as improper. He has also clarified about Ex.P/15, Ex.P/16 and Ex.P/17.
DW/3 was also examined who is an Manager of Box Corrugators Company, the print-man from where certain campaign material got printed by respondent No.1. DW/3 has admitted about printing of Ex.P/3, Ex.P/11, Ex.P/18 and Ex.P/15. He has also admitted that all these posters were for 2013 election. As regards Ex.P/16, he submitted that it was not for 2013 elections, probably it was of preceding election.
DW/6 was also examined who is a seller of campaign material and running his shop at Bhopal in the name and style 'Kartikey Enterprises' and he has admitted that the cost of campaign material must have increased from 2008 to 2013.
Likewise, the pleadings in respect of Issue No.9 which relates to Ex.P/15 are in paragraph-14(H)(i) of election petition whereas its reply is in paragraph-32(i) of the written-statement.14 EP NO.1 OF 2014
The petitioner in respect of this issue has adduced himself as PW/1 and also PW/6, the print-man. Respondent No.1 examined himself as DW/1 and also examined DW/2, DW/3 and DW/6.
As per the petitioner, PW/6 being a print-man has assessed the cost of Ex.P/15 at around Rs.3.75/- and Ex.P/16 at around Rs.4/- and Ex.P/17 at around Rs.5.50 to Rs.6.00 each. According to the petitioner, PW/6 was having extreme knowledge of printing cost and as such, he was not cross- examined in a proper manner and no specific question was asked which could shaken his testimony and as such, the same remained unchallenged.
DW/3 in his statement has clarified that Ex.P/16 and Ex.P/17 were used in 2008 election, but not in 2013 election. DW/3 has also admitted that Ex.P/3 and Ex.P/15 were printed by him. Ex.P/16 was ordered probably in 2008, but not in 2013. As per the petitioner, DW/3 has not answered the specific question of costing of the posters and similarly about Ex.P/16 and Ex.P/17 that the respondent No.1 had taken a stand that these posters were used in 2008 election, but not in 2013 election. As per the stand taken by the petitioner with regard to these issues, it is not required for the petitioner to bring the elaborate evidence regarding actual expenses. The obligation is on a returned candidate to prove actual expenses as it was in his consciousness. The petitioner is only supposed to bring home the requirement of certain direct material facts or circumstances 15 EP NO.1 OF 2014 from which such inference could be drawn. Thereafter, the wisdom of the Court can scale the probative value of the fact and circumstances of the case. According to the petitioner, once the actual expenditure is established and doubt is created relating to disclosure, the burden is on the returned candidate to lead evidence justifying the disclosure of his expenses. As per the petitioner, actual proof of expenses is not required and once it is found that the given expenses by a returned candidate is found to be incorrect, the Court can assess the expenditure on the basis of evidence on record to determine the actual expenses.
Sitting on the other side of barricade, respondent No.1 has submitted that the evidence produced by the petitioner is insufficient to determine that the expenditures shown by respondent No.1 under these heads were incorrect. The assessment of petitioner is highly presumptive in absence of documentary proof, whereas respondent No.1 has shown the expenditures which were duly supervised by the Election Supervisor and, therefore, there arises no question of doubt merely because it did not appeal to the petitioner. It is further contended by respondent No.1 that with regard to Ex.P/16 and Ex.P/17, the witnesses produced by him have categorically said that these posters were used in 2008 elections, but not in 2013 elections. In the shadow expense register of 2013, there is no reference of these two posters Ex.P/16 and Ex.P/17 for the reason that these have been used in 2008 election. Dinesh 16 EP NO.1 OF 2014 (DW/3) of Box Corrugators Company has also specifically stated that these items were not related to 2013 elections. The petitioner only on the basis of oral statement is asking that the expenditure since not shown in the shadow expense register of 2013 by respondent No.1, therefore, these expenses have been concealed. Sheer uttered statement cannot be made basis for adding these campaign material in the expenses of 2013 election.
After hearing the submissions made by the learned counsel for the parties and perusal of pleadings and evidence produced in support thereof it is clear that the aforesaid issues are relating to the cost of posters and according to the petitioner it has been assessed by the respondents on a lower side whereas the actual cost of those posters is much higher than the cost shown by the respondents in the shadow register and expenses register. According to the petitioner, if actual value of campaign material used by the respondents is assessed, the same would cross the maximum limit of expenses prescribed by the Election Commission. The petitioner, therefore, has tried to substantiate that the value of campaign material assessed by the respondent No. 1 is improper and on the contrary he has tried to establish that his assessment is perfect and further the manner in which the petitioner is trying to dislodge his stand and value of campaign material is not sufficient to hold that respondent No.1 has undervalued his campaign material and as such his actual expenses in election were not as such which are shown by him.17 EP NO.1 OF 2014
Considering the material available on record in respect of these issues this Court opines as under:-
The petitioner has placed reliance upon a judgment of Supreme Court reported in (2016) 15 SCC 219-Ajay Arjun Singh vs Sharadendu Tiwari And Ors. For the purpose, the Supreme Court has observed that "the values fixed by the Election Commission or its functionaries are not conclusive" and, therefore, the High Court being an Election Tribunal is authorized to adjudicate about the issues relating to allegations contained under Section 123(6) of the Act and is competent to scrutinize expenses and the rate of campaign material used. According to the petitioner, in case of Shri Kanwar Lal Gupta vs. Amar Nath Chawla and others reported in (1975) 3 SCC 646, the Supreme Court has observed as to how the rate could be calculated and inference can be drawn comparing with the material available on record. Learned counsel for the petitioner has emphasized much upon the observation made by the Supreme Court in the case of Kanwar Lal Gupta (supra). However, respondent No.1 has denied this aspect and objected that the law laid down in the case of Kanwar Lal Gupta (supra) has already been declared as 'no longer a good law' by the subsequent judgment of the Supreme Court and as such has been overruled and, therefore, any observations of the Supreme Court made in the said judgment cannot have the binding effect and for determining any issue, the Court should not rely upon the said observation.
Shri Gupta appearing for respondent No.1 has gone to the extent that it is not a good practice by a lawyer to rely upon the 18 EP NO.1 OF 2014 observation made in a case which has already been overruled by the subsequent judgment of the Apex Court.
Shri Upadhyay although submitted that the law laid down by the Supreme Court in the case of Kanwar Lal Gupta (supra) still holds the field. He submitted that the said law has not been overruled till date. According to him, if the subsequent judgment of the Supreme Court rendered in the case of Smt. Indira Nehru Gandhi vs. Shri Raj Narain and another reported in 1975 (Supplementary) SCC 1 in which the case of Kanwar Lal Gupta (supra) has been considered is examined, it would be clear that the Supreme Court in paragraph 113 has observed that "Kanwar Lal Gupta's case is no longer a good law because of the legislative changes".
As per Shri Gupta, whatever mechanism prescribed by the Supreme Court in the case of Kanwar Lal Gupta (supra) to determine the value of campaign material cannot be used in the present case and those observations cannot be treated to be a guiding principle for the Election Commission of India to control the election expenses.
This Court is of the opinion that entering into the issue whether Kanwar Lal Gupta's case still holds the field or not or the observations made by the Supreme Court in the said case for determining the value of campaign material used by the respondents is not required to be decided here. However, on the basis of other judgments relied upon by the parties and general principles of law this Court can decide the issues framed by the 19 EP NO.1 OF 2014 Election Tribunal and, therefore, I am not inclined to decide the sanctity of judgment of Shri Kanwar Lal Gupta (supra).
Learned counsel for the petitioner has also placed reliance upon the judgment of the Supreme Court reported in (1996) 3 SCC 624-R. Puthunainar Alhithan and others vs. P.H. Pandian and others in which the Supreme Court has observed that "for determining the issue of corrupt practice the burden lies upon the election petitioner, but after adducing evidence in support of allegations, the onus would shift on the returned candidate to rebut the evidence".
Shri Upadhyay appearing for the petitioner submits that the Supreme Court has observed that the trial of the election petition is not a criminal trial in strict sense like an accused, the election petitioner cannot keep mum, he has to give rebuttal otherwise adverse inference would be drawn against him from the proved facts. In the judgment relied upon by him it is also observed by the Supreme Court that the petitioner is not required to bring meticulous evidence regarding actual expenses. The obligation is on the returned candidate to prove actual expenses as it were in his exclusive knowledge. What is required from the election petitioner is that he should bring on record "some direct material facts or circumstances from which such an inference could be drawn". The Court can gauge the probative value from the facts and circumstances in a given case.
The petitioner although also adduced the evidence of himself and also of some other witnesses with regard to campaign material used in the election and its value, which, according to 20 EP NO.1 OF 2014 him, is shown much lesser than the actual value. In number of judgments the Supreme Court has observed that in the available material election petitioner successfully shifts the burden upon the returned candidate to disclose the proper material and value of the used campaign material in rebuttal.
Shri Gupta appearing for the respondents has denied the submission made by the learned counsel for the petitioner and placed reliance upon several judgments of the Supreme Court saying that whatever evidence adduced by the petitioner is not so specific, but the same is based upon surmises and conjecture. The petitioner is in fact presuming that the value of campaign material used by the returned candidate is more than the value which is shown by him. He has also submitted that mere oral evidence for seeking declaration that the returned candidate has adopted corrupt practice is not enough. He has further submitted that the petitioner has determined the value of campaign material only on the basis of self assessment and has not adduced evidence of any expert so as to substantiate that the assessment which was being made by the petitioner is not without any foundation and not based on presumption. He submitted that in absence of any such opinion of expert, only on the basis of presumption and adducing oral evidence by the election petitioner is not enough to set aside the election of the returned candidate on the ground of corrupt practice. He has relied upon a decision of Supreme Court reported in AIR 2000 SC 256-Jeet Mohinder Singh vs. Harminder Singh Jassi in which the Court has observed as under:-
"The charges when put to issue should be proved by clear, cogent and credible 21 EP NO.1 OF 2014 evidence. To prove the charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to hilt, the standard of proof being the same as in criminal trial."
The Supreme Court in that case also considering the evidence adduced by the parties and issues involved has observed that no inference can be drawn that the statement of expenses and the vouchers as filed by the returned candidate/respondent were false or that the expenditure incurred on the posters had resulted into crossing the prescribed limit of expenditure.
Shri Gupta has further relied upon the judgment reported in AIR 1996 SC 1109-S. Baldev Singh Mann vs. S. Gurcharan Singh, MLA and others in which the Supreme Court in para-8 has observed as under:
"8. It is well settled that an allegation of corrupt practices within the meaning of sub-sections (1) to (8) of Section 123 of the Act, made in the election petition are regarded quasi criminal in nature requiring a strict proof of the same because the consequences are not only very serious but also penal in nature. It may be pointed that on the proof of any of the corrupt practices as alleged in the election petition it is not only the election of the returned candidate which is declared void and set aside but besides the disqualification of the returned candidate, the candidate himself or his agent or any other person, as the case may be, if found to have committed corrupt practice may be punished with 22 EP NO.1 OF 2014 imprisonment under Section 135-A of the Act. It is for these reasons that the Court insists upon a strict proof of such allegation of corrupt practice and not to decide the case on preponderance or probabilities."
Likewise in the case of Tukaram S. Dighole v. Manikrao Shivaji Kokate reported in AIR 2010 SC 965 in an election petition alleging corrupt practice done by the returned candidate, the Supreme Court has observed in paragraph -11 "11. Before we proceed to examine the controversy at hand, we deem it necessary to reiterate that a charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefor would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial. If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career. Thus, a heave onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved."
The Supreme Court in the case of Tukaram (surpa) has also observed that :
"To prove the charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a 23 EP NO.1 OF 2014 presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial."
Shri Gupta has also relied upon a judgment of High Court of Madhya Pradesh rendered in Election Petition No. 51/2009- Chandrabhan Singh Choudhary vs. Kamal Nath reported in 2013 (II) JLJ 345. As per the High Court, the election accounts of expenses if submitted by the candidate before the Election Commission and that has been accepted by the Election Commission then the said accounts cannot be challenged in an election petition.
Shri Gupta has submitted that in Uma Ballav Rath vs. Maheshwar Mohanty and others reported in AIR 1999 SC 1322 again the Supreme Court has observed:
"To avoid an election, it is necessary that cogent evidence is led in support of the charge. An election cannot be set aside on "presumption", surmises or conjecture.
Clear and cogent proof in support of the allegations is essential."
Shri Gupta submits that in case of Gajanan Krishnaji Bapat and another v. Dattaji Raghobaji Meghe and others reported in AIR 1995 SC 2284 the Supreme Court in paragraph 16 has observed:
"The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the 24 EP NO.1 OF 2014 returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, however, strong cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since, pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action."
And further in paragraph 18 the Supreme Court observed as under:
"18. A petition levelling a charge of corrupt is required, by law, to be supported by an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise."
The Supreme Court in case of Surinder Singh vs. Hardial Singh and others reported in AIR 1985 SC 89 has observed as under:
"The onus of establishing corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof 25 EP NO.1 OF 2014 of mere preponderance of probability, as in the trial of the civil suit the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous."
Considering the law laid down by the Supreme Court in regard to election petition whereunder the election was assailed on the ground of corrupt practice, it is clear that there must be some strong and clear evidence to annul the election or to declare the returned candidate disqualified on the ground of adopting corrupt practice.
From assessing the evidence adduced by the petitioner, it is clear that nothing has been produced by the petitioner indicating that the cost of used campaign material shown by the returned candidate and the accounts submitted to the Election Commission was less than the actual cost. On the petitioner's side, no expert was called who could substantiate that the cost of a particular article used by the returned candidate was not so as was being shown and the cost of the same was less than the actual cost. On the contrary in number of occasions petitioner in his statement has said "Mere Hisab se iska mulya kam se kam itna hona chahiya." (esjs fglkc ls bldk ewY; de ls de bruk gksuk pkfg;s ) Shri Upadhyay on the basis of used campaign material with a comparative assessment has tried to establish the value of used campaign material, but, in my opinion and taking note of the law laid down by the Supreme Court only an oral evidence that too on its probative value based on presumption is not enough and as such in the present case onus lies upon the petitioner has not been 26 EP NO.1 OF 2014 shifted upon the returned candidate. In the present case, the Election Commission has also accepted the cost of the campaign material used by the returned candidate and in some of the occasions objection raised by the Election Commission about the cost of the material and that was rectified by the returned candidate and then revised cost was accepted by the Election Commission. However, Shri Upadhyay by showing judgments of the Supreme Court tried to establish that in absence of specific denial by the respondents in their written statement, it is presumed to be admitted and in such a circumstance burden shifted upon the returned candidate to rebut the submission made by the election petitioner and adverse inference can be drawn against the returned candidate, if he fails to rebut the said submission.
Here in this case respondent No.1 has also produced a witness, who was an employee of Box Corrugators Company and was a Print-man where certain campaign material got printed by respondent No.1. DW-3 Dinesh has admitted about the campaign material used in the election of 2013 and also of 2008. He has also produced certain vouchers with regard to payment of campaign material, but, that fact was not denied by the petitioner. The statement of DW-1 and DW-2 to some extent are corroborated with the statement of DW-3, an employee of the company from where the campaign material got printed. On the contrary, the petitioner did not produce any such witness or an expert in the field so as to determine the actual value of the used campaign material. Although PW-3 claimed himself to be a worker of Printing Press but in cross-examination, his testimony is shaken 27 EP NO.1 OF 2014 comparatively with the witnesses of respondent i.e. DW-3 and DW-6. PW-3 is rsident of Churhat, familiar with petitioner. Press in which he worked is an unregistered and does not any licence. As such he cannot be a trustworthy nor can he be considered to be an expert. In absence of any expert evidence it is not proper for this Court to rely upon the oral evidence that is based upon the presumption of the election petitioner.
Counsel for the petitioner has also placed reliance upon a decision of the Supreme Court in case of Common Cause (A Registered Society) v. Union of India and others (1996) 2 SCC 752 saying that as per the Supreme Court the political party has to maintain audit and account and they are required to lead evidence in election petition and should also disclose everything in their Income Tax return. It is not proper for a candidate to say that the expenditure is actually made by the political party and not by him. If any such expense in connection with the election of the candidate has been incurred by a political party shall be presumed to have been authorised by the candidate or his election agent. However, in the present case, this Court has to consider all aspects as to what expenses incurred by the candidate and have to be added in the election expenses. Ergo, said case has no application in the case at hand.
Likewise, in case of R.M. Seshadri v. G. Vasantha Pal (1969) 1 SCC 27, the Supreme Court has observed that while investigating the corrupt practice and to maintain purity in election, the Court can also summon witnesses as court witnesses to establish such corrupt practice. Albeit, this Court while dealing 28 EP NO.1 OF 2014 with the facts and circumstances of the case and considering the evidence adduced by the parties, did not find any occasion to call any witness because primarily by adducing evidence, it is the duty of the election-petitioners to create suspicion in the mind of the court so as to call the witness to ascertain the actual expenses incurred by the candidate. In the present case, looking to the evidence adduced by the parties, the Court was prima facie of the opinion that the evidence adduced by the returned candidate cannot be ignored as he called the witnesses who were related to the field of campaign material and their version cannot be ignored comparing with the evidence adduced by the election-petitioner.
The learned counsel for the petitioner has also placed reliance on a decision in case of Satrucharla Vijaya Rama Raju v. Minnaka Jaya Raju and others (2006) 1 SCC 212 so as to draw attention of the court that the trial of election petition is not a criminal trial in strict sense. Like an accused the election petitioner cannot keep mum, he has to give rebuttal, otherwise adverse inference would be drawn from proved facts. It is observed by the Supreme Court that it is for the returned candidate to prove facts which are in his exclusive knowledge. The facts of the case in Satrucharla Vijaya Rama Raju (supra) are altogether different wherein the issue with regard to caste of the candidate was involved, but in the present case, the basic issue involved is with regard to corrupt practice that too on the ground that returned candidate has shown lesser value of campaign material but spent money more than Rs.16 lac, which is a permissible limit. In the present case, the election petitioner has produced the evidence but 29 EP NO.1 OF 2014 that was based on surmises and conjectures and did not create any such situation, under which, the burden, as is on the head of the petitioner, got shifted on the returned candidate.
Considering the overall circumstances and the evidence adduced by the parties and submissions made thereof I am not convinced with the evidence adduced by the election petitioner to hold that the value of campaign material shown by the returned candidate was much less than the actual cost. The evidence produced by the petitioner is not so clear and unambiguous for reaching the conclusion that the value of material used by the returned candidate and accounts submitted by him to the Election Commission was on lower side and if actual cost of the used campaign material is assessed then the expenses incurred in the election by the returned candidate exceeds the maximum limit determined by the Election Commission i.e. Rs.16 lakh. Therefore, these issues, in my opinion, are decided in negative.
ISSUE NO.2 Issue no.2 relates to Ex.P/6 plastic badge (billa). The respondent no.1 (returned candidate) has admitted the use of plastic badge i.e 50000+10000=60000 and its costing as per the respondent no.1 is 50 paise each, but later on the respondent no.1 has admitted that only 10000 badges were used in 2013 election, but remaining 50000 is of 2008 elections and as per disclosed cost Rs.5000/-, however as per the petitioner, per badge costs Rs.2/- and total cost is Rs.1,20,000/-and as such difference amount is 30 EP NO.1 OF 2014 Rs.1,15,000/-which is required to be added in the cost expenditure of election of respondent No.1.
Pleading with regard to issue no.2 is made at para 14 of Election Petition and its reply in the written statement is at paragraph 33.
The petitioner has fathomed plastic badges and given calculation determining the cost after comparing it with the cutout as the material in both the items were same and the cost of cutout as per the rate-list prepared by District Election Officer, Sidhi shown to Rs.50/- per square feet and calculation was accordingly made by the petitioner showing that the plastic badge costing Re.1/- each and as per total quantity printed was of Rs.50,000/- and it is also calculated by the petitioner that the badge also contained a printed sticker and involved manual labour for affixing sticker on plastic portion of the badge, Re.1/- was additionally added and cost of Rs.1,00,000/- came for 50,000 badges. As per the petitioner, neither in the expenditure register of respondent no.1 nor Shadow expense register maintained by respondent no.1 any entry was made and as such amount of Rs.1,00,000/-be added in the expenses of respondent No.1.
The respondents have denied this averment in their written- statement saying that these plastic badges have not been used in the election of 2013 and therefore there was no entry of these badges in the shadow expense register, but they have taken a stand that in the election of 2013 badges Ex.D/4 and Ex.D/5 were used and they were shown in a composite purchase voucher i.e Ex.D/16.
31 EP NO.1 OF 2014The evidence was adduced by the parties in that regard. The petitioner was examined as PW-1. He supported the pleading that PW-2 had stated that Ex.P/6 was seen by him during its circulation during the election of 2013. As per the petitioner, PW- 2 was not cross-examined on this point nor any suggestion was given to him and as such his testimony remained unchallenged.
The respondent was examined as DW-1 and in his statement, he has stated that Ex.P/6 though related to him but used in 2008 election. Although, in his statement he was not sure as to which material has been used in 2008 or 2013 and disclosed that it was Gulab Singh DW-2 who knew everything about it. DW-2 has also been examined who stated that Ex.P/6 was not printed for 2013 election and as such DW-6 Hari Prakash Mishra has also given details of Article supplied to him i.e Ex.D/16. He has also denied about supply of Ex.P/6. He submits that print line "KE" was not used by him but according to him he used "Kartikeya Enterprises."
As per counsel for the petitioner in the written-statement, respondent no.1 in response to the pleading of the petitioner with regard to plastic badge, did not disclose that these badges have been used in 2008 election. In absence of any specific answer and denial to the usage of these plastic bags in 2013 election, adverse inference can be drawn against respondent No.1 as per Section 114(g) of the Evidence Act. It is also contended by counsel for the petitioner that the petitioner has already admitted that Ex.P/6 got printed for 2013 election.
32 EP NO.1 OF 2014Shri Gupta appearing for respondent No.1 has contended that nothing substantial evidence is adduced by the petitioner to bring home that the plastic badge Ex.P/6 has been used in 2013 election and no opinion of any expert was also taken about the actual cost as has been determined by the petitioner of Ex.P/6, but only on the basis of pleadings and oral statement, the assessment or determination of cost of Ex.P/6 is not acceptable inasmuch as on the basis of presumptive evidence, the charge of corrupt practice cannot be established.
Considering the material available on record in respect of this issue this Court finds as under:-
This issue relates to Ex.P/6 [Plastic badges (billa)]. The petitioner has claimed total 60000 plastic badges were used by respondent No.1 in the election of 2013 and cost of per badge was shown as 0.50 paise. However, as per respondent No.1 only 10000 badges were used in the election of 2013 whereas 50000 badges were used in 2008 election. As per respondent No.1, he has disclosed the cost of Rs.5000/- in the expense register. The petitioner has claimed that the cost of badges has been shown on lower side whereas actual cost was Rs.2/- each and as such total cost comes to Rs.1,20,000/- therefore, difference of Rs.1,15,000/- is required to be added in the expense of returned candidate.
I am not convinced with the submissions made by the learned counsel for the petitioner because the petitioner relied upon the evidence of PW-1 and PW-2, who have stated that they had seen that the badges were used as were in circulation in the election of 2013. Though Shri Upadhyay has submitted that these 33 EP NO.1 OF 2014 two witnesses have not been cross-examined on this point nor any suggestion was given to them, therefore, their testimony remained unchallenged, but respondent No.1 examined himself as DW-1, who has stated that Ex.P/6 was used in 2008 election also. Although he was not sure on the point whether these badges have been used in 2008 or 2013 elections, but DW2 who was overseeing the affairs of the returned candidate in his statement has clearly stated that Ex.P/6 was not printed for 2013 election. DW-6 Hari Prakash Mishra has also stated and relied upon Ex.D/16 in which details of articles supplied by his company to the returned candidate were described. He has also denied about supply of Ex.P/6.
Shri Upadhyay, although, submitted that there is no specific denial in the written-statement of respondent No.1 and nothing has been disclosed that the badges were used in 2008 election. In absence of any specific denial, according to him, it be treated to be admission and as such an amount of Rs.1,15,000/- is required to be added.
The petitioner examined himself as PW-1 and witness PW-2, but except their oral statement, nothing substantial is produced by them. It is reiterated that oral statement so far as determining the value of the article is not sufficient whereas respondent No.1 examined DW-6, the employee of the company supplying the election material to the returned candidate. The petitioner has not produced any evidence which can be considered to be strong proof so as to assess the value of Ex.P/6. Neither any skilled person was examined to substantiate that the assessment 34 EP NO.1 OF 2014 made by the petitioner is close to actual value of Ex.P/6. Under these circumstances, when DW-6 an employee of company supplying material to the returned candidate examined in the face of vouchers showing that only 10000 badges were used in the election of 2013, this Court has no reason to disbelieve his statement because in rebuttal nothing specific or strong evidence has been produced by the election petitioner. Though there is no specific denial by the respondents in their written-statement and no disclosure was made specifying as to what quantity of badges were used in 2008 election and 2013 election, but in evidence they have elaborated the stand taken by them in the written-statement and as such drawing an adverse inference and approval to oral statement of witnesses cannot be given weightage over the statement of witnesses came with the documentary evidence i.e. vouchers giving details of articles supplied to the returned candidate. Accordingly, in my opinion, the petitioner failed to prove this issue in his favour because he failed to produce any strong evidence in support of his stand.
ISSUE NO.3 This issue relates to costing of orange cap (Ex.P/7) and the quantity used and disclosed by respondent No.1 was 20000 showing cost of each cap as Rs.3/- but later on, the rates were augmented to Rs.5/- pursuant to the objection raised by election observer and as such total cost came to Rs.1,00,000/-. However, this cost is disputed by the petitioner saying that each cap costed Rs.30/- and as such total cost came to Rs.6,00,000/-and difference 35 EP NO.1 OF 2014 amount of Rs.5,00,000/-is required to be added in the expenditure of respondent No.1.
In this regard pleading is available in paragraph 14 (D)(i) of Election Petition and its reply in paragraph 27 of written- statement. As per the pleading, the petitioner claimed the usage of 15000 caps and calculated its cost @ Rs.30/- each which valued to the tune of Rs.4,50,000/- against the disclosure made by respondent No.1 as Rs.75,000/-and as such it is claimed that an amount of Rs.3,75,000/- be also added in the expenditure of respondent No.1 of election 2013.
Respondent No.1 in his reply has stated that the assessment made is based on whims and fancies of the petitioner. The respondents have disputed the manner in which cost of cap has been determined by the petitioner. It is stated by the respondents whatever expenditures made over these articles have been shown in the shadow register and Rs.30/- is nothing but a hypothetical estimation.
Evidence in regard to this issue is available in paragraph 9 of statement of petitioner (PW-1) and (PW-2) and the defendant (DW-1) in paragraphs 32, 33, 51, 52 and 53. DW-2 in paragraph 9, 10 and 11 in which he has also stated that initially cost of cap was disclosed at Rs.2/- but later-on in pursuance to the objection raised by observer it was soared to Rs.5/-. So far as head strip is concerned, he had stated that it was used in 2008 election but not in 2013 and also disputed the calculation of price of cap as made by the petitioner.36 EP NO.1 OF 2014
Considering the available material and evidence in respect of issue no.3 this Court finds as under:-
This issue relates to Ex.P/7 (Orange Caps). As the petitioner has taken a stand that 20000 caps got prepared and used in the election and cost of each cap has been shown as Rs.3/-. The cost of caps shown by respondent No.1 was later-on increased to Rs.5/- each pursuant to objection raised by the election observer and total cost of Rs.1,00,000/- was shown in expense register, but the petitioner is not satisfied and according to him cost of each cap was Rs.30/- and as such total value of these caps should be Rs.6,00,000/- and therefore, the difference amount of Rs.5,00,000/- is required to be added in the expense of respondent No.1.
I have gone through the evidence produced by the petitioner examining PW-1 and PW-2 and defendant examined himself as DW-1 and another witness DW-2. Initially, cost of caps was shown @Rs.3/- each but pursuant to the objection raised by the election observer cost of caps was increased to Rs.5/- each. There is nothing produced by the petitioner except oral statement of election petitioner and one of his worker comparing material of Ex.P/7 with other articles assessing the tentative value of Ex.P/7 as Rs.30/- each. DW-1 and DW-2 have orally denied the assessment of the petitioner and stated that when the observer raised an objection about cost of the caps, then that has been augmented to Rs.5/- each.
This Court has no mechanism available to assess the actual value of the particular item and this Court cannot rely upon the 37 EP NO.1 OF 2014 evidence adduced by the petitioner because his assessment is based on presumption. In absence of any expert opinion or an evidence of person related to the field of manufacturing of election articles, the value assessed by the petitioner cannot be said to be correct value. Therefore, in the absence of strong material and evidence produced by the petitioner, this issue cannot decided in favour of the petitioner. Accordingly, it is decided in negative.
ISSUE NO.4 Issue no.4 relates to Ex.P/10, which says about the quantity of these caps, as per the petitioner, was 2000 used in the election of 2013 and cost of these caps are Rs.60,000/-, but it is not shown to have been used in 2013 election by respondent No.1 and he claimed that this item was used in the election of 2008. The petitioner pleaded that these caps were also used in election of 2013, but in the expenditure of election of respondent no.1 it is not shown in the expense register and therefore cost of Rs.60,000/- has to be added in the expenditure of 2013 election of respondent No.1. Corresponding pleading to issue no.4 is available in paragraph 14 (D)(ii) and its disavowal in written- statement is in paragraph 28. PW-1 has supported the pleadings made in election petition. PW-2 has stated that Ex.P/10 was seen by him during circulation in Indian National Congress Campaign of election 2013. According to the petitioner, neither PW-2 was cross-examined on this point nor any suggestion was put to him and therefore his testimony remained unchallenged. Respondent 38 EP NO.1 OF 2014 No.1 examined himself as DW-1 who remained unsure about the usage of Ex.P/10 in election 2008 or 2013. However, DW-2 claimed that it has been used in 2008 election and so far as costing is concerned, he reiterated that whatever cost shown in the expense register that has not been disputed by the petitioner and has also been approved by election observer. DW-6 has also been examined, who stated that it was difficult to differentiate two sorts of caps used in 2008 and 2013 elections, as were almost identical, but later-on he clarified that Ex.P/10 were used in 2008 election and Ex.P/7 were used in 2013 election.
Shri Upadhyay, learned counsel for the petitioner asserted that the calculation made by the petitioner aptly as was done in respect of Ex.P/7 underlying issue no.3. He further submitted that in view of the statement of witnesses of respondent No.1, they themselves were not sure as to which cap had been used in 2008 election and which had been used in 2013 election. The print-man DW-6 also remained unsure about it. Learned counsel for the petitioner submitted that in view of the statement made by the election petitioner, the cost of 2000 caps as has been shown Rs.60,000/- is required to be added in the expenditure of election of 2013.
Considering the submissions made by the parties and material available on record this Court is of the opinion as under :-
This issue relates to Ex.P/10 (caps). As per the evidence adduced, 2000 caps were used in the election of 2013 and cost of caps has been shown as Rs.60,000/-. In the expense register nothing has been shown, therefore, Rs.60,000/- has to added in the 39 EP NO.1 OF 2014 expenditure of returned candidate. In support of the averments made in the petition, PW-1 and PW-2 have been examined. Respondent No.1 examined DW-1, DW-2 and DW-6, who specifically denied the usage of Ex.P/10 in the election of 2013. They stated that in the election of 2008 expense register contained the said entry was approved by the election observer. Although there was some misconception to the witnesses of respondent No.1 about use of caps Ex.P/7 and P/10 but considering the fact that the entry made in the expense register of 2008 election and as stated by the witnesses of respondent No.1 only on the basis of oral statement of PW-1 and PW-2 the issue cannot be decided in affirmative. The Supreme Court in number of cases has observed that for establishing corrupt practice against a returned candidate, strong evidence and proof is required. In the present case, the petitioner has not produced any strong evidence and therefore he failed to get the issue decided in his favour.
ISSUE NO.5 Issue no.5 relates to pocket calendars (Ex.P/11). Pleading in this regard is available in paragraph 14(E) of the election petition and its denial by respondent No.1 is in paragraph 29 of his written-statement. As per the election petitioner, the quantity of pocket calendars used in the election of 2013, as per admission of respondent no.1 was 25000 and the cost disclosed by them @50 paise each. Later on, it was increased to Re.1/- each and as such total cost shown in the expenditure register was Rs.25,000/- but as per the petitioner, the cost of pocket-calendar was Rs.2/- each, 40 EP NO.1 OF 2014 total cost according to him was Rs.50,000/-. The difference of Rs.25,000/- therefore is required to be added in the expenditure of election of respondent no.1. As per the petitioner, the size, colour- printing with photo, finishing print on both sides and the thickness of the paper used in pocket-calendar cannot be determined as less than Rs.2/- each. In support of his pleading, PW-1 was examined. The defence witnesses DW-1 and DW-2 have stated that initially the cost of this material was shown 50 paise but pursuant to objection raised by election observer, it got increased to Re.1/- and that has been accepted by the election observer and therefore there is no reason to cast a shadow over the the cost and expenditure shown, which was duly approved by the election observer.
Considering the material available on record and submissions made by counsel for the parties this Court is of the view as under:-
This issue relates to Ex.P/11 (Pocket calendars). As per the petitioner, in 2013 election, 25000 pocket calendars were used costing 0.50 paise each, but later-on it was increased to Re.1/-. However, the petitioner is claiming that actual cost of pocket calendar was Rs.1.50/- each and as such difference amount of Rs.5,000/- is required to be added in the election expenses of returned candidate.
Nothing specific and strong proof has been produced by the petitioner that the cost as has been shown by the returned candidate does not appear to be feasible but only on his presumption, this Court cannot rely upon his stand when DW-1 41 EP NO.1 OF 2014 and DW-2 have denied this fact and stated that initially cost of Ex.P/11 was shown as 0.50 paise each but that has been ameliorated pursuant to the objection of election observer to Re.1/- each and that has been approved by the election observer. I am, therefore, not inclined to interfere with the price of pocket calendars as same has been approved by the election observer and nothing strong evidence has been produced to rebut the stand of the returned candidate. This issue is accordingly decided in negative.
ISSUE NO.6 Issue No.6 relates to exhibit P-12 (Stickers). As per the petitioner the total quantity admitted to have been used was 10000 and as per respondent No.1 its costing is 50 paise each, whereas rate alleged by the petitioner was Rs.2/- each and as such total cost should have been shown by the returned candidate as Rs.20,000/- but he showed cost as Rs.5,000/-, therefore, difference amount of Rs.15,000/- has to be added in the expenditure of returned candidate.
Pleading in respect of this issue is available in election petition in paragraph 14(F) and its denial in paragraph 30 of written-statement. Evidence was adduced by the election petitioner of PW-1 who supported the pleading made in the election petition and also compared his stickers used in the election of inferior quality than that of respondent No.1 but still his sticker costed Rs.2/- each and therefore the cost of stickers used by the respondent was determined as Rs.2/- each.42 EP NO.1 OF 2014
Respondent No.1 was examined as DW-1 and he said nothing about this issue, whereas DW-2 stated that whatever the rate shown in that context cannot be doubted as is correct.
Counsel for the petitioner submitted that the stickers have also been used by the election-petitioner but his stickers quality was inferior than that of stickers of returned candidate and according to him his stickers' costing was Rs.2/-each then the cost of stickers of returned candidate cannot be assessed less than Rs.2/- and as such Shri Upadhyay submitted that difference amount of Rs.15000/- is also required to be added.
Considering the material available in this regard and the submissions made by the parties this Court is of the view as under :-
This issue relates to Ex.P/12 (stickers). Stickers, 10000 in quantity, were used in the election of 2013 showing cost of each sticker as 0.50 paise. As per the petitioner, the actual cost of sticker was Rs.2/- each and as such it is costing Rs.20,000/- but in the expense register returned candidate has shown only Rs.5,000/-, therefore, difference amount of Rs.15,000/- is required to be added in the expenditure of returned candidate. In support of the pleading, PW-1 has been examined, who supported the pleading and in rebuttal DW-1 and DW-2 were examined by respondent No.1.
Considering the material available and evidence adduced by the parties, there is no strong proof produced by the petitioner so as to draw a conclusion that the cost of stickers as has been shown by the returned candidate was not adequate and much lower price 43 EP NO.1 OF 2014 has been shown. Only on the basis of oral evidence that too of election petitioner saying cost of stickers was Rs.2/- each is nothing but his presumption, therefore, cannot be accepted. This issue is accordingly decided in negative.ISSUES NO.7 AND 8
Both the issues relate to face masks (Ex.P/13 and P/14). So far as Ex.P/13 is concerned, the quantity used by the returned candidate of Ex.P/13 was 10000 and cost shown as 50 paise each as expenditure in this regard to Rs.5,000/- whereas as per the petitioner its cost is Rs.5/- each and difference amount is Rs.45,000/- which was required to be added in the expenditure of respondent no.1. Exhibit P-14 was also used, 10000 in number, and cost alleged by the petitioner is Rs.6/- each, which comes to total cost as Rs.60,000/- and as per the petitioner this article has not shown in the expenditure register and therefore, total Rs.60,000/- was required to be added in the expenditure of respondent no.1 for the election of 2013. As far as Ex.P/13 is concerned, pleading in the election petition is available in paragraph 14(G) and its denial in written statement at paragraph
31.
The petitioner has examined PW-1 who has supported the pleading in his statement and PW-2 who has stated that Ex.P/13 and P/14 both were used and circulated during the election of 2013. As per the petitioner, PW-2 was not cross-examined on this point, nor any suggestion has been given to him, therefore, his testimony remained unchallenged. PW-6 was also examined who 44 EP NO.1 OF 2014 has given rate as around Rs.6/- each of Ex.P/13 and P/14. According to the petitioner, no cross-examination in this respect has been done.
The witnesses of respondent No.1 were examined as DW-1 and DW-2 who have admitted the use of Ex.P/13, but denied the use of Ex.P/14 in 2013 election. DW-6, the Print-man was also examined but he has also not stated anything about the cost assessed by the election petitioner, but has stated that the material used in this article in 2008 and also in 2013 are same and also admitted that the cost from 2008 has timely soared.
As per Shri Upadhyay the masks which have been used in the year 2008 its costing as per respondent No.1 is Rs.1.50 each and as per their witness, cost has been increased till 2013 and accordingly in 2013 the cost which has been shown by the respondent in election of 2013 @50 paise each is beyond imagination and cannot be accepted at all. If there is an increase in the cost during five years then it must be more than Rs.1.50 paise each. He further submits that respondent No.1 has not disputed the comparative assessment made by the petitioner and the correct cost of Ex.P/13 and P/14 has not been shown and accordingly total sum of Rs.45,000/- with regard to Ex.P/13 and Rs.60,000/- regarding Ex.P/14 needs to be added in the expenditure of respondent no.1 in the election of 2013.
On the contrary, counsel for the respondent submits that the cost of Ex.P/13 has been mentioned in Ex.D/16. The supplier DW-6 has also approved the same in his statement. The expenditure observer has also approved the said rates. The 45 EP NO.1 OF 2014 voucher has not been disputed by the petitioner. So far as Ex.P/14 is concerned, he submitted that none of the witnesses got produced to prove that Ex.P/14 was used in 2013 election. It is also not disputed or contradicted that the said exhibit was used after submitting the nomination paper. According to Shri Gupta the expense observer did not raise any objection about Ex.P/14, therefore, the statement of DW-1 and DW-2 cannot be discarded and these issues according to him need to be decided in his favour.
Considering the submissions made by the counsel for parties and available material this Court finds as under:-
These issues relate to Ex.P/13 and P/14 (face-masks). The cost of Ex.P/13 was shown as 0.50 paise each and 10000 face- masks were used in the election of 2013, but according to the petitioner actual cost of face-mask was Rs.5/- each and therefore difference amount of Rs.45,000/- is required to be added in the expense register to show that same has been incurred under the expense head of election of returned candidate. Likewise, Ex.P/14 was also used, 10000 in number, and cost as per the petitioner is Rs.6/- each whereas it is shown @0.50 paise each. The witnesses produced by the petitioner i.e. PW-1 and PW-2 have stated that looking to the quality of material used in both the articles, it cannot be prepared in 0.50 paise. PW-2 in his statement clearly stated that the face masks (Ex.P/13 and P/14) have been used and were circulated during the election of 2013. Shri Upadhyay submitted that PW-2 was not cross-examined on this point, therefore, his testimony remained unchallenged. Respondent No.1 examined DW-1 and DW-2 and they admitted the usage of 46 EP NO.1 OF 2014 Ex.P/13 in the election of 2013 but so far as Ex.P/14 is concerned, its usage in the election of 2013 has been denied, however, according to them, this article was used in the election of 2008. As per Shri Upadhyay, DW-6 has admitted that from 2008 to 2013 there is increase in the cost and therefore it is clear that actual cost of Ex.P/13 and P/14 is not shown in the expense register. He submitted that in 2008, the cost of face mask is shown as Rs.1.50/- and therefore in 2013 after increase, it must be more than Rs.1.50 each. Respondent No.1 examined DW-1, DW-2 and DW-6. The supplier DW-6 has approved the stand taken by respondent No.1 in his written-statement and stated that cost shown in the expense register has been approved by the observer. So far as Ex.P/14 is concerned, none of the witnesses of petitioner has said that Ex.P/14 was used in 2013 election. The approval of observer has not been questioned and no objection raised before him. Merely oral evidence has been adduced by the parties. Nothing concrete is shown as to what extent increase in price is based and therefore accepting the assessment made by the petitioner saying the actual cost of Ex.P/13 and P/14 was Rs.5/- does not appear to be proper. The evidence of DW-1 and DW-2 can also not be ignored. In absence of any strong evidence, these issues are decided in negative.
ISSUE NO.12 As far as this issue is concerned, it relates to Ex.P/18. Pleading by the election petitioner in the election petition has been 47 EP NO.1 OF 2014 made in paragraph 14(I) and by respondent No.1 in written- statement paragraph 33.
Ex.P/18 is a calendar and as per the averments made in the election petition, 20000 calendars shown to have been used in the election of 2013 by the returned candidate i.e. respondent No.1 showing cost of each calendar as Rs.2/-. But later on, in pursuance to the objection raised by the Election Expense Observer, the cost of Ex.P/18 has been enhanced to the tune of Rs.7/- each and as such, total cost of Ex.P-18 in the expense register of respondent No.1 was mentioned as Rs.1,40,000/-.
As per the election petitioner lower price has been shown by respondent No.1 because the actual cost of Ex.P/18 came to Rs.30/- each and as such, total cost of expenditure over Ex.P/18 was Rs.6,00,000/- and as such, difference amount i.e. Rs.4,60,000/- is required to be added in the expense of respondent No.1-returned candidate.
The election petitioner has alleged that Ex.P/18 was made of Flex which is quite expensive than the plastic, but since the closest available material in District Returning Officer's list was plastic, therefore, it has been used for comparison with available material and as such, the cost of calendar was assessed and determined by the election petitioner at the rate of Rs.30/- each.
In written-statement, respondent No.1 has specifically denied this fact and submitted that Ex.P/18 got printed from Box Corrugators, Bhopal at the rate of Rs.2/- per calendar and this amount has been shown in the expense register. However, the Election Expense Observer was unsatisfied with the value of 48 EP NO.1 OF 2014 Ex.P/18 and therefore pursuant to his objection, it has been increased to Rs.7/- and total expense has been shown as Rs.1,40,000/- in the expense register. The value assessed by the Election Expense Observer of Ex.P/18 was not objected at the relevant point of time and thus, according to respondent No.1 assessment made by the election petitioner is hypothetical.
The election petitioner in support of his stand, produced himself as PW-1 and supported the pleading of election petitioner, but according to the petitioner in cross-examination it was not disputed that the used material in Ex.P/18 was Flex or something else. It is also not disputed that Flex is expensive than plastic and thus this point according to the petitioner in the testimony of PW-1 remained unchallenged.
Respondent No.1 examined himself as DW-1 and has very categorically stated that determining cost of a particular material used in the election was upon the District Returning Officer and according to him the cost of Ex.P-18 was shown as Rs.7/- each and that has been accepted by the respondents and as such, the expenditure is shown in the expense register.
DW-2 was also examined. He has also supported the pleading made in written-statement and denied the allegation made by the election petitioner. He stated that the District Returning Officer has given the rate of Ex.P-18 and accordingly, it was shown in the expense register.
DW-3 has also been examined, who has also supported the stand taken by DW-1 and also stated that the calendar was not 49 EP NO.1 OF 2014 made by Flex but was printed on a paper. However, he was not in a position to demonstrate the cost of Ex.P/18.
As per the counsel for the petitioner, rate of Ex.P/18 was not specified by the committee constituted by District Returning Officer but since the calendar was made by Flex, therefore, valuing the nearest possible material to flex as plastic, calculation of price of Ex.P-18 was considered to be Rs.30/- per calendar. Thus, the assessment has been made by the petitioner taking the minimal possible rate.
According to the petitioner, there is no specific denial about the material used for making Ex.P-18 and as such, the statement of PW-1 that it was made of Flex and comparing the cost of Flex, the price was determined by the election petitioner and that cannot be said to be arbitrary because it was the assessment taking note of relevant facts and price of material used. The election petitioner has also alleged that there is no overwriting in the expense register of respondent No.1 in respect of rates of caps and calendars that too without any counter-signature.
Respondent No.1, in response to the submission made by the counsel for the election petitioner has claimed that it is the paper used in Ex.P-18/calendar which was used in the election of 2013. According to respondent No.1, the assessment of Election Expense Observer cannot be said to be unjustifiable in absence of any contrary material placed by the election petitioner. The manner in which the assessment has been made by the petitioner is not approved by any skilled person and according to respondent No.1, the issue be decided in his favour.50 EP NO.1 OF 2014
Considering the submissions made by the counsel for the parties and perusal of available material, this Court is of the opinion as under:-
This issue relates to Ex.P/18 (Calendars). As per the averments made in the election petition, 20000 calendars were used in 2013 election and its cost was shown as Rs.2/- each but lateron, pursuant to objection of election observer, cost of calendars was increased to Rs.7/- each. According to the petitioner, the actual cost of calendar was Rs.30/- each and total cost came to Rs.6,00,000/- and thus difference amount of Rs.4,60,000/- is required to be added in the expenses incurred in the election of returned candidate. Except PW-1 no other witness was examined in support of this issue. The stand of the petitioner is based upon the fact that Ex.P/18 was flex or something else. Respondent No.1 examined himself as DW-1 and other witnesses as DW-2 and DW-3. The cost as has been estimated by the petitioner is only on his presumption but nothing concrete has been produced so as to give support to the stand about the price of calendars as assessed by the petitioner. DW-3 although examined and has stated that Ex.P/18 has not been prepared on flex but it was printed on the paper. DW-3 was the employee of Box Corrugators Company, which is printing the material, therefore, his evidence cannot be ignored only on the basis of oral evidence that too of a person not related to the field of manufacturing election materials, the value of article cannot be assessed on the basis of presumption, surmises and conjectures. Therefore, this issue is decided in negative.51 EP NO.1 OF 2014
ISSUE NO.13 This issue relates to Ex.P/19, the Party Symbol. As per the petitioner, 500 party symbols have been used by respondent No.1 in the election of 2013, casting of one party symbol was assessed as Rs.11.40/- each. As per the election petitioner total expense was Rs.5,700/- but it has not been shown in the expenditure of respondent No.1 and therefore, in total amount of Rs.5,700/- is required to be added in the expense of election of 2013 of respondent No.1.
Pleading in this regard in election petition is available in paragraph-14(J) whereas in written-statement paragraph-34 the respondent No.1 has denied the allegation made in the election petition.
The plaintiff/petitioner has examined PW-1 and PW-2 whereas the defendant/respondent No.1 has examined DW-1.
As per the election petitioner, the cost of party symbols has been determined by comparing it with minimum rate of plastic flag as prescribed by the District Returning Officer. As per the petitioner, although plastic flag is very thin and party symbol is much thicker than it, but even otherwise assessing it minimally the cost came to Rs.11.40/- each and as such, Rs.5,700/- has to be added in the expense of respondent No.1.
The respondent No.1's counsel has denied this aspect saying that all the assessment has been made by the election petitioner with regard to campaign material ignoring the rate assessed by the Election Expense Observer whose assessment 52 EP NO.1 OF 2014 according to respondent No.1 is final and binding upon the candidates. As per the respondents, if any expense is shown in the expense register, but the Election Expense Observer objected the same then the difference is added in the expenditure register maintained by the candidate as notionally incurred to bring it down with the schedule register. The correction entry according to respondent No.1 so made cannot be considered to be a malpractice, corrupt practice or offence. According to respondent No.1, the assessment of price of campaign material, as per the petitioner, is as per his assumption and presumption and without advice of any skilled person who is acquainted with this field. Therefore, such assessment cannot be termed authentic.
Considering the submissions made by the counsel for the parties and perusal of available material, this Court is of the opinion as under:-
This issue relates to Ex.P/19 (party symbol). As per the petitioner, 500 items were used in election of 2013 by respondent No.1 showing value of each as Rs.11.40/-, but this expense was not shown in the expense register and therefore total amount of Rs.5700/- is required to be added. Although this fact is denied by respondent No.1 not only in the written-statement but also in the statement of DW-1 and DW-2 saying that Ex.P/19 is also not mentioned in the shadow expenses register maintained by the observer because party symbol was available in open market and it has not got printed by the returned candidate and therefore assessment made by the petitioner is hypothetical. There is nothing adduced by the petitioner showing that stand taken by 53 EP NO.1 OF 2014 respondent No.1 is not correct. No evidence except the statement of PW-1 that the party symbol has been used and got printed by returned candidate, such oral statement without there being any corroborative material cannot be decided in favour of the petitioner. Therefore, this issue is decided in negative.
The issues No.1 to 13 relate to the price of campaign material used by the returned candidate and the petitioner was not satisfied with the value of campaign material used by the returned candidate and shown in the expenses register, however, the election observer has approved the said price as and when objection was raised with regard to the price of material, the price was increased of that particular article and that increase is shown in the expense register and approved by the expenses observer. The Supreme Court in case of Jeet Mohinder Singh (supra) has observed that proving the charge of corrupt practice a mere preponderance of probabilities would not be enough. The same can be proved by clear, cogent and credible evidence. The charge shown has to be proved to the hilt, the standard of proof being the same as in criminal trial, a presumption of innocence available to the person charged. The election petitioner has not produced any expert so as to support his stand and assessment made by him with regard to the articles used as campaign material, but on the contrary respondent No.1 has produced the employee of company supplying the material, for proving the same. The view applied by Supreme Court in case of Jeet Mohinder Singh (supra) has also been approved and relied by the Supreme Court in subsequent judgment of Tukaram (supra) and this Court in case of 54 EP NO.1 OF 2014 Chandrabhansingh Choudhary (supra). The petitioner relied upon a decision in case of Shri Kanwar Lal Gupta (supra) saying that if election petitioner creates a doubt with regard to expenses made by returned candidate in the election by adducing evidence then onus shifted upon the returned candidate to lead evidence to justify his disclosure of expenses. According to the petitioner, strict proof of actual expenses not required once declaration of expenses given by returned candidate found to be false, the Court can assess the expenditure on the basis of evidence on record because expenditure is within the specific knowledge of first respondent. The petitioner has also relied upon various other decisions, but in all the cases initial burden lies upon the petitioner to produce some cogent material so as to create doubt in the mind of the Court that returned candidate has not given the correct price of the material used in the election and his disclosure of expenses is not proper. But here in this case whatever evidence has been produced by the petitioner i.e. only oral evidence that too based upon the presumption of price of particular article and no witness was called in the witness-box relating to field of manufacturing of used articles or involved in the business of selling such articles so as to give strength to presumption of the petitioner. Thus, as has already been observed hereinabove, the assessment of price as determined by the petitioner so as to declare the returned candidate has used corrupt practice is not sufficient.
ISSUE NO.14 55 EP NO.1 OF 2014 This issue relates to expense incurred by respondent No.1 on the polling day. There are various heads under this issue which have been pointed-out by the petitioner and he has also highlighted the expenses made thereof but did not show in the expense register. Accordingly, total amount i.e. Rs.73,340/- is required to be added in the expense of respondent No.1 in the election of 2013.
As per the pleading made in paragraph-14(K) of election petition, in the stationery head of each and every polling agent including cash amount to change identity of any voter or to raise any objection for which Rs.2/- for each objection calculated at Rs.20/- each and in this head Rs.9,520/- was shown by the petitioner to be added in the expenditure of respondent No.1. In another head i.e. with regard to vehicle used, as per the petitioner, three vehicles were used by respondent No.1 and as per the Election Expense Observer for one vehicle 15 liter diesel was shown to have been consumed and as such, cost of 45 liter of diesel on a polling day came to Rs.2,682/-. Though, voter list provided by respondent No.1 to each of his polling agent but cost of that voter list is not shown in the expense register which according to the petitioner came to Rs.20,260/- and travel expense of polling agents from Churhat to District Headquarters Sidhi according to the petitioner came to Rs.33,715/- and Rs.37,128/- has been spent on polling agents providing them food and refreshment items as whole day they sat as polling agent in the polling booth.56 EP NO.1 OF 2014
In paragraph-35 of written-statement, respondent No.1 has answered the pleading made in regard to this issue.
In the written-statement, it is stated by respondent No.1 that polling agents are the dedicated party workers and they feel honour to be selected as polling agents and they perform their duties considering their responsibility and if any expense is made by them for themselves only, it cannot be considered to be the expense of any political party and cannot be added in the expense of a particular returned candidate.
For consumption of 15 liter diesel, no material is made available to show whether any consumption of diesel has been made or not or that too by a candidate.
The election petitioner to substantiate the pleading made in relation to this issue examined PW-1, PW-2 and PW-3. Respondent No.1 examined DW-1 and DW-2.
The counsel for respondent No.1 submitted that the polling agents are local persons, they arrange meals from their home and as such, any expense under this head is made by the polling agent, cannot be included in the expense of a returned candidate.
As far as the voter list is concerned, Shri Gupta submitted that two copies of voter list are made available free of cost in terms of Section 78A of the Act, 1951 and polling agents get the same photocopied by their own expenditure. Therefore, it cannot be included as expense in the head of a returned candidate.
Likewise, for fuel consumption as per respondent No.1 a consolidated voucher prepared and submitted before the Election Expense Observer and therefore nothing is required to be added in 57 EP NO.1 OF 2014 this head. As per Shri Gupta, the charge of corruption can be proved only on the basis of documentary evidence or any strong evidence but not only on the basis of presumptive oral evidence.
Considering the submissions made by the counsel for the parties and perusal of material available, this Court is of the opinion as under:-
This issue relates to the expenses made by respondent No.1 on polling day. According to election petitioner, Rs.73,340/- are required to be added in the expenses of respondent No.1 for the election 2013. In support of the pleading made in the election petition, the petitioner examined PW-1, PW-2 and PW-3 whereas respondent No.1 examined DW-1 and DW-2. Although the petitioner is claiming that total sum of Rs.73,340/- be added in the expenditure of respondent No.1 and on the basis of oral evidence he tried to establish that the expenditure made by returned candidate in stationery, fuel used for the vehicle engaged in election work, the price of voter list, travelling expenses of counting agents from Churhat to District Head Quarter Sidhi and expenses made in food provided to the polling agents. But, no documentary proof has been produced.
The respondent took a stand that it is all based upon presumption and explained that so far as providing meals to the workers engaged in counting or working as polling agents, is concerned, since they were all local persons, therefore, they got meals from their respective homes. So far as the voter list is concerned, respondent No.1 has drawn attention of this Court towards the provisions of the Act 1951 where Section 78A read 58 EP NO.1 OF 2014 with Rule 85D of the Conduct of Election Rules clearly provides that each candidate shall be provided two copies of voter list free of cost. One copy of the same was supplied to the polling agents as per the statement of PW-1 and if agents so required get the same photocopied and as such, no expenditure incurred in that regard. As regards fuel expenses, consolidated voucher produced by the returned candidate but as there were some objections, therefore, additional notional value was provided and that has been approved by the Election Observer. By way of oral evidence, the witnesses tried to prove their stand taken in the election petition and also in written statement. However, taking note of the judgment of the Supreme Court in case of Uma Ballav Rath v. Maheshwar Mohanti and others reported in AIR 1999 SC 1322, in which the Supreme Court has observed that for setting aside an election, clear and cogent proof in support of allegation is essential but only on the basis of presumption election cannot be set aside, I am also of the view that unless any strong proof is produced by the election petitioner, it is difficult to rely upon oral stand of witnesses. Both the parties have contradicted the oral statements made by them and therefore, in absence of any strong material produced by the election petitioner, I am not inclined to give approval to the statement of the witnesses of the election petitioner and, therefore, this issue is decided in negative.ISSUE NO. 15
This issue relates to the expenses made in a victory rally because in the expense register nothing has been shown under this 59 EP NO.1 OF 2014 head, whereas as per the election petitioner estimated expense i.e. Rs.45,700/- was required to be added in this head.
Pleading with regard to this issue is available in paragraph- 14(K) sub-para-(E) of election petition and in paragraph-35 of written statement.
The plaintiff/petitioner has examined PW-1 and PW-5 whereas the defendant/respondent No.1 has examined DW-1 and DW-2.
The counsel for the petitioner Shri Upadhyay submitted that since the victory rally was held on the day of declaration of result, therefore, expenses are included in the expenses of respondent No.1. According to Shri Upadhyay the evidence of election petitioner corroborates by independent witness which shows that the victory rally was held on the suggestions given by respondent No.1.
However, respondent No.1 has denied this fact and submitted that there is no material available indicating that any such rally was held and whatever collected by the petitioner, that is based on CD and that CD is not made part of evidence.
According to Shri Gupta, the election petitioner did not disclose the name of any person who witnessed that rally and can be considered to be a source of information. The evidence adduced by PW-1 is not trustworthy and expenditure of Rs.45,700/- is nothing but an imaginary figure of election petitioner and in absence of any strong material with regard to victory rally, this issue should to be answered in negative.60 EP NO.1 OF 2014
Considering the submissions made by the counsel for the parties and perusal of available material, this Court is of the opinion as under:-
This issue relates to the expenses made by the returned candidate in the victory rally. As per the election petitioner nothing has been shown under this head in the expense register and according to the petitioner a sum of Rs.45,700/- was required to be added. In support of the pleadings made in the election petition, the petitioner examined PW-1 and PW-5 whereas respondent examined DW-1 and DW-2.
Perusal of evidence adduced by the parties, PW-1 was not claiming himself to be the eyewitness seen the victory rally. PW-5 does not disclose his source of information and as per the respondent, the returned candidate left for Bhopal immediately after declaration of result of election. The respondent has also stated that conducting a victory rally is a post election event because election ends after declaration of result.
In view of the Supreme Court's decision i.e. Gajanan Krishnanji Bapat and other v. Dattaji Raghobaji Meghe and others reported in AIR 1995 SC 2284, in which the Supreme Court has observed that the expenses incurred after declaration of result of election can possibly have no nexus with the purity of electoral process. The same is not required to be included in the expenses of returned candidate.
It was a case in which it was claimed that after declaration of result advertisements were published and the expenses incurred thereof claimed to be included in the election expenses but the 61 EP NO.1 OF 2014 Supreme Court has observed that the expenses incurred till the declaration of result of election has relevance to the expenses incurred in election but after declaration of result if any expense is made, it has no significance for connecting the same with the election expenses. Accordingly, in my opinion, only on the basis of oral information or in view of the Supreme Court as expressed in case of Gajanan Krishnaji Bapat (supra) victory rally and expenses incurred thereof is a post election event and therefore, that expense cannot be included in the election expenses of returned candidate. Accordingly, this issue is decided in negative.
ISSUE NO.16 This issue relates to the expenses incurred in a meeting dated 20.11.2013 spearheaded by Shri Rahul Gandhi and the expenses, as per the petitioner, came to Rs.13,88,073/- which required to be added in the expense of respondent No.1.
With regard to this issue, pleading in election petition is available at paragraph-14(L) whereas in written-statement, it is available at paragraph-41.
The petitioner in his election petition has given a detailed description of meeting and expenses made in organizing the same and further alleged that the vote appeal was made for respondent No.1 and, therefore, incurred expenses were required to be added in the expense of election of 2013 of respondent No.1.
Respondent No.1 denied the fact regarding any expense incurred in the said meeting and also denied that it was required to be added in the expense of respondent No.1.62 EP NO.1 OF 2014
According to respondent No.1, he being a star campaigner was present in the said meeting and the said meeting, according to respondent No.1, was held outside of his constituency and expenses of that meeting, therefore, cannot be added in his expenditure. The meeting was organized in favour of a candidate at Sidhi from where Shri Kamleshwar Prasad Dwivedi was contesting the election. He submitted that four candidates of Sidhi District had shared the podium with Shri Rahul Gandhi and his presence on the podium was as a star campaigner.
The witnesses namely, PW-1, PW-4 and PW-5 have been examined on behalf of the election petitioner and on behalf of respondent No.1, it were DW-1 and DW-4 who have been examined.
Learned counsel for the petitioner submitted that the presence of respondent No.1 in the said meeting is not disputed. He submitted that Shri Rahul Gandhi made vote appeal in favour of returned candidate and respondent No.1 has also made address in the meeting and in the said meeting people from Churhat constituency were also available, therefore, merely because this meeting has been held out of the constituency of respondent No.1, therefore, expenses incurred in the said meeting should not be added in the expense of respondent No.1, is not proper.
Shri Upadhyay submitted that in view of case of Keshavlal Gupta since benefit of that meeting had to go to respondent No.1, therefore, said expense should be equally divided amongst all the candidates present in the meeting and as such, there were four 63 EP NO.1 OF 2014 candidates then 25% of the expense was to be added in the expense of respondent No.1.
Shri Gupta on the other hand has submitted that the evidence adduced by the petitioner is precarious because the witnesses are not the strong evidence because none of them have admitted the fact that in the meeting he was present. According to Shri Gupta, the meeting was organized by the District Congress Committee of Sidhi Constituency which was out of the constituency of respondent No.1, but he was present there in the capacity of star campaigner. He further submitted that DW-4 namely Vinod Mishra has stated that the expenditure was Rs.80,000/- and three candidates who had shared the podium, the expenses divided in three parts and even shown in their expense register.
Considering the submissions made by the counsel for the parties and perusal of material available, this Court is of the opinion as under:-
This issue relates to expenses incurred in a meeting dated 20.11.2013 headed by Shri Rahul Gandhi and expenditure came thereon was assessed by the election petitioner as Rs.13,88,073/-
and, therefore, asked to be added in the expenses of respondent No.1 because in the expense register nothing has been shown.
Considering the pleadings made by the parties and the evidence adduced thereof, the said meeting was conducted out of the constituency of returned candidate as it was at Sidhi Constituency and that meeting was organized by the District Congress Committee for making appeal to the voters of Sidhi 64 EP NO.1 OF 2014 Constituency. The returned candidate being the President of State Congress shared the dais in the said capacity and also as a star campaigner of Congress Party. The election petitioner on the basis of oral submission has assessed the expenses made in the said meeting and also claimed that appeal of vote had also been made in favour of returned candidate and, therefore, the expenses made in the said meeting is required to be added in the election expenses of returned candidate.
The respondent's witness i.e. DW-4 namely Vinod Mishra in his statement has stated that total expenditure made in the meeting was a sum of Rs.80,000/-. Ex.D/12 is a document asking DW-4 who was the Election In-charge, the Returning Officer requested him to submit the expenditure made in the meeting and Ex.D/3 is a document showing expenditure made in the said meeting and that was Rs.79,934/-.
In rebuttal, noting has been produced by the election petitioner and, therefore, only on the basis of oral submission made by the election petitioner whereas the document Ex.D/3 showing the total expenditure in the said meeting, the stand of the petitioner cannot be relied upon. Although, the petitioner relied upon the judgment of Supreme Court in case of Kanwarlal Gupta (supra) but in my opinion, the oral evidence adduced by the election petitioner is a weak piece of evidence and as such that does not approve the stand taken by the election petitioner especially when the Supreme Court in case of Ram Awadesh Singh v. Smt. Sumitra Devi and others reported in AIR 1972 SC 580 has observed in the following manner:-
65 EP NO.1 OF 2014"This takes us to the appeal filed by the respondent. As mentioned earlier, the High Court has rejected the charges of corrupt practices levelled by the respondent against the appellant. Those charges were sought to be established only by oral evidence. The learned trial judge was unable to accept the evidence adduced in support of the alleged corrupt practices. Ordinarily this Court does not reappropriation Oral evidence. Our attention has not been ,invited to any exceptional circumstances in this case requiring us .to go into the evidence afresh. It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large (number of witnesses, some of whom may be seemingly disinterested' But that by itself is no guarantee of the truth of the .evidence adduced. Mr. Tarkunde, learned Counsel for the respondent put forward three broad contentions in support of the (1)[1955] S.C.R. 509. appeal preferred by the respondent. They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances, (2) the High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses. None of these contentions appear to have any merit. Each instance of a corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence."
Further, in case of Surinder Singh v. Hardial Singh and others reported in AIR 1985 SC 89, the Supreme Court has observed as under:-
66 EP NO.1 OF 2014"By a catena of decisions of this Court it has by now been very well settled that allegations of corrupt practice are quashi- criminal charges and the proof that would be required in support of such allegations would be as in criminal charge."
"The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharge of proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous."
And also in a case of Thakur Sen Negi v. Dev Raj Negi and another reported in AIR 1994 SC 2526, the Supreme Court has observed as under:-
"It must be remembered that in an election dispute the evidence is ordinarily of partisan witnesses and rarely of independent witnesses and, therefore, the Court must be slow in accepting oral evidence unless it is corroborated by reliable and dependable material. It must be remembered that the decision of ballot must not be lightly interfered with at the behest of a defeated candidate unless the challenge is on substantial grounds supported by responsible and dependable evidence. The election result shows that both the contesting candidates were influential persons having strong hold on large numbers of people of the constituency."
The Supreme Court has also observed that "mere suspicion was not enough, positive proof was required which was not forthcoming".
67 EP NO.1 OF 2014The Supreme Court in case of Navjot Singh Sidhu v. Om Prakash Soni reported in AIR 2016 SC 4965 has observed as under:-
"12. In paragraphs 12 to 15 of the Election Petition, the respondent- election petitioner, by giving details of expenditure incurred by the appellant in connection with public meetings held on different dates and in different venues, has contended that the expenses incurred on these public meetings is much more than what has been shown in the return of election expenses under the said head (Rs.1,83,466/-). While the details of the meetings i.e. the time, date and venue are mentioned and so is the number of persons who are claimed to have attended the meetings, we do not find any basis as to how the election petitioner had arrived at the quantum of expenses which he alleges to have been incurred by the returned candidate in holding each of the said meetings. What are the source(s) of information of the election petitioner with regard to the details furnished; whether he has personal knowledge of any of the said meetings; who are the persons who informed him of the details of such meetings; what is the basis of the estimate of the number of persons present and the facilities (chairs etc.) that were hired and the particulars of the refreshments served are nowhere pleaded. All such particulars that are an integral part of the allegation of corrupt practice alleged are absent. In the absence of the aforesaid particulars, there can be no doubt that insofar as the allegations made in paragraphs 12 to 15 of the Election Petition is concerned, the same do not disclose any triable issue so as to justify a regular trial of the said allegations. The allegations mentioned in paragraphs 12 to 15, so far as commission of corrupt practice of submission of false/incorrect return of election expenses is concerned, are, therefore, struck off."68 EP NO.1 OF 2014
In view of the aforesaid, it is clear that the stand taken by the election petitioner for including the expenditure of meeting as has been assessed by the election petitioner to the tune of Rs.13,88,073/- is nothing but a suspicion and without any strong material or evidence in support, this issue is decided in negative.
ISSUE NO.17 This issue relates to expense made by respondent No.2 Ramnaresh Saket and respondent No.13 Ramsiya Kol, but according to the petitioner, they were dummy candidates of respondent No.1 and total expenditure shown by them Rs.2,18,560/- should be added in the election expense of respondent No.1.
The pleading made in the election petition in paragraph- 14(N) and in written-statement, the said pleading is available in paragraph-43.
The plaintiff has examined PW-1 whereas respondent No.1 examined DW-1, DW-2 and DW-5.
As per the petitioner, respondent Nos.2 and 13 namely Ramnaresh Saket and Ramsiya Kol were dummy candidates of respondent No.1 and, therefore, whatever expense is made by them has to be added in the expense of respondent No.1 because they have contested the election just to support respondent No.1.
Respondents have denied this allegation and submitted that there is nothing like dummy candidate. Every candidate contested the election for his own win.
69 EP NO.1 OF 2014Shri Gupta appearing for the respondents has submitted that there is nothing available on record and no evidence is made available to ascertain this fact merely because some of the agents of Congress Party were also the agents of dummy candidates that cannot be considered to be proved that respondent Nos.2 and 13 have contested the election just to support respondent No.1. He submitted that DW-5 has been examined who has categorically stated that since the Congress Party has not given any weightage to him, therefore, he became the agent of other candidates. Shri Gupta submitted that in absence of any strong evidence, this issue be decided in negative.
Considering the submissions made by the counsel for the parties and perusal of available material, this Court is of the opinion as under:-
This issue relates to expense made by respondent No.2 Ramnaresh Saket and respondent No.13 Ramsiya Kol as according to the election petitioner, they were the dummy candidates of respondent No.1 and total expenditure shown by them to tune of Rs.2,18,560/- should be added in the election expenses of respondent No.1.
After examining the statement made by the witnesses and the stand taken by the counsel during the course of argument, there is no strong material available on record adduced by the election petitioner indicating that these two persons spent money with the consent and permission of respondent No.1 just to support him and to make future prospect in his favour. In fact, I am not convinced with the submission made by learned 70 EP NO.1 OF 2014 counsel for the petitioner that these two candidates though contested election, but they were dummy candidates and supporting the returned candidate and, therefore, whatever expenses shown by them in their election should be added in the expenses incurred by respondent No.1 in the election. Taking note of the view of the Supreme Court in number of occasions, only on oral submissions pointing out few circumstances which in fact are nothing but a suspicion created by the petitioner, allegation of corrupt practice made against the returned candidate cannot be relied upon. The Supreme Court in the case of Uma Ballav Rath (supra) has very categorically observed that to avoid an election, it is necessary that cogent evidence is led in support of the charge. An election cannot be set aside only "presumptions", surmises and conjectures. Clear and cogent proof in support of allegations is essential. As such, the material produced by the petitioner and submission advanced, do not attract this Court to hold the expenses of two candidates who according to the petitioner were dummy candidates, be added in the expenses of the returned candidate. The issue is accordingly decided in negative.
ISSUE NO.18 This issue relates to the meeting held in the village Kapuri Kothar and the expense of Rs.1,56,150/- was although made but not shown in the election expense.71 EP NO.1 OF 2014
The respondents in paragraph-44 of written-statement denied this averment. They submitted that the only witness namely Vikash Upadhyaya who claimed himself to be eyewitness was not examined, therefore, adverse inference should be drawn against him. PW-1 was not the eyewitness and in absence of any material about said meeting and without disclosing the fact and source of information in the election petition, the evidence adduced is of valueless. Shri Gupta submitted that DW-1 had denied the presence of Bharat Singh and further stated that he did not ask Bharat Singh to do any work for him in the election. This issue accordingly deserves to be decided in negative.
Considering the submissions made by the counsel for the parties and perusal of available material, this Court is of the opinion as under:-
This issue relates to the meeting held in the Village Kapuri Kothar and the expenses of Rs.1,56,150/- which was though made, but not shown in the election expenses incurred by respondent No.1.
The respondent in his written-statement denied the averments made in the petition. In support of this issue though PW/1 was examined, but he was not the eyewitness to the meeting. Though Vikash Upadhyay was said to be an eye witness, but he was also not examined. DW/1 denied the presence of Bharat Singh in the meeting and stated that Bharat Singh was never asked to do any work in the election. The actual expenditure made is shown in the register and that has been accepted after adding some notional expenditure. In 72 EP NO.1 OF 2014 absence of any strong material and considering the fact that the Supreme Court in number of occasions has observed that in absence of any specific material not disclosing the source of information about the details furnished, the same cannot be used against the returned candidate against whom charge of corrupt practice is levelled, I am of the opinion that whatever evidence has been adduced by the election petitioner is not enough and sufficient to decide this issue in favour of petitioner and as such, it is decided in negative.
ISSUE NO.19 With regard to this issue i.e. for putting-up two hoardings, expenditure of Rs.18,000/- is required to be added.
In paragraph-14(P) of election petition pleading with regard to this issue is available and its denial in paragraph-45 of written- statement.
Shri Gupta appearing for the respondents submitted that the pleading with regard to this issue is based upon a CD and that CD is not taken note of in evidence, therefore, nothing corroborative evidence is available, whereas DW-2, the election agent of respondent No.1 has specifically denied the use of these hoardings and also denied that any expenditure made for it and submitted that this issue deserves to be answered in negative.
This issue relates to hoardings and as per the pleadings made by the petitioner, two hoardings were placed in the main market of Churhat, but, their cost was not added and as per the calculation made by the petitioner applying minimum rate 73 EP NO.1 OF 2014 prescribed by the DRO vide Annexure D-1, the claim of Rs. 18,000/- was made for those two hoardings, therefore, in the expenditure of election of respondent No.1 of 2013 this amount has to be added, as it has not been shown in his expenditure register. Pleadings in this regard is available in paragraph 14(P) of the election petition.
The respondent/defendant in the written-statement paragraph 45 denied the allegation and submitted that he has not used these hoardings in 2013 election and these hoardings do not reveal vote appeal for respondent No.1, therefore, it was not added in the expenditure made by him for his election and hence in the expenditure register it was not shown. In this regard, respondent No. 1 has relied upon the statement of PW-1.
As per the respondents, the source of information is based on CD, which remained uncorroborated with any other available evidence. It is also stated that there was no appeal to vote in the hoardings and DW-2, the Election Agent, in his statement categorically stated that the hoardings were not used in the election and, therefore no expenditure can be said to have been incurred by respondent No. 1 for the said hoardings.
Considering the submissions made by the learned counsel for the parties and the available material, this Court is of the view as under:-
This issue relates to hoardings expenditure amounting to Rs.18,000/- which has been asked to be added in the expenses incurred by respondent No.1 in the election.74 EP NO.1 OF 2014
As per the pleadings and evidence adduced by the parties, the information with regard to hoardings is CD based and there is no other evidence and material produced in support of this allegation. The hoardings do not reveal that any vote appeal was being made. The election agent (DW/2) in his statement denied this fact that the said hoardings were used in election or any election expenditure was made thereon and therefore, neither in the expenditure register nor in shadow register maintained by the Election Observer these hoardings found place. The Supreme Court in a case reported in AIR 1999 SC 3655 [Narender Singh Vs. Mala Ram and another] has observed as under:-
"15. In the matter of appreciation of evidence in election disputes certain principles have been stated by this Court.
The general principle is that the onus to prove the essential facts which constitute the cause of action in an election petition is upon the person making it, namely, the election petitioner. What evidence would be sufficient to prove a particular fact depends upon the circumstances of each case. When the evidence adduced is capable of drawing an inference either way, the view that is favourable to the returned candidate will have to be preferred. In Ram Singh v. Col. Ram Singh [1985 Supp SCC 611] the principle set out by this Court, by majority, is as follows: (SCC p. 616, para 3) "In borderline cases the courts have to undertake the onerous task of, 'disengaging the truth from falsehood, to separate the chaff from the grain'. In our opinion, all said and done, if two views are reasonably possible -- one in favour of the elected candidate and the other against him
-- courts should not interfere with the expensive electoral process and instead of setting at naught the election of the winning candidate should uphold his election giving him the benefit of doubt. This is more so where allegations of fraud or undue influence are made."
75 EP NO.1 OF 201416. In election disputes emotions of the public are raised and opinions are sharply divided between groups. In such circumstances oral testimony in favour of one or the other party is easy to be adduced but the same will have to be critically examined and, therefore, oral evidence is to be assessed with a great deal of care. In Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660 : (1975) 1 SCR 643] it was observed by this Court: (SCC pp. 671-72, para 21) "We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses apparently respectable and disinterested, to speak to short and simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny-cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard-won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life."
17. Again in Thakur Sen Negi v. Dev Raj Negi [1993 Supp (3) SCC 645] it was observed: (SCC p. 648, para 3) "It must be remembered that in an election dispute the evidence is ordinarily of partisan witnesses and rarely of independent witnesses and, therefore, the court must be slow in accepting oral evidence unless it is corroborated by reliable and dependable material. It must be remembered that the decision of the ballot must not be lightly interfered with at the behest of a defeated candidate unless the challenge is on substantial grounds supported by responsible and dependable evidence.""
76 EP NO.1 OF 2014Thus, in absence of proper material, this issue is decided in negative.
Issue No. 20:
This issue relates to the vote appeal made by respondent No.1 on 05.11.2013 and also on 23.11.2013.
As per the petitioner, respondent No. 1 on both these days visited the temple of 'Goddess Jhadwa Devi', organized meeting over there and made vote appeal in the name of deity. However, respondent No.1 in his written-statement has denied this fact and also denied that any vote appeal was made by him and he has also denied the meeting of 05.11.2013. As per the respondent, a meeting was held on 23.11.2013 for which required permission was obtained and that permission is also available on record as Ex.D/20. It is also denied that any vote appeal was made in the name of 'Goddess Jhadwa Devi' and no evidence in this regard is produced by the petitioner. As per the respondent, visit to temple on 05.11.2013 before filing of nomination was nothing but a reverred visit and he had also gone to tomb (Samadhi) of his father. In absence of any evidence about vote appeal, this issue, as per the respondent, has to be decided in negative.
As per the petitioner holding a meeting in courtyard of temple of 'Goddess Jhadwa Devi' and making vote appeal in the name of idol and also in the name of 'Goddess Durga' is just to attract votes of Thakur community.
The plaintiff has examined PW-1 and PW-4 whereas the defendant examined DW-1 and DW-2.77 EP NO.1 OF 2014
Considering the submission made by the learned counsel for the parties and material available on record, this Court is of the view as under:-
This issue relates to vote appeal made by respondent No.1 on 05.11.2013 and also on 23.11.2013.
As per the election petitioner, respondent No.1 on the said dates visited the temple of 'Godess Jhadwa Devi', organized a meeting over there and made a vote appeal in the name of deity. However, this fact has been denied by respondent No.1 in the written-statement. The respondent produced Ex.D/20 which is a permission sought from the authority with respect to the meeting held on 23.11.2013 and according to respondent, no vote appeal was made in the name of 'Godess Jhadwa Devi'. So far as the meeting held on 05.11.2013 is concerned, on the said date, the respondent visited the temple and tomb (samadhi) of his father before filling of nomination paper. However, nothing was adduced by the petitioner saying that any vote appeal was made in both the occasions. Even PW/1 in his statement has admitted that no vote appeal was made in the courtyard. In absence of any material indicating that any vote appeal was being made by respondent No.1 while visiting the temple which in fact situated in an open private land, nothing adverse can be drawn against him about violating any of the provision of the Act and that cannot be considered to be a corrupt practice as per Section 123(3) of the Act. In a case reported in AIR 2002 KARNATKA 377 [Prabhakar Rane Vs. Asnatikar Vasant 78 EP NO.1 OF 2014 Kamlakar], it was contended before the Court that by arranging the meetings in the community halls or temples of each of the community, wherein the achievements of the returned candidate were highlighted and even promises were made for future help if elected and especially when the respondent was present in most of these meetings, according to the petitioner therein this was not an act to promote the candidature of any particular person only on the ground of caste, religion, community etc. The Karnatka High Court has observed that this does not fall within the purview of Section 123(A) amounting to promoting or attempt to promote communal hatred. In view of the aforesaid, I am of the opinion that nothing contrary in any of the provision of the Act is found against respondent No.1 and as such, this issue is decided in negative.
Issue No. 21:
This issue relates to distribution of demand drafts to the voters as bribe during the period of filling up nomination and on the day of vote-counting. According to the petitioner, it tantamount to corrupt practice in terms of Section 123(1)(A)(b) of the Act.
Pleading in this regard is available in paragraph 19 of the election petition and the document exhibited by the petitioner as Ex. D/11.
In written statement, paragraph 48 is relevant.79 EP NO.1 OF 2014
The election petitioner examined PW-1 whereas respondent examined DW-1 and DW-4. As per the petitioner, respondent No.1 through his agent Bharat Singh distributed demand drafts to the voters and according to the petitioner, it comes under the definition of corrupt practice. Conversely, respondent No.1, in his written-statement has denied this fact and submitted that the said demand drafts bearing signature and seal of his Vidhayak Pratinidhi, but, it was not used or distributed for the purpose of attracting the voters. He has submitted that visage of the demand drafts speaks for itself that it was not valid at the time of election, precisely, the date mentioned on the demand drafts, itself nullifies the validity of demand drafts. He has submitted that there is no evidence available on record that the demand drafts had any relevance on the day of election because they were antedated and were valid prior to the election. According to the respondent, the demand drafts had no significance for the election of 2013 and no case of bribe as per Section 123(1) of the Act is made out.
Considering the submission made by the learned counsel for the parties and material available on record, this Court is of the view as under:-
This issue relates to distribution of demand drafts to the voters as bribe during filling of nomination form and also on the date of counting of votes and as such, conduct of respondent No.1 tantamount to corrupt practice in terms of Section 123(1) (A)(b) of the Act.
In view of the evidence adduced by the election petitioner, it is not clear as to who distributed the demand drafts.
80 EP NO.1 OF 2014As per the date contained in the demand draft, it is difficult to co-relate it with the election because it was antedated demand draft i.e. 08.03.2013 and also Rajkumari Saket to whom demand draft was said to have been given, was not brought to the Court so as to examine her. However, DW/1 denied the allegation and also the fact that the demand draft was distributed for gaining the votes whereas it was distributed by the Collector or SDM providing Swekchha Anudan Rashi (LosPNk vuqnku jkf'k). According to respondent No.1, Bharat Singh was never authorized by him for distribution of demand drafts and the work of election was not at all entrusted to Bharat Singh.
In absence of any strong material connecting Bharat Singh with the returned candidate and also considering the date contained in the demand draft which in fact was not relevant with the election date, nothing adverse can be drawn against the returned candidate and therefore, this issue is decided in negative.
Issue No.22 This issue is in respect of exceeding the limit of Rs.16,00,000/- by respondent No.1 in the election which is a corrupt practice as per Rule 90 of the Conduct of Election Rules read with S.77(3) and 123(6) of the Representation of People Act.
In view of the submissions advanced by learned counsel for the parties, this issue is decided in negative because the 81 EP NO.1 OF 2014 election petitioner failed to establish that the expenditure made by the returned candidate in the election of 2013 exceeded the limit of Rs.16,00,000/- and as such, he cannot be held guilty of corrupt practice as per Rule 90 of the Conduct of Election Rules read with S.77(3) and Section 123(6) of the Act.
Issue Nos. 23, 24 and 25:
These issues are inextricably linked to each other. Although there is no pleading in this regard, but as per the allegation made, the result of the election materially affected by corrupt practice adopted by the respondent No.1 and as such it is claimed that the election be declared as null and void as provided under Section 100 (1)(ii) of the Act.
The respondent has denied this aspect and submitted that there is no pleading showing his consent to any of his agents for doing corrupt practice and as a consequence of which, the result of election so far as respondent No.1 is concerned, got materially affected. According to the respondent, no evidence is available substantiating that he was indulged in any corrupt practice. He has relied upon several decisions and submitted that these issues deserve decision favourable to him. It is also denied by the respondent that he did not file a correct and true account of expenses before the District Election Officer.
Shri Gupta appearing for the respondent submitted that the charge of maintaining incorrect account or furnishing untrue account by itself does not amount to corrupt practice and as such it does not fall within the ambit of Section 123(6) read with 82 EP NO.1 OF 2014 Section 77(3) of the Act of 1951. He submitted that the Election Commission had examined this aspect and when no objection had been raised about furnishing incorrect information, the same cannot be questioned again. As per the respondents, Bharat Singh, the election agent, did not produce himself as a witness, therefore, in absence of any evidence, especially of the witness, who could prove the pleading, adverse inference should be drawn because best available evidence could not be produced. Shri Gupta, therefore, submitted that the issue regarding corrupt practice is not established by adducing cogent and proper evidence by the witnesses produced.
Considering the submissions made by the parties and available material, this Court is of the following view:
So far as these issue Nos.23, 24 and 25 are concerned, they are intrinsic and in view of the discussions made hereinabove while deciding the other issues framed by this Court, it is found that the returned candidate was not involved in any corrupt practice. It is also not found that respondent No.1 had filed incorrect account of expenses before the District Election Officer and as such, his conduct cannot be said to be contrary to the provisions of Section 123(6) read with Section 77(3) of the Act. Accordingly, these issues are decided in negative.
Considering the view taken by the Supreme Court in number of cases discussed hereinabove, I have no hesitation to say that levelling a charge of corrupt practice is easy, but to prove the same is difficult. The Supreme Court consistently has 83 EP NO.1 OF 2014 observed that election petition levelling a charge of corrupt practice as per the meaning of sub-sections (1) to (8) of Section 123 of the Act, claiming to set aside the election of the returned candidate is regarded quasi-criminal in nature requiring a strict proof of the same because the consequences are not only very serious but also penal in nature. It may be pointed that on the proof of any of the corrupt practice as alleged in the election petition it is not only the election of the returned candidate which is declared void and set aside but besides the disqualification of the returned candidate, the candidate himself or his agent or any other person, as the case may be, if found to have committed corrupt practice may be punished with the imprisonment under Section 135-A of the Act. It is for these reasons that the Court insists upon a strict proof of such allegation of corrupt practice and not to decide the case on preponderance of probabilities. The evidence has, therefore, to be judged having regard to these well settled principles.
The election petitioner tried to establish by adducing oral evidence comparing the material used in campaign material to substantiate that the returned candidate has shown the lesser price value just to be within the outer limit of prescribed election expenses, but actually the value of those campaign material was much higher and, therefore, according to him, the difference amount as per his calculation was required to be added in the expenses incurred by the returned candidate in the election of 2013. However, considering the material produced 84 EP NO.1 OF 2014 by the election petitioner, this Court is of the opinion that the view taken by the Supreme Court in respect of corrupt practice is very specific whereas the evidence adduced by the election petitioner is not of that standard so that the returned candidate can be brought within the clutches of guilt for adopting corrupt practice.
8. Before parting with the case, an aspect of contemplating over the pending application is also required to be dealt with. In that, an application (I.A.No.2238/2017) was filed by respondent No.1 under Order VI Rule 16 of CPC r/w Section 86 and 87 of the Representation of People Act, 1950 and this Court by order dated 21.04.2022 had observed that this application would be decided at the time of final decision of the election petition. The respondent is basically seeking a direction from this Court that the pleadings of election petition and facts relating to the information extracted from a CD, annexed with the petition, may be deleted and removed from the petition. As per respondent No.1, since the electronic evidence i.e. CD annexed with the petition has been found inadmissible, therefore, the application seeking for striking out the pleadings may be allowed and appropriate direction may be issued to the petitioner for deleting those pleadings as has been claimed by respondent No.1 in his application.
In repartee, a reply has been filed by the petitioner to the said application and submitted that it is nothing but a delaying tactics. It is submitted by the petitioner that the order passed by 85 EP NO.1 OF 2014 the High Court on earlier application filed by respondent under Order VI Rule 16 of CPC, was questioned before the Supreme Court by way of filing SLP and even after examining all the pleadings, it was observed by the Supreme Court that the pleadings made in the election petition do not warrant striking out by invoking the provision of Order VI Rule 16 of CPC. According to the petitioner, the application is misconceived and in the light of the order passed by the Supreme Court in earlier application, this application deserves to be dismissed.
Considering the submissions made by the learned counsel for the parties and perusal of the application and discussion made hereinabove dealing with the issues involved in the case, I am also of the opinion that the application submitted by respondent No.1 is sans substance and even without deleting the respective portion of pleadings, which is sought to be deleted from the election petition, proper adjudication can be made. Accordingly, finding the application to be meaningless, it is hereby rejected.
9. Resultantly, the election petition fails and is hereby dismissed.
The record called earlier by this Court, be returned to the District Election Officer, Sidhi.
(Sanjay Dwivedi) Judge sudesh / all SUDESH Digitally signed by SUDESH KUMAR SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, KUMAR st=Madhya Pradesh, 2.5.4.20=1d5e479f08e68eda8f9271dbbe2 c4bc3916264aec736f7c5f5885257f5eeaeb 7, pseudonym=70EE703D36E97ABB20BA3C SHUKLA 79C921929E09400A16, serialNumber=7D462390C18350EF7C4081 1B12AB45D82AF1259878762BAC356DCFA 877F02654, cn=SUDESH KUMAR SHUKLA Date: 2022.08.26 10:49:08 +05'30'